Neutral Citation: 2015 ONFSCDRS 36 FSCO A11-002528

BETWEEN:

YOHANNES BERHE Applicant

and

NORTHBRIDGE GENERAL INSURANCE CORPORATION Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Jeffrey Rogers

Heard: November 12, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions completed on February 20, 2015.

Appearances: Mr. Berhe representing himself Ms. Linda M. Kiley, solicitor for Northbridge General Insurance Corporation (“Northbridge”)

Issues:

The Applicant, Yohannes Berhe, was injured in a motor vehicle accident on June 30, 2007. He applied for statutory accident benefits.¹ Disputes arose regarding Mr. Berhe’s entitlement to benefits that the Insurer refused to pay. Mr. Berhe applied for mediation at the Financial Services Commission and then filed this application for arbitration on August 2, 2011. Northbridge argues that Mr. Berhe is precluded from proceeding to arbitration because he did not comply with the relevant limitation periods.

The preliminary issue is:

Is Mr. Berhe precluded from proceeding to arbitration because his application for mediation and for arbitration were filed beyond the two-year limitation period set out in subsection 281.1(1) of the [Insurance Act]² and subsection 51(1) of the Schedule?³

Result:

Mr. Berhe is precluded from proceeding to arbitration.
This application for arbitration is dismissed.
The decision on the issue of expenses of the arbitration is reserved, to be determined as set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

In this arbitration, Mr. Berhe claims entitlement to Income Replacement Benefits (IRBs), Attendant Care Benefits (ACBs), Housekeeping and Home Maintenance Benefits (HK), and certain Medical Benefits.

Subsection 281.1(1) of the *Insurance Act* and subsection 51(1) of the Schedule provide that mediation or arbitration must be commenced within two years after an insurer’s refusal to pay. If mediation is commenced within two years, subsection 281.1(2) of the Act and subsection 51(2) of the Schedule extend the time for applying for arbitration to 90 days after the mediator reports to the parties.

The effect of failure to comply with either of these time limits is preclusion from proceeding to arbitration.

I accept Northbridge’s submission that Mr. Berhe failed to comply with both time limits and is therefore precluded from proceeding to arbitration. I decline to address Northbridge’s additional submissions on issues that were not identified as the subject of this hearing.

The application for mediation that led to this arbitration was filed on October 7, 2010.⁴ The mediator reported to the parties on April 5, 2011. Mr. Berhe claims to have filed an earlier application for mediation, but he provided no record that he did. I reject his evidence in this regard.

Mr. Berhe applied for arbitration on August 2, 2011. That was 119 days after the mediator reported. Mr. Berhe also claims to have filed an earlier application for arbitration. That claim is irrelevant to the question of proceeding with this application. Mr. Berhe’s failure to comply with the 90-day limitation means that he cannot proceed with this arbitration, even if he applied for mediation within two years of the Insurer’s refusal to pay.

However, Mr. Berhe also did not comply with the two year limitation. The Insurer gave a clear and unequivocal refusal to pay IRBs, ACBs and HK by OCF-9 dated May 6, 2008.⁵ As noted above, Mr. Berhe did not apply for mediation until October 7, 2010 (approximately 2 years and 5 months later).

There remains the issue of the medical benefits that Mr. Berhe claims. The application for arbitration claims medical benefits in the amount of $3,900 for services provided by “Bay & College Physio” and $2,900 for services by “Dufferin Chiropractic”. The claims were similarly described in the application for mediation. The dates of treatment plans were not provided. The material submitted at the hearing did not include a treatment plan by either facility.

Mr. Berhe did submit treatment plans by service providers with similar names to the ones identified in the application for arbitration. He applied for mediation more than two years after the Insurer’s denial of these plans.

Mr. Berhe submitted a plan in the amount of $3,020 for services by “Bloor-Dufferin Rehabilitation Centre”.⁶ The Insurer gave a clear and unequivocal denial of this request by OCF-9 dated January 2, 2008.⁷ Mr. Berhe submitted a plan in the amount of $2,997.32 for services by “Bay & College Physiotherapy and Rehab”.⁸ The Insurer gave a clear and unequivocal denial of this request by OCF-9 dated June 13, 2008.⁹

I did not note the discrepancy between the application for arbitration and the documents provided until after the hearing on November 12, 2014. On November 24, 2014, I requested that the parties provide any other relevant treatment plans, within 30 days. Mr. Berhe asked for a further 30 to 60 days to comply with this request, by letter received on December 24, 2014. To date, he has provided nothing new.

It therefore appears that the only possible claims for medical benefits are the ones denied on January 2, 2008 and June 13, 2008. If it can be concluded that Mr. Berhe mediated those claims, his failure to comply with the two year limitation means that he is precluded from arbitration.

EXPENSES:

I did not hear submissions on expenses. If the parties cannot resolve the issue of expenses on their own, they may request a further hearing as set out in Rule 79 of the Dispute Resolution Practice Code. Before pursuing a further hearing, I urge Northbridge to consider whether it can reasonably anticipate recovering any award against Mr. Berhe.

February 27, 2015

Jeffrey Rogers Arbitrator

Financial Services Commission of Ontario