Gurinder S. Gill v. Zurich Insurance Company, 1999 ONFSCDRS 187

Neutral Citation: 1999 ONFSCDRS 187

FSCO A98-001542

BETWEEN:

GURINDER S. GILL

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

William J. Renahan

Heard:

By telephone conference call on August 20, 1999.

Appearances:

Glenn Bowie for Mr. Gill

William J. McCorriston for Zurich Insurance Company

The Applicant, Gurinder S. Gill, was injured in a motor vehicle accident on October 19, 1995. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits on January 24, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Gill applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties agreed that the preliminary issue is:

Is Zurich estopped from relying on the limitation period with respect to Mr. Gill's application for arbitration claiming income replacement benefits?

Mr. Gill also argued that Zurich's conduct after he filed his Application for Arbitration amounted to a waiver. I therefore find that the second preliminary issue is:

Did Zurich waive its right to rely on Mr. Gill's non-compliance with the limitation period?

Zurich is not estopped from relying on the limitation period.
Zurich did not waive its right to rely on Mr. Gill's non-compliance with the limitation period.

By letter dated January 22, 1996, Zurich advised Mr. Gill that it was terminating weekly income replacement benefits of $185 effective January 24, 1996. It advised Mr. Gill that it would keep his file open for medical claims. Mr. Gill applied for mediation and on January 16, 1998 the mediator issued her report which indicated that the duration and amount of income replacement benefits were in dispute. Mr. Gill argued that a procedural agreement in the report which provided for the exchange of certain medical and income tax information estopped Zurich from relying on the limitation period.

The parties agree, and I find, that by operation of subsection 72(2) of the Schedule, the limitation period for commencing an arbitration dealing with the issue of the amount and entitlement to income replacement benefits was extended 90 days to April 16, 1998. Mr. Gill filed his application for arbitration on December 16, 1998 and conceded that by operation of section 72 of the Schedule it was filed after the limitation period had expired. However, he argued that Zurich was estopped from relying on the limitation period.

Procedural matters:

Prejudice:

When I reviewed the file I found a copy of an offer of settlement submitted by Mr. Bowie. I took the offer out of the file and disposed of it. Counsel for Zurich had no objection to me hearing the matter and I did not feel that I was prejudiced by seeing the offer of settlement and so I heard the matter.

Adjournment:

At the conclusion of his argument, Mr. Bowie asked Mr. Gill to give evidence notwithstanding the parties had agreed that the matter was to proceed on the basis of documentary evidence and submissions. I allowed Mr. Gill to speak and decided not to deal with whether I should adjourn the matter for cross-examination by Zurich because Mr. Gill's statements, even if accepted, would not change the result in his favour.

Is Zurich estopped from relying on the limitation period?

An insurer may be estopped from raising a limitation period against an applicant, in circumstances in which the applicant reasonably relies on the insurer's conduct, to the applicant's detriment."² Mr. Gill argued that the agreement at mediation estopped Zurich from relying on the limitation period. The agreement, as explained by counsel, provided that Mr. Gill would provide Zurich with an authorization which would allow it to obtain a medical report from an orthopaedic surgeon. Mr. Gill also agreed to provide Zurich with income tax returns and unemployment insurance commission documentation. On January 20, 1998, Zurich wrote to Mr. Gill and asked him to provide the material he had agreed to provide at mediation.

The agreement at mediation took place before the expiration of the limitation period in April 1998 and was part of the normal investigation and assessment an insurance company does with any claim. I find nothing in the mediation agreement which amounts to conduct by Zurich which Mr. Gill relied on to his detriment and caused him to miss filing his application before the expiration of the limitation period on April 16, 1998. Further, Mr. Gill's failure to produce the documents he agreed to produce does not extend the limitation period.

Did Zurich waive its right to rely on Mr. Gill's non-compliance with the limitation period?

"Waiver requires an intentional relinquishment of rights."³ As of April 16, 1998, Zurich had the right to rely on the limitation period. It raised the expiration of the limitation period in its Response to the Application for Arbitration.

Mr. Gill conceded that the limitation period expired on April 16, 1998. He relied on two letters from Zurich in his argument that Zurich waived its right to rely on his non-compliance with the limitation period.

On October 27, 1998, Zurich wrote to Mr. Gill and advised him that it had closed his file. On December 16, 1998, Mr. Gill filed for arbitration. On January 15, 1999, Zurich again asked Mr. Gill to provide the material he had agreed to provide at mediation.

Even if I accept Mr. Gill's statement that the Zurich adjuster made a settlement offer in January 1999, none of this information amounts to Zurich intentionally relinquishing its right to rely on the limitation period with respect to the claim for income replacement benefits.

I therefore find that Zurich did not waive its right to rely on Mr. Gill's non-compliance with the limitation period with respect to the issues of entitlement and amount of income replacement benefits.