Financial Services Commission of Ontario
Neutral Citation: 2016 ONFSCDRS 41
Appeal P15-00006
OFFICE OF THE DIRECTOR OF ARBITRATIONS
NIRMALADEVI NADARAJAH Appellant
and
RBC GENERAL INSURANCE COMPANY Respondent
BEFORE: David Evans
REPRESENTATIVES: David S. Wilson for Ms. Nirmaladevi Nadarajah Pamela A. Brownlee for RBC General Insurance Company
HEARING DATE: On the record
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Arbitrator’s order of December 16, 2014, is confirmed and this appeal is dismissed.
If the parties cannot agree on the legal expenses of this appeal, a determination of them on the record may be requested within 30 days of this decision.
February 3, 2016
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Nirmaladevi Nadarajah was in an accident on August 24, 2005. Under the SABS–1996,1 she made claims for housekeeping and home maintenance benefits and income replacement benefits (IRBs). Her insurer, RBC General Insurance Company, purported to deny the housekeeping benefits November 9, 2005, and the IRBs effective April 6, 2006. In 2010 Ms. Nadarajah sought mediation for those claims.
Arbitrator Wilson found, on an interim benefits motion, that Ms. Nadarajah filed her claims beyond the two-year limitation period set out in the Insurance Act and s. 51(1) of the SABS. Therefore, she could not proceed with the arbitration, and her interim benefits claim was moot.
Delegate Blackman rescinded Arbitrator Wilson’s decision, found the IRB claim could proceed, and ordered a new hearing of the issues of the time limit for the housekeeping benefits and Ms. Nadarajah’s entitlement to interim benefits.
In his decision dated December 16, 2014, Arbitrator Feldman (the Arbitrator) found that the housekeeping claim was filed out of time and that interim IRB benefits are not payable.
Ms. Nadarajah appeals the Arbitrator’s decision barring her housekeeping benefits claim.
II. BACKGROUND
With respect to the housekeeping claim, the Arbitrator rejected the two arguments advanced by Ms. Nadarajah: that she had never made a claim for housekeeping before the claim was denied, and that the denial notice was not clear and unequivocal.
As to whether the housekeeping claim was advanced, the Arbitrator noted:
According to the Affidavit of the Applicant, following the accident she was unable to perform any housekeeping and had a friend, Nirmala Kanapathippillai, perform housekeeping (and attendant care) for the Applicant in exchange for the promise to pay her no less than $100.00 per week. By November 9, 2005 (the date of the Insurer’s refusal to pay housekeeping and home maintenance benefits), no formal demand for payment of housekeeping benefits had been submitted by the Applicant to the Insurer; the Applicant takes the position that the Insurer had no right to refuse to pay benefits that had not yet been claimed.
However, the Arbitrator found that a claim can be made even in the absence of an Expense Form (Form OCF-6). Here, both an Activities of Normal Life Form OCF-12 and a Disability Certificate submitted by Ms. Nadarajah indicated she could not do her usual pre-accident housekeeping activities.
The Arbitrator noted that the OCF-12 indicated that since the accident Ms. Nadarajah could not do her usual shopping, cleaning, laundry, and meal preparation. These are all headings under Physical Activities on the OCF-12.
The Arbitrator found the insurer reasonably investigated the housekeeping issue by having Laurie Taylor, O.T., conduct an initial in-home assessment. It supported the housekeeping claim, indicating that Ms. Nadarajah said a housekeeper assisted her 5 hours a day, 7 days a week.
After that assessment, RBC indicated it would not pay any benefits until it received a Disability Certificate. Ms. Nadarajah then provided RBC with a Disability Certificate. It showed that since the accident she suffered a substantial inability to perform her normal housekeeping and the disability would last 9-12 weeks.
The Arbitrator concluded that RBC was justified in concluding that a housekeeping claim was being advanced in those documents.
Ms. Taylor then conducted a second in-home assessment. She found no assistance was needed. RBC denied the claim based on her report, which was included with its denial. It appears that RBC never did pay any housekeeping benefits.
As to whether the denial was valid, the Arbitrator found the wording of the Form OCF-9 denial dated November 9, 2005 to be clear and unequivocal. RBC included Ms. Taylor’s report so that Ms. Nadarajah could understand the reason for the denial. The Arbitrator found no ambiguity just because the adjuster did not specifically state the report was accepted.
Accordingly, since the Arbitrator found there had been a claim for housekeeping benefits that was then validly denied, he found the two-year time limit applied to the claim.
III. ANALYSIS
Ms. Nadarajah submits that there was nothing before the Arbitrator to warrant his drawing the inference that “the conduct of the Applicant [was] sufficient to justify the Insurer concluding that a claim was being advanced for housekeeping and home maintenance benefits.” She submits the conclusion appears to be premised on the fact that an insurer would only assess claimants where a claim had been made, and not where a claim might be made.
Beyond that, she submits that even if the insurer was justified in believing a housekeeping claim was made, it is irrelevant where it is “clear” that no claim in fact was being made. She then cites various arbitral authorities for the proposition that where no claim has been made, a denial of benefits is invalid and cannot form the commencement of the limitation period.
However, I find the cases cited not helpful. For instance, in Johnston and Pafco Insurance Company Limited, (FSCO A99‑001086, September 28, 2000), I was dealing with a claim for rehabilitation benefits, where there had been no submitted treatment plan. However, a precondition for making such a claim is a treatment plan. There is no such precondition for making a housekeeping claim.
Here, Ms. Nadarajah provided information that she did meet the test for housekeeping benefits in the OCF-12 and the Disability Certificate. There was evidence before the Arbitrator for his finding that this constituted an application for housekeeping benefits. I see no reason to intervene.
Ms. Nadarajah provided no submissions that the Arbitrator erred in finding the notice of termination clear and unequivocal. I find his reasons supporting the denial unambiguous and evidence-based.
Accordingly, the appeal is dismissed, and the order of the Arbitrator dated December 16, 2014 is affirmed.
IV. EXPENSES
If the parties are unable to agree about the legal expenses of this appeal, a determination of them may be requested within 30 days of this decision and in accordance with Rule 79 of the Dispute Resolution Practice Code. As with the appeal, the expenses will be determined on the record.
February 3, 2016
David Evans Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.