Neutral Citation: 2015 ONFSCDRS 89 FSCO A12-001012

BETWEEN:

AMANDA KING Applicant

and

AXA INSURANCE (CANADA) Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Jeffrey Rogers Heard: April 1, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms. King, representing herself Ms. Tricia McAvoy, solicitor for AXA Insurance (Canada)

Issues:

The Applicant, Amanda King, was injured in a motor vehicle accident on May 25, 2010. She applied for and received statutory accident benefits from AXA Insurance (Canada) (“AXA”), payable under the Schedule.¹ Disputes arose regarding her entitlement to further claimed benefits. The parties were unable to resolve their disputes through mediation, and Ms. King applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

The preliminary issues are:

Is Ms. King 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 Act and subsection 56(1) of the Schedule?
Is either party entitled to its expenses?

Result:

Ms. King is precluded from proceeding to arbitration and therefore this arbitration is dismissed.
Ms. King shall pay AXA its expenses of the arbitration in the amount of $1,500.

EVIDENCE AND ANALYSIS:

Subsection 281(5) of the Act and subsection 51(1) of the Schedule require that mediation or arbitration be commenced within two years after the insurer’s refusal to pay. If mediation is commenced in time, subsection 281.1(2)(b) of the Act and subsection 51(2) of the Schedule extend the time for applying for arbitration for a further 90 days after the mediator reports to the parties.

Ms. King applied for mediation within the prescribed time. AXA argues that Ms. King is precluded from proceeding to arbitration because she applied for arbitration more than 90 days after the mediator reported to the parties and more than two years after the latest denial of any of the benefits in dispute.

In this arbitration, Ms. King claims non-earner benefits, housekeeping and home maintenance benefits, attendant care benefits, medical benefits, and the cost of assessments or examinations. The Application for Arbitration is not precise in its reference to the claims, but the details as agreed by the parties are in the report of the pre-hearing Arbitrator.

The relevant dates are not in dispute. They are set out in the table below as derived from Exhibit 1 which Ms. King agreed was accurate and admissible:

Benefit	Denial Date	Report of Mediator	Application for Arbitration
Non-Earner	December 21, 2010²	January 9, 2012	April 5, 2013
Attendant Care	December 21, 2010³	January 9, 2012	April 5, 2013
Housekeeping	December 21, 2010⁴	January 9, 2012	April 5, 2013
	December 1, 2010⁵	January 9, 2012	April 5, 2013
	December 9, 2010⁶	January 9, 2012	April 5, 2013
	September 21, 2010⁷	January 9, 2012	April 5, 2013

As can be seen from the table, Ms. King applied for arbitration more than 90 days after the mediator reported to the parties and more than two years after the date of AXA’s latest refusal.

The application for mediation and the pre-hearing report refer to two claims not listed in the table: a claim for treatment in the amount of $915.11, submitted on September 13, 2010, and a claim for an Attendant Care Assessment, submitted on July 2, 2010. There is no record of claims in those amounts or on those dates.

Ms. King advised that she would not present evidence but that she intended to make submissions. She submitted that her Application for Arbitration was not filed out of time because she was required to apply for arbitration within two years of the date the mediator reported to the parties.

After I gave her a copy of the section 51 of the Schedule for review, Ms. King advised that she had no submissions. She advised that it was her intention to apply on time but she submitted her application without a cheque. The Commission’s file contains an Application for Arbitration which was received on March 2, 2012, without a cheque. That Application could not commence arbitration because the fee required by Rule 21.1(e) of the Rules was not paid.

With regard to the claimed benefits for which documents exist as listed in the Table above, I find that AXA gave Ms. King a clear and unequivocal refusal that complies with the requirements of Smith v. Co-operators General Insurance Co.⁸. I find that Ms. King is precluded from proceeding to arbitration because she did not apply for arbitration within two years of the refusals or within 90 days of the date the mediator reported to the parties.

With regard to the benefits for which no documents have been produced, I find that there is no evidence of a dispute between the parties which could be the subject of mediation or arbitration. The result of the above findings is that this arbitration must be dismissed.

EXPENSES:

AXA sought its expenses of the arbitration. I find that AXA is entitled to its expenses, based on its complete success. AXA did not provide details of its claim for expenses. It agreed that I fix the amount summarily. I fix AXA’s expenses at $1,500.

April 24, 2015

Jeffrey Rogers Arbitrator

Financial Services Commission of Ontario