Mehri Ebrahimi-Nazari v. Allstate Insurance Company of Canada, 2010 ONFSCDRS 139

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 139

FSCO A10-000056

BETWEEN:

MEHRI EBRAHIMI-NAZARI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: William J. Renahan

Heard: By telephone conference call on November 17, 2010.

Appearances: Shawn Jafari for Mrs. Ebrahimi-Nazari

Sean Brown for Allstate Insurance Company of Canada

Facts and Issue:

This issue proceeded by teleconference. The Applicant, Mehri Ebrahimi-Nazari, did not file any material. The Insurer, Allstate Insurance Company of Canada, filed an affidavit, submissions and a book of caselaw.

Mr. Jafari agreed that the facts as alleged by Allstate were correct.

Mrs. Ebrahimi-Nazari was injured in a motor vehicle accident on September 21, 2003. She applied for and received statutory accident benefits from Allstate, payable under the Schedule.¹ Allstate terminated weekly housekeeping and home maintenance benefits on December 5, 2003.

After mediation, the Mediator reported on November 2, 2005 that the parties partially resolved their dispute by Allstate paying Mrs. Ebrahimi-Nazari housekeeping expenses to February 6, 2004.

Mrs. Ebrahimi-Nazari continued to claim housekeeping expenses from Allstate. In Explanation of Benefits dated March 8, 2004, April 7, 2004 and April 19, 2004, Allstate advised Mrs. Ebrahimi-Nazari that it would not pay housekeeping expenses beyond February 4, 2004. On January 8, 2010, Mrs. Ebrahimi-Nazari applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended, seeking weekly housekeeping expenses from February 7, 2004 to the present. Allstate claimed that Mrs. Ebrahimi-Nazari was precluded from proceeding to arbitration because her Application for Arbitration was filed beyond the two-year limitation period.

The preliminary issue is:

Is Mrs. Ebrahimi-Nazari 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. Ebrahimi-Nazari is precluded from proceeding to arbitration because her Application for Arbitration was filed beyond the two-year limitation period. The Application for Arbitration is dismissed.
Mrs. Ebrahimi-Nazari shall pay Allstate its expenses of the arbitration proceeding assessed at $1,105.19.

ANALYSIS:

At the time of the accident subsection 281 (5) of the Insurance Act provided as follows:

A step authorized by subsection 1 must be taken 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 51 of the Schedule extends the limitation period by 90 days in certain circumstances as follows:

(1) A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

(2) Despite subsection (1), a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280 (8) of the Act or within 30 days after the person performing the evaluation provides a report to the parties under section 280.1 of the Act, whichever is later.

Court and arbitration decisions, in particular Smith v. Co-operators General Insurance Company, 2002 SCC 30, [2002] 2 S.C.R. 129, have set out the information an insurance company must give its insured when it terminates benefits.

Mr. Jafari conceded that the Application for Arbitration was out of time. He also conceded, and I find, that the information contained in the Explanation of Benefits which terminated housekeeping benefits complied with the case law. He said that he commenced this Application on the instructions of Mrs. Ebrahimi-Nazari.

I find that the Application for Arbitration is statute-barred because it was commenced more than two years after Allstate refused to pay further benefits. Accordingly, the Application for Arbitration is dismissed.

EXPENSES:

Mr. Jafari did not tell Mr. Brown that he was conceding all issues in dispute until the teleconference.

Mr. Jafari had no dispute with Mr. Brown’s disbursements. He asked that I reduce Mr. Brown’s fees of $967.49 (including HST) to $500 because Mrs. Ebrahimi-Nazari was unemployed.

The criteria for awarding and assessing expenses are set out in the Expense Regulation, R.R.O. 1990, Regulation 664. Financial hardship is not a consideration.

Having regard to the applicable criteria, I find that Allstate is entitled to expenses of the arbitration proceeding and that $1,105.19 in fees and disbursements is reasonable.

December 8, 2010

William J. Renahan

Arbitrator

Date