Neutral Citation: 2001 ONFSCDRS 157
FSCO A01-000238
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
TRACY SCHUTT
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Joyce Miller
Heard:
Written submissions from both parties were received by September 20, 2001.
Appearances:
Michael Smitiuch for Mrs. Schutt
Eric K. Grossman for Allstate Insurance Company of Canada
Issues:
The Applicant, Tracy Schutt, was injured in a motor vehicle accident on September 10, 1997. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1 Allstate terminated weekly income replacement benefits on February 4, 1998. The parties were unable to resolve their disputes through mediation, and Mrs. Schutt applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Is Mrs. Schutt precluded from proceeding to arbitration because her application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and subsection 51(1) of the Schedule?
Result:
Mrs. Schutt is precluded from proceeding to arbitration because her application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and subsection 51(1) of the Schedule. This arbitration is dismissed.
If required, I may now be spoken to on the issue of the expenses of this arbitration proceeding.
BACKGROUND:
By a letter dated January 21, 1998 (with Notice of Stoppage of Weekly Benefits and OCF 17 forms) to Mrs. Schutt's previous lawyer, Mr. William Taberner, Allstate terminated Mrs. Schutt's income replacement benefit effective February 4, 1998.
On September 3, 1998, Allstate received a notice that Mrs. Schutt had changed lawyers and was now being represented by her present lawyer, Mr. Michael Smitiuch.
On June 16, 1999, Mr. Smitiuch filed for mediation on behalf of Mrs. Schutt. The application for mediation requests "payment of Income Replacement benefits from February 4, 1998, to present," as well as payment of medical and rehabilitation benefits and housekeeping and home maintenance expenses.
On July 16, 1999, Ms. Donna Kadirally, a mediation caseworker at FSCO, wrote to Mrs. Schutt and Mr. Smitiuch2 advising them of the following:
We are returning the attached Application for Mediation. The mediation branch of the Dispute Resolution Group requires a mediation application to be completed in all areas before a Mediator may be appointed to the file.
[underline/bold in the original]
The letter further stated that the application should be amended and resubmitted so that a Mediator may be appointed. The amendments requested were in regards to the issues of medical and rehabilitation benefits and housekeeping and home maintenance expenses. The letter also stated that FSCO:
...will hold the file in abeyance for a period of 20 days from the date of this letter. If we do not receive a response within that time, we will assume that you are no longer interested in pursuing mediation and will close our file accordingly.
[emphasis added]
The letter from FSCO also included a copy of Rules 12.3 and 12.4 of the Dispute Resolution Practice Code3 (the Practice Code) which state:
12.3 If it appears that an Application for Mediation is incomplete, or exceeds the jurisdiction of the Commission, the Commission will:
(a) deliver written notice of the jurisdictional concerns or deficiencies in the Application to the Applicant and their representative, and
(b) hold the Application in abeyance for 20 days from the delivery of the notice.
12.4 Where the Applicant fails to address the jurisdictional