Vedat Kayretli v. Personal Insurance Company of Canada, 2015 ONFSCDRS 47

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 47

FSCO A12-003522

BETWEEN:

VEDAT KAYRETLI

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Susan Sapin

Heard: February 27, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Jason Singer for Mr. Kayretli

Jonathan Hale for Personal Insurance Company of Canada

Issues:

The Applicant, Vedat Kayretli, claims he suffered catastrophic impairments when he was struck by a car and fell and hit his head against a concrete planter on the sidewalk on January 20, 2010. He applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal stopped paying caregiver and attendant care benefits under s. 33 of the Schedule effective September 2010, on the basis that it lacked information reasonably required to establish that he was entitled to the benefits.

Mr. Kayretli disputed the stoppage and applied for mediation in January 2012, at which point Personal raised the preliminary issue that the incident that took place on January 20, 2010 did not meet the definition of an “accident” under s.2(1) of the Schedule, and so Mr. Kayretli did not qualify for benefits.

Personal also required repayment of all benefits paid, in the amount of $10,267.88, plus interest, under s. 47(1)(a) of the Schedule. Mr. Kayretli’s position is that Personal is estopped from raising the preliminary issue of whether there was an accident, so long after the event. The parties were unable to resolve their disputes through mediation, and Mr. Kayretli 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 before me are:

1. Is Personal estopped from relying on the defence that Mr. Kayretli was not involved in an accident?

2. Was Mr. Kayretli injured as a result of an “accident” as defined in section 2(1) of the Schedule?

3. Is Mr. Kayretli required to repay Personal the $10,267.88 in benefits paid to him?

Result:

1. Personal is not estopped from relying on the defence that Mr. Kayretli was not involved in an accident.

2. Mr. Kayretli was not injured as a result of an acccident.

3. Mr. Kayretli is not required to repay to Personal the benefits he received.

BACKGROUND AND ISSUES:

To qualify for benefits, Mr. Kayretli must establish,