Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 109
FSCO A12-000712
BETWEEN:
CHUNG PARK
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Susan Sapin
Heard: April 19, 2013, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Mr. Park represented himself, through a Korean language interpreter
Nicole Simes for Dominion of Canada General Insurance Company
Issues:
The Applicant, Chung Park, was injured in a motor vehicle accident on August 7, 2008. He applied for and received statutory caregiver, attendant care, housekeeping, and medical no fault accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule,1 which Dominion later terminated. Mr. Park applied for mediation at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, which failed. He then applied for arbitration at the Commission. Dominion maintains that Mr. Park’s application for arbitration is out of time and should be dismissed.
The preliminary issue is:
Is Mr. Park precluded from proceeding to arbitration because his application for arbitration was filed beyond the two-year limitation period set out in subsection 281.1(1) of the Act and subsection 56(1) of the Schedule?
Is either party entitled to its expenses of this preliminary issue hearing?
Result:
Mr. Park is precluded from applying for arbitration for all but two of the benefits in dispute, because his lawyer failed to file his application for arbitration within the two-year time limit set out in the Act and the Schedule.
Mr. Park may proceed with his application for arbitration of his claim for $1,812.53 for the cost of a chronic pain assessment by the Toronto Poly Clinic per an OCF-22 dated June 29, 2010 and his claim for $1,500 for an MRI by NARSA per an OCF-22 dated April 28, 2010.
Each party shall bear its own expenses of this preliminary issue hearing.
REASONS:
In his Application for Arbitration, Mr. Park seeks payment of $31,200 in caregiver benefits, $49,470.72 in attendant care benefits and $10, 400 in housekeeping benefits up to 104 weeks after the accident; as well as $5,897.61 in medical benefits, $7,571.78 in costs of examinations, SABS interest of 2% per month and costs.
Sections 281.1(1) of the Act and 56(1)2 of the Schedule provide that a mediation or arbitration proceeding “shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.” Sections 281.1(2)(b) of the Act and 51(2) of the Schedule further provide that an insured person has an additional 90 days after receiving the Report of Mediator to commence an arbitration or court proceeding.
The relevant dates are not in dispute in this case. These dates, and Mr. Park’s claims, are contained in a chart3 prepared by Dominion, found in the Appendix to this decision.
Except for two of Mr. Park’s claims (the last two items on the chart), although Mr. Park commenced mediation within the two-year time limit, his application for arbitration was filed more than 90 days after he received the Report of Mediator, and more than two years after the date of denial of the benefits.4
It is well-established law that for the insurer to be able to rely on the two-year time limit, two requirements must be met: the refusal must be clear, unequivocal and include reasons, and the insured person must be informed of his or her right to dispute the insurer’s refusal to pay benefits. As I have pointed out previously,failure to meet either test, i.e. the refusal is not clear or unequivocal, or the insurer failed to explain the insured’s right to dispute as set out in Smith and Co-Operators General Insurance Company5, is sufficient grounds to invalidate the refusal. The onus is on the insurer to demonstrate that its refusal meets these requirements. While not being held to a standard of perfection, the insurer is nevertheless required to tell an unsophisticated person in a simple and easy to understand written form that the insurer will not pay certain benefits and why it has decided not to pay.6
In this case, all of Dominion’s refusals, in the form of an Explanation of Benefits Payable by Insurance Company (OCF-9), meet the two-fold test in Smith, above, as they are clear and unequivocal and adequately explain Mr. Park’s right to dispute the refusals, the process for doing so, and the applicable time limits.
Mr. Park’s only explanation for the delay was that his lawyer is to blame for the late filing of his application for arbitration of his claims against Dominion. This is beyond the jurisdiction of the Financial Services Commission and is a matter Mr. Park may wish to take up with the Law Society of Upper Canada.
Having considered the evidence as a whole and the representations of the parties, I find that Mr. Park cannot proceed to arbitration on his claims, except for the last two listed on the chart, because he failed to commence his arbitration proceeding within 90 days after receiving the Report of Mediator.
Mr. Park may proceed with his application for arbitration of his claim for $1,812.53 for the cost of a chronic pain assessment by the Toronto Poly Clinic per an OCF-22 dated June 29, 2010 and his claim for $1,500 for an MRI by NARSA per an OCF-22 dated April 28, 2010.
RIGHT TO APPEAL:
Rules 50, 51 and 52 of the Dispute Resolution Practice Code, available on the FSCO website,7 explain that a party may appeal an order of an arbitrator to the Director of Arbitration by filing a Notice of Appeal on Form I within 30 days of the date of the arbitration order and paying the filing fee of $250. All of the necessary forms can be printed from FSCO’s website or obtained from the Commission offices.
EXPENSES:
Dominion claims its expenses of this preliminary issue hearing and submitted a detailed bill of costs totalling $1,655.99, together with submissions. Although this may have been a relatively straightforward proceeding for Dominion, the same cannot be said for Mr. Park, who represented himself as best he could through an interpreter. Although the facts went against Mr. Park in this case, he was successful in establishing that he was entitled to proceed to arbitration on two of his claims, and really had no choice but to respond to Dominion’s motion in order to do so. Under the circumstances, and at this early stage of the arbitration proceeding, I find each party should bear its own expenses incurred in this preliminary issue hearing.
August 15, 2013
Susan Sapin
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 109
FSCO A12-000712
BETWEEN:
CHUNG PARK
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. Park is precluded from proceeding to arbitration of the claims in his application for arbitration dated February 13, 2012, except for the two claims listed in paragraph 2 of this Order.
Mr. Park may proceed with his application for arbitration of his claim for $1,812.53 for the cost of a chronic pain assessment by the Toronto Poly Clinic per an OCF-22 dated June 29, 2010 and his claim for $1,500 for an MRI by NARSA per an OCF-22 dated April 28, 2010.
August 15, 2013
Susan Sapin
Arbitrator
Date
FSCO File No. A12-000712-ASH
B E T W E E N:
FINANCIAL SERVICES COMMISSION OF ONTARIO
CHUNG PARK
Applicant
and
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DISPUTED BENEFIT
DATE OF DENIAL
2 YEARS FROM DENIAL
DATE OF APPLICATION FOR MEDIATION
90 DAYS FROM REPORT OF MEDIATOR
DATE OF APPLICATION FOR ARBITRATION
Caregiver Benefits
October 28, 2008
October 28, 2010
August 20, 2010
January 15, 2012
February 13, 2012
Attendant Care Benefits
Housekeeping Benefits
Medical Benefit:OCF-18 dated November 22, 2008 for injections in the amount of $1,320.00 to be provided by Dr. Jason Su;
January 20, 2009
January 20, 2011
August 20, 2010
January 15, 2012
February 13, 2012
Medical Benefit:OCF-18 dated January 12, 2009 for acupuncture and stone therapy in the amount of $1,680.00 to be provided by Trinity Rehab;
April 22, 2009
April 22, 2011
August 20, 2010
January 15, 2012
February 13, 2012
Medical Benefit: OCF-18 dated April 14, 2009 for massage therapy in the amount of $703.11 to be provided by Trinity Rehab;
May 1, 2009
May 1, 2011
August 20, 2010
January 15, 2012
February 13, 2012
Medical Benefit: OCF-18 dated June 23, 2009 for acupuncture and muscle stimulation in the amount of $2,194.50 to be provided by NARSA;
N/A – no treatment plan of June 23, 2009
N/A
August 20, 2010
January 15, 2012
February 13, 2012
Cost of Examination: OCF-22 dated August 17, 2009 in the amount of $2,290.50 for an Orthopaedic assessment to be provided by NARSA
September 3, 2009
September 3, 2011
August 20, 2010
January 15, 2012
February 13, 2012
Cost of Examination: OCF-22 dated January 18, 2010 in the amount of $1,968.75 for a Physiatry assessment to be provided by NARSA
February 2, 2010
February 2, 2012
August 20, 2010
January 15, 2012
February 13, 2012
Cost of Examination: OCF-22 dated April 28, 2010 in the amount of $1,500.00 for an MRI to be provided by NARSA;
May 4, 2010
May 4, 2012
August 20, 2010
January 15, 2012
February 13, 2012
Cost of Examination: OCF-22 dated June 29, 2010 in the amount of $1,812.53 for a chronic pain assessment to be provided by Toronto Poly Clinic;
July 5, 2010
July 5, 2012
August 20, 2010
January 15, 2012
February 13, 2012
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Formerly s.51
- The Report of Mediator is dated October 17, 2011. The jurisprudence has established that the 90-day time limit runs from the date the insured person receives the report (see Zuger and Zurich North America Canada FSCO A01-000896, May 13, 2002) which, according to Rule 7.3 (b) of the Dispute Resolution Practice Code, is deemed to be five days after the date of the report. In this case the date of receipt is deemed to be Monday, October 23, 2011, as the fifth day fell on a Sunday (See Rule 8, “Calculation of Time.”)
- This is so even taking into account the calculation error in the chart for the last day of the 90-day period, which should be January 23, 2012, and not January 15, 2012, as stated on the chart.
- 2002 SCC 30, [2002] 2 S.C.R. 129
- See Mangos and Aviva Canada Inc. (FSCO A06-000847, October 17, 2007), at pg. 6
- http://www.fsco.gov.on.ca/en/drs/forms/Pages/default.aspx