Neutral Citation: 1999 ONFSCDRS 189
FSCO A99-000018
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
TOY ATT LEE
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Joyce Miller
Heard:
August 30 and 31, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Harvey S. Consky for Mr. Lee
William A. McClelland for Dominion of Canada General Insurance Company
Issue:
The Applicant, Toy Att Lee, was injured in a motor vehicle accident on December 4, 1995. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.1 Dominion terminated weekly caregiver benefits on April 20, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Lee applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act"). The preliminary issue is:
Is Mr. Lee precluded from proceeding to arbitration because his Application for Arbitration was not filed within the two-year limitation period set out in subsection 281(5) of the Act and subsection 72(1) of the Schedule?
Result:
Mr. Lee is precluded from proceeding to arbitration.
The Law:
Subsection 281(5) of the Insurance Act provides that:
A proceeding in a court or an arbitration proceeding in respect of statutory accident benefits must be commenced within two years after the insurer's refusal to pay the benefit claimed or within such longer period as may be provided in the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 281 (5); 1993, c. 10, s. 1.
Section 72 of the Schedule provides that:
(1) A mediation proceeding under section 280 of the Insurance Act or an arbitration or court proceeding under section 281 of the Act in respect of a benefit under this Regulation shall be commenced within two years from the insurer's refusal to pay the amount claimed or, if the person has engaged in an employment as permitted by section 14 or has returned to elementary, secondary or post-secondary education as permitted by section 17, within two years of the insurer's refusal to pay further benefits.
(2) Despite subsection (1), an arbitration or court proceeding under section 281 of the Insurance Act may be commenced within ninety days after the mediator reports to the parties under subsection 280(8) of the Act.
In the case of Veldhuizen and Coseco Insurance Company,2 Arbitrator Eban Bayefsky undertook an in-depth review of the arbitration decisions on time limits and summarized the principles that emerged from these decisions. Although the Veldhuizen decision and the cases it relied on were based on arbitrations relating to the predecessor to the present Schedule, Bill 68,3 nevertheless, I find that these principles, which I agree with, are relevant and applicable to the present case. These principles are as follows:
(1) An arbitrator does not have a general discretion to extend the time limits prescribed in the Act and Schedule.4
(2) To determine if the limitation period applies in a particular case, it must first be determined whether, and when, there was a refusal to pay benefits, and then whether the insurer is estopped from relying on the limitation period that runs from the date of the refusal.5
(3) The insurer must show that the refusal was clear and unequivocal, and was communicated to the applicant in writing, with supporting reasons.6
(4) An insurer may be estopped from relying on the limitation period if the applicant relied to his or her detriment on the insurer's conduct or if the insurer unreasonably delayed the applicant in processing the claim.7
(5) The limitation period runs continuously from the time of the refusal unless the applicant has been misled or deceived by the insurer in subsequent dealings on the claim or the applicant has returned to work or school within the meaning of sections 16 and 26 of the Schedule8
EVIDENCE:
The parties proceeded on an Agreed Statement of Facts.
Agreed Statement of Facts
The Applicant, Troy Art Lee was involved in a motor vehicle accident which occurred on December 4, 1995.
The Applicant submitted an Election of Benefits form9 to Dominion of Canada dated January 5, 1996 which was received by Dominion of Canada on January 9, 1996.
Dominion of Canada paid caregiver benefits to the Applicant as a rate of $350.70 per week from December 11, 1995 to April 20, 1996.
Dominion of Canada terminated the Applicant's caregiver benefits by Explanation of Assessment form dated February 26, 199610 and letter dated February 27, 1996.11 The form and letter indicated that caregiver benefits would be terminated as of March 10, 1996.
The Applicant applied for mediation by Application for Mediation dated April 4, 1997.12
The Mediator's report was dated July 3, 1997.13
The arbitration was commenced by an Application for Arbitration which was stamped "Received" on December 31, 1998 and stamped "Received by Dispute Resolution Group" on January 4, 1999.14
Mr. Lee testified that Action Accident Benefits handled his application for benefits, and that Mr. Philip Yeung, of Royce, Yeung and Associates, represented him at mediation. Mr. Lee stated that after the mediation, Mr. Yeung advised him that there would be an arbitration hearing. Mr. Lee testified that he had limited understanding of the arbitration process and that he relied on Mr. Yueng, who was not a lawyer, to take care of things for him.
ANALYSIS AND FINDINGS
I find that the agreed statement of fact and the evidence filed clearly shows that Mr. Lee applied for arbitration15 more than two years after he had received his notice of termination of benefits from Dominion.16 I find that Dominion's notice of termination was "clear and unequivocal." I did not receive any probative evidence which showed that Dominion was estopped from relying on the limitation period.
The fact that Mr. Lee did not understand the arbitration system, and relied on an agent, rather than a lawyer, to process his accident benefits is something I do not have the jurisdiction to take into consideration. An arbitrator does not have the discretion to consider the equitable remedy of relief from forfeiture that is provided in section 129 of the Act. Nor, as set out above, does an arbitrator have a general discretion to extend the time limits prescribed in the Act and Schedule.
Accordingly, I find that Mr. Lee is precluded from proceeding to arbitration because his application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Act and subsection 72(1) of the Schedule.
EXPENSES:
I may now be spoken to on the issue of expenses.
September 30, 1999
Joyce Miller
Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 189
FSCO A99-000018
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
TOY ATT LEE
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Lee's Application for Arbitration is dismissed
September 30, 1999
Joyce Miller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
- (OIC A-015549, October 12, 1995)
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
- Rahman and Co-operators General Insurance Company (OIC A-000854, December 21, 1993); Zeppieri and Royal Insurance Company of Canada (OIC A-005237, February 17, 1994), upheld on appeal (OIC P-005237, December 22, 1994); Zere and Royal Insurance Company of Canada (OIC A-001827, April 22, 1994); Foster and Royal Insurance Company of Canada (OIC A-011628, April 19, 1995).
- Zeppieri, Zere, supra; see also Steele and Zurich Insurance Company (OIC A-001024, December 3, 1992); Offeh and Allstate Insurance Company (OIC A-006494, October 25, 1994), under appeal; Fakhri and Coachman Insurance Company (OIC A-000330, March 17, 1994).
- Zeppieri, Zere, supra
- Zeppieri, Zere, Fakhri, supra; see also Steele, Off eh, supra
- Zeppieri, Zere, Foster, supra; sections 16 and 26 of the Schedule; see also Fakhri, supra
- Exhibit 1, Tab 1
- Exhibit 1, Tab 2
- Exhibit 1, Tab 3
- Exhibit 1, Tab 4
- Exhibit 1, Tab 5
- Exhibit 1, Tab 6
- Exhibit 1, Tab 6
- Exhibit 1, Tabs 3 and 4