Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 129 FSCO A04-000307

BETWEEN:

LAWRENCE LEWCHUK Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: John Wilson

Heard: July 15, 2005, in St. Catharines, Ontario.

Appearances: Lucianna Tummillo for Dr. Lewchuk Stephen B. Macaulay for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Dr. Lawrence Lewchuk, was injured in a motor vehicle accident on June 30, 2002. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule¹. The parties were unable to resolve their differences through mediation, and Dr. Lewchuk 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 issues are:

1. Is Dr. Lewchuk precluded from proceeding to arbitration because he failed to submit an application within 30 days of receiving the application, pursuant to section 32(3) of the Schedule?

2. Did Dr. Lewchuk fail to provide the necessary information to his insurer pursuant to section 33 of the Schedule?

Result:

1. Wawanesa is barred from relying on any failure by Dr. Lewchuk to submit an application within 30 days of receiving the application, pursuant to section 32(3) of the Schedule. Dr. Lewchuk may proceed to arbitration on the substantive issues raised by his Application for Arbitration, if so advised.

2. The Insurer formally withdrew the section 33 issue.

EVIDENCE AND ANALYSIS:

Dr. Lawrence Lewchuk is a general practitioner with a medical practice in the St. Catharines area. On June 30, 2002, on the eve of the Canada Day long weekend, he was involved in an accident on the way to a Lake Erie cottage.

Dr. Lewchuk attended at the office of his family physician immediately following the Canada Day weekend. He also claimed to have contacted his insurance broker to report the accident.

What happened after that point is a subject of some controversy. It does seem clear, however, that Dr. Lewchuk did not file any written document resembling an application for benefits in the 30 days following the motor vehicle accident. In fact, no application seems to have been submitted for quite some time, although there is no allegation that Dr. Lewchuk was outside of the ultimate two-year window for an application.

As a result of this accident he claims to have suffered injuries which have had an impact on his ability to practice his profession. According to Dr. Lewchuk's Application for Arbitration, however, weekly income replacement benefits are not the only substantive claims in this arbitration. Dr. Lewchuk also claims unspecified housekeeping, rehabilitation and medical benefits.

Wawanesa's Response as filed indicates that it disputed Dr. Lewchuk's claim for benefits on substantive grounds. It also raised what it characterized as preliminary issues, which, according to Wawanesa, barred him from proceeding to arbitration of his claims. At the original pre-hearing on July 27, 2004, Wawanesa formally identified the two questions listed at the beginning of this decision as preliminary issues and asked that they be heard as such.

At the beginning of this hearing, which took place on July 15, 2005, Wawanesa indicated that it was not proceeding on the second issue and would bring evidence on the remaining issue, that of whether Mr. Lewchuk was barred from proceeding by the fact of filing his application more than 30 days after the motor vehicle accident without a reasonable excuse, pursuant to 31 (3) of the Schedule.

Reasonable Explanation

While most time limits in insurance law are inflexible and rigid, that propounded by section 31(3) of the Schedule contains a relieving provision. Quite simply, if one provides a "reasonable explanation," one is excused from the consequences of the failure to file an application within 30 days of the occurrence of a motor vehicle accident.

There is no definition of "reasonable explanation" in the Insurance Act or its subsidiary legislation. The concept, however, is not a new one. Historically, "Reasonable explanation" and "reasonable excuse" have been used interchangeably in the context of relief from the consequences of delay. These include such instances as failure to file claims against a municipality in a timely manner, failure to pursue a workers compensation claim, and setting aside a default judgement due to the failure to file the necessary responding material. In Quebec, as well, the phrase is also used to permit the filing of a late claim under an insurance policy. In all such cases, failure to put forward a reasonable excuse will result in forfeiture of the benefits claimed, or, in the case of default judgements, exposure to the enforcement of the judgement obtained.

What then is a "reasonable explanation"? It is clear from the jurisprudence that an "excuse" or "explanation" in the legal context means more than just the popular definition of "an attempt to lessen the blame attaching to a person."² Black's³ lists under "excuse":

1. A reason that justifies an act or omission or that relieves a person of a duty.

2. Criminal law. A defense that arises because the defendant is not blameworthy for having acted in a way that would otherwise be criminal.

The addition of the descriptor "reasonable" suggests that the excuse must be "in accordance with reason; not absurd."⁴

Early decisions involving exceptions to strict limitations on suing municipal corporations interpreted the exception quite narrowly. In fact, some suggested that a party would have to be virtually comatose to avail himself of the "reasonable excuse."

Informing many of those decisions is a consideration of the public policy that suits against municipalities should be discouraged, since they become a burden to all taxpayers, regardless of fault. In O'Connor v. Hamilton City⁵, Meredith J. commented that "we are in a strong current of legislative action for the relief of municipalities in such cases and are not justified in any attempt to stem it by failing to give full effect to any of these restrictions as remedial enactments."

The courts tell us that the context of accident benefits and its limitations is somewhat different. The Supreme Court in Smith v. Co-operators,⁶ of course reminds us the Schedule should be looked at as part of a consumer protection scheme. Gonthier J. stated:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.

The purpose of the accident benefit legislation has also been characterized by Cameron J.:

This is remedial legislation. The "no fault" legislation deprived the plaintiff of his common law right to sue for damages for loss of income due to another's negligence. The Regulation provides for prompt payment of an income benefit to replace income lost due to the accident without need to prove fault and in lieu of any amount the plaintiff might have been awarded and recovered at common law.⁷

It is clear that the legislative purpose that must inform "reasonable excuse" in the accident benefit context is much different than the same words used in the context of protecting municipalities from lawsuits. Whereas the legislative intent in the municipal legislation was to shut down litigation wherever possible, "reasonable excuse" in an accident benefit context is a means of mitigating the harshness of the time limits on application for benefits, and facilitate access to benefits for bona fide claimants.

Dr. Lewchuk's "reasonable explanations"

In this instance, Dr. Lewchuk has provided various explanations for the late filing of the claim. Firstly, he claimed that he had not received the benefit package required to be sent out by insurers, since it was likely sent to the "wrong address" - his home address - not his office address at which he habitually received his mail. Secondly, he was unable to obtain the signature of his family physician, who was away in Greece on family matters for an unidentified period following the motor vehicle accident. Dr. Lewchuk also made reference to being very busy in his own medical practice, with the resulting difficulties in attending to paper work.

It is important to note, however, that Dr. Lewchuk has consistently raised the absence of his physician as his primary "reasonable excuse", and that appears to be the excuse that, at the time when it was first raised, Wawanesa may have not found acceptable.

I will deal first of all with the "wrong address" excuse. Dr. Lewchuk testified that he used his office address for correspondence. Although he implied that he never received mail at the house address, which he indicated was a group mail box, this position was modified in cross-examination to rarely, or that he hardly ever checked the home post box, since he rarely expected anything important. It was also clear that at some point he or his lawyer likely received a claims package from Wawanesa, since forms which appeared to originate from Wawanesa as part of that package were present in his counsel's file at the hearing.

I accept Dr. Lewchuk's testimony that he wasn't in the habit of picking up mail at his home address and generally used his office address as his contact point. What I do not accept is that there is any evidence that Wawanesa was in any way directly informed that notices should have been sent to Dr. Lewchuk's office address.⁸

Dr. Lewchuk was unable to recall what address his auto insurance bills went to. He had no evidence that he had advised either his agent or Wawanesa to send the documentation to his office address.

Indeed, the address for service given in Dr. Lewchuk's Application for Arbitration appears to be his home address and the same to which Wawanesa sent the accident benefit package. In all likelihood Wawanesa sent the information to the address supplied in the policy, and it was entitled to rely to a degree on any representation as to address.

Section 68(5) of the Schedule provides that "in the absence of evidence to the contrary, a person is deemed to receive anything delivered by letter mail, certified mail or registered mail under clause 2(d) or delivered to his or place of residence under subsection 4 on the fifth business day after the day the document is mailed..."

In deciding not to regularly check the mailbox at his residence took a calculated risk that Wawanesa would send something important to his residence address.

In the absence of evidence to the contrary, Dr. Lewchuk could be deemed to have received the application package five days after it was mailed by Wawanesa. Consequently, the calculation of the 30 day limit for submitting an application pursuant to section 32(3) would have begun to run at that time. Such an inference might be bolstered by the apparent physical presence of documents from the "package" in the possession of Dr. Lewchuk's solicitor at the time of the hearing.

The July 10, 2002 letter which enclosed the "package" appears likely to have been sent by ordinary mail. The copy⁹ in Wawanesa's document brief contains no information as to its means of delivery. Ms. Gunn's testimony is that it was "sent."

Presumably it was to be sent by regular mail, although there is no documentation to support that inference. Dr. Lewchuk testified that he did not receive it.

As for the September 17, 2002 letter, at the top of the copy produced by the Insurer is the inscription "Registered Letter." We are all familiar with the procedures involved in the receipt of a registered letter. The addressee or the person picking up a letter on his or her behalf must sign a register acknowledging receipt of the item. If the recipient is not home, the postal service leaves a delivery notice. If, after a specified number of days the item is not picked up, and no one has signed for it, the item is returned to the sender.

The actual date of Dr. Lewchuk's receipt, or deemed receipt of the Insurer's "package", is of critical importance since it starts the clock running on the time limit for delivery of his completed application for accident benefits. If the "package" was not delivered by Wawanesa, then the clock does not begin to run on Dr. Lewchuck's application until it is actually delivered.

In these circumstances, given the importance of receipt, and the ongoing controversy about whether Dr. Lewchuk received the Insurer's package, and, if so, when, the absence of the registration receipt, or any signature for receipt is troubling.

Assuming that the letter was registered, as indicated on its face and given the absence of the registration receipt, signature, or any positive evidence of receipt, I can only conclude that the letter was likely returned unopened to the Insurer.

It is important to note that section 68(2)(c) and section 68(4) also offer the alternative of personal delivery, and indeed, provide for leaving documents with "anyone who appears to be an adult member of the same household." Clearly, the legislature has turned its mind to the problem of people who resist every communication effort. If the "registered" letter sent September 17, 2002 was returned to Wawanesa uncollected, this clearly would have been an appropriate action. There is no evidence that personal service was attempted on this matter. Of course, if Wawanesa was not intending to rely on the 30 day limitation, there would be no need for it to "paper" the transaction and document the steps taken to deliver the "package."

While Dr. Lewchuk may have been a somewhat difficult client to deal¹⁰ with, it is incumbent upon an insurer who intends to rely upon the time limit set out in 32(3) of the Schedule to thoroughly document the delivery of the application forms which sets the process in motion.

At the hearing, counsel for the Insurer noted that at least some of the papers in question appeared to be in Mr. Lewchuk's counsel's own file. It was his submission that given Dr. Lewchuk's ultimate possession of the papers, and the testimony of the Insurer's representative about the repeated efforts made to communicate with Dr. Lewchuk, I should draw an inference that Dr. Lewchuk received the "package", and that the date of receipt should be considered the date it would have been initially delivered to Dr. Lewchuk's home address.

While I accept that Dr. Lewchuk likely came into possession of the Insurer's "package" some time between July 10, 2002, and the date of his preparation for this hearing, I do not share the Insurer's confidence that I may draw any firm inference as to the exact date when he either received the documents, or might be deemed to have received them.

Dr. Lewchuk testified that he did not actually receive the first package of documents, apparently sent by regular mail on July 10, 2002. Other than the broad assertion that the documents were "sent", I have no conclusive evidence from the Insurer that these documents were actually deposited in the mail, nor any evidence that they ultimately reached their intended addressee.¹¹ Likewise, I have no evidence as to the existence of any policy or practice in delivering important documents that would allow me to draw an inference that they made their way from Ms. Gunn's desk to the actual recipient.

Faced with "evidence to the contrary", the deemed receipt provisions of section 68(5) of the Schedule are not applicable, and, based on the evidence before me, I am unable to determine at what date the documents in the "package" actually became available to Dr. Lewchuck.

Dr. Lewchuk offered two other excuses for the late filing of his application. The first is that he was just too busy to respond to the need for an application. However true that may be, it cannot constitute a reasonable excuse as foreseen by the Schedule.

Postponing something is as much a conscious decision as performing a given task. A decision to postpone means that in the mental triage process of evaluating priorities, that particular matter was of lesser urgency, and that its priority was less than that of the tasks actually performed. There is no evidence that had priorities been different, Dr. Lewchuk could not have filled out the necessary documents. By making the decision he did, and filing the application late, Dr. Lewchuk assumed some risk that the application would not be accepted.

The second excuse, that the application was not delivered due to the lengthy absence of Dr. Kouros, Dr. Lewchuk’s family physician, in Greece, is by far the most credible explanation put forward by Dr. Lewchuk. A critical portion of the package forwarded included space for the comments, observations and signature of the applicant’s health professional. Dr. Lewchuk testified that he had filled out many such forms for patients before, and it would not be unreasonable to credit his belief that it was pointless to submit an application without the involvement of the relevant health professional.

As noted, especially if Dr. Lewchuk had not read some of the correspondence that the Insurer tried to send him, his doctor’s extended absence might have seemed a bar to filing the application on a timely basis. However, an excuse drawn from thin air, however plausible, cannot in itself be a reasonable excuse without some factual underpinnings. I am surprised that, given the length of time available to Dr. Lewchuk to prepare for this hearing, he provided no evidence, either written or oral beyond his own assertion that his physician left for an absence of many months just after the accident, with no arrangements for coverage of his patients.

Dr. Lewchuk bears the evidentiary burden in proving that any excuse put forward was reasonable. Part of the proof of reasonableness is the ability to substantiate the set of facts relied upon. In the absence of evidence to the contrary, I cannot accept that his own physician would have abandoned him and his fellow patients for an extended period of time, without the provision of alternative coverage. Presumably such coverage would have access to Dr. Kouros records to verify the circumstances of the claim. Consequently, in the absence of supporting evidence at this hearing, such as the testimony of Dr. Kouros, or documentary evidence of his absence, Dr. Kouros extended absence does not constitute a "reasonable excuse."

That is not to say that Dr. Lewchuk is consequentially barred from proceeding with his claim. While an insurer is entitled to have an insured’s claim made within the times specified by the legislation, from time to time situations arise when it would be inequitable to allow an insurer to rely on such a time limit.

Lord Cairns in Hughes v. Metropolitan Rail. Co.¹² stated:

It is the first principle upon which all courts of equity proceed, that if parties who have entered into definite and distinct terms involving certain legal issues - certain penalties or legal forfeiture - afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.

The same principles have been re-enunciated by the Ontario Court of Appeal in Owen Sound Public Library Board v. Mial Developments Ltd. et al.¹³

Granger J. also applied this doctrine of promissory estoppel in Jenkins and Jenkins v. Bowes Publishing Co.¹⁴, finding, after a review of the jurisprudence that Bowes was estopped from relying on a limitation under the Highway Traffic Act because of its conduct that led Mr. Jenkins into believing that they would not rely upon the limitation.

The criteria for the application of issue estoppel are quite simple. R.E. Holland J. in Collavino v. Employer's Mutual Liability Insurance Co. of Wisconsin¹⁵ stated:

Promissory estoppel can prevent the insurer from relying on a limitation period where there has been either (1) an admission of liability or (2) a promise not to rely on the limitation period relied upon by the insured.

R.E. Holland J. clarified that the representations may be either expressed or implied and that:

Before the principle applies there must be some evidence that one of the parties entered into a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced.

As is apparent from the context of the documents submitted by the parties, at some point after September 17, 2002, communication began between Dr. Lewchuk and Wawanesa. The registered letter from Wawanesa dated February 19, 2003 refers to "your accident benefits claim and your fax of January 31, 2003." The letter refers to the Insurer's request for an "application for benefits" and for a signed statement in accordance with section 33 of the Schedule.

The only documented contact between the parties within the same time frame is a letter from Dr. Lewchuk to Ms. Gunn of Wawanesa in which Dr. Lewchuk confirms his claim and notes that the delay was due "to the fact that my family physician was initially seen at the hospital for my injuries a week after the accident, and then had to leave the country for personal reason (Greece) delayed my documents which will be forthcoming with the medical issues involving the case."

An explanation of benefits payable also dated February 19, 2003 states simply "No application for benefits received to determine entitlement."

Dr. Lewchuk in an April 10, 2003 letter reiterates that the delay was due to Dr. Kouros' absence and consequent inability to fill out the papers until April 9, 2003.

A subsequent letter from Wawanesa dated April 29, 2003 acknowledges the receipt of a "completed Application for Accident Benefits" and states clearly: "Please be advised that we are unable to process your claim until we receive the following information:

We are requesting a face to face interview with you with respect to your entitlement to all benefits under the Statutory Accident benefits Schedule. This request is in accordance with Section 33(1) (see copy attached.)

Wawanesa then notes that "(N)o benefits will be processed until you have complied with our request."

The Explanation of Benefits Payable form, also dated April 29, states:

Your application for benefits was received after 30 days, we are provding (sic) you with notification that we require a signed statement. this is in accordance with section 33(1) see copy attached On June 16, 2003, Dr. Lewchuk executed a "Declaration of Statement" set out in a form prepared by the Insurer, which was apparently sent to Wawanesa on July 18, 2003 by Ms. Donohue, Dr. Lewchuk's counsel.

A further July 30 Explanation of Benefits refers again to the section 33 requests but makes no reference to any problems with section 32(3).

However, a letter dated July 17, 2003 addressed to Ms. Donohue, Ms. Gunn stated that "we are maintaining our decision that Dr. Lewchuk is not entitled to benefits under the SABS because he did not provide us with the signed statement, police report nor reasonable explanation for providing late notice of his intention to apply for a benefit under the SABS."

From the materials submitted, Dr. Lewchuk would appear to have filed an Application for Benefits by April 29, 2003. He had also supplied reasons, which for him, constituted a reasonable excuse for not filing earlier.

In all the documents submitted to me in this matter, the letter of July 17, 2003 is the first direct suggestion that Dr. Lewchuk's excuse, first advanced some six months earlier is unacceptable to Wawanesa. It is not a position, however, that is reiterated in any of the explanation of benefits forms sent out by the Insurer over this period.

Section 32(3.1) of the Schedule provides that an insurer shall "notify the person within 14 days after receiving the incomplete application that the application is incomplete and shall indicate the information that is missing.

The formal explanation indicated only that a signed statement was required in accordance with Section 33(1), presumably because "your application for benefits was received after 30 days." It says nothing about a lack of a reasonable excuse. Given the requirements of section 32(3.1), Dr. Lewchuk could be forgiven if he concluded that only the lack of a signed statement stood between him and the processing of his claim.

The provisions of section 32(3.1) are there as part of the consumer protection mandate of the Insurance Act. If an insurer is to reject an application as missing critical information, then the deficiency must be addressed promptly so that an insured can either rectify the problem directly or abandon his or her claim, avoiding further unnecessary costs. Clearly, the lack of a reasonable excuse was not addressed promptly within the time frames envisaged by the Schedule. It was never clearly addressed at all in any of the explanations of benefits in evidence before me.

While pursuant to section 131(1) of the Insurance Act, there can be no waiver of a term or condition of a policy without the written approval of an authorized representative of an insurer, it has been long accepted that the actions and representations made by an insurer can have a direct impact on its right to assert a particular defence.

In Hansa v. York Fire and Casualty Co.,¹⁶ Weiler J. noted that the happening of an event, which implicitly acknowledges an existing right, even in the face of other information suggesting that a lapse of those rights had occurred "is a conclusive election not to take advantage of the clause."

Another similar analysis of the Insurer's conduct can be conducted in the framework of the doctrine of laches. The legal doctrine of laches or estoppel by laches was developed to address such conduct. Laches are defined by the Canadian Oxford Dictionary as:

unjustifiable, inexcusable, or unreasonable delay in performing a legal duty, asserting a right, claiming a privilege etc.

The courts have recognized that laches comprise more than mere delay.

Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.¹⁷

The same circumstances of delay and prejudice continue to be recognized and applied by Canadian courts.¹⁸

I accept that Dr. Lewchuk would be seriously prejudiced if the Insurer was permitted to raise again the issue of the reasonable explanation. Quite simply, he may be barred from proceeding with his substantive claim for benefits. He has spent money retaining a solicitor to deal with aspects of this claim, including provision of the declaration requested by the Insurer, that he will likely not be able to recoup. While no doubt the Insurer may suffer some prejudice in having to deal with a substantive claim some years after the accident, it was provided with timely notice of the claim, and was able to obtain the information it deemed necessary for the examination of the claim at an earlier stage in this process.

The Supreme Court in M (K) v. M (H) (supra), reminds us that "Ultimately, laches must be resolved as a matter of justice between the parties, as with the case with any equitable doctrine."

Certainly, the question of whether the prejudice claimed can be fairly addressed bears on any weighing of "justice between the parties." In this matter, it is clear that Dr. Lewchuk risks suffering the greater prejudice. Any accruing to Wawanesa should be readily compensable by an award of expenses, should Wawanesa ultimately be successful in denying Dr. Lewchuk's claim.

As noted earlier, the purpose of the current accident benefit scheme is to provide timely assistance to victims of motor vehicle accidents. It does not further the purposes of the scheme for insurers to pursue an overly technical approach to entitlement.¹⁹

Rather than constituting a barrier to access, the provisions in section 32(3) must be seen as an incentive for the applicant to provide necessary information on the accident and claims to an insurer on a timely basis.

From a practical viewpoint, although Dr. Lewchuk was tardy in assembling his claim, once the application was submitted, he had a right to a timely and reasonably complete response about any technical deficiencies in his claim, so that they could be addressed promptly. Notwithstanding any efforts made to reach Dr. Lewchuk the issue in question, that of "reasonable explanation", was not squarely addressed by the Insurer on a timely basis.

I accept that in the context of this case, the pre-conditions for the application of both promissory estoppel discussed by R.E. Holland J. in Collavino²⁰ and estoppel by laches can be made out. Consequently, I find that Wawanesa is barred from relying on any failure by Dr. Lewchuk to submit an application within 30 days of receiving the application, pursuant to section 32(3) of the Schedule.

There being no further preliminary issues, Dr. Lewchuk may proceed to arbitration on the substantive issues raised by his Application for Arbitration, should he be so advised.

EXPENSES:

I make no order as to expenses in this motion and leave that issue to the hearing arbitrator to determine as part of the arbitration of this matter.

September 16, 2005

John Wilson Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 129 FSCO A04-000307

BETWEEN:

LAWRENCE LEWCHUK Applicant

and

WAWANESA MUTUAL 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:

1. Wawanesa is barred from relying on any failure by Dr. Lewchuk to submit an application within 30 days of receiving the application, pursuant to section 32(3) of the Schedule. Dr. Lewchuk may proceed to arbitration on the substantive issues raised by his Application for Arbitration, if so advised.

September 16, 2005

John Wilson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The Canadian Oxford Dictionary Toronto 1998
3. 3Black's Law Dictionary, 8th edition, St. Paul MN 2004
4. 4Canadian Oxford Dictionary (supra)
5. 58 O.L.R. 391 Divisional Court
6. 6Smith v. Co-operators General Insurance Co. [2002] S.C.R. 129
7. 7Youden v. Economical Insurance Co. 1996 CanLII 8010 (ON CTGD), [1996] O.J. No. 2044 .
8. 8I note, however, that a note from Dr. Lewchuk to Wawanesa dated August 20, 2002 is written on paper indicating his office address. In addition the April 29, 2003 letter from Wawanesa requesting a face to face interview is addressed to Dr. Lewchuk at his office address.
9. 9The copy in Dr. Lewchuk's document brief has the scrawled notation "Ph (illegible) Fax", but the copy does not have the usual "header" one expects to see on a faxed document.
10. 10Dr. Lewchuk apparently did not respond directly to the notices sent to his home address. Ms. Gunn testified that she referred the file to the McLaren Toplis company for follow-up. The correspondence included between Ms. Gunn and that firm documents some difficulty in reaching Dr. Lewchuk in order to obtain a signed statement. It is perhaps significant that the signed statement was ultimately obtained through the offices of Ms. Donohue, Dr. Lewchuk's lawyer, whose retainer had first been signalled to Wawanesa in Dr. Lewchuk's letter of January 28, 2002.
11. 11Ms. Gita Gunn, Wawanesa's adjuster, testified merely that she "sent" the letters in question, without referring to the manner in which they were sent or elaborating on her reasons for believing they may have reached Dr. Lewchuk.
12. 12Hughes v. Metropolitan Rail. Co., 1 App. Cas. 448
13. 13Owen Sound Public Library Board v. Mial Developments Ltd. et al., 1979 CanLII 1624 (ON CA), 26 O.R (2d) 459
14. 14Jenkins and Jenkins v. Bowes Publishing Co., 1991 CanLII 7183 (ON CTGD), 3 O.R. (3d) 154
15. 15Collavino v. Employers Mutual Liability Insurance Co. of Wisconsin, 1984 CanLII 5963 (ON HCJ), [1984] O.J. 1011
16. 16Hansa v. York Fire and Casualty Co. (1982) 1982 CanLII 2005 (ON HCJ), 38 O.R. (2d) 281
17. 17Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221
18. 18See M (K) v. M. (H) 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6
19. 19By including the saving provision of "reasonable explanation" in section 31(a) the legislature has signalled that the time limits in 32(3) should be approached flexibly, unlike the time limits in section 51.
20. 20Supra