Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 60

FSCO A13-009844, A14-000117 and A14-000176

BETWEEN:

BAKHT SHERA, FARZANA AKHTAR and FAZAL SHERA

Applicant

and

SECURITY NATIONAL INSURANCE CO. /MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Anne Morris

Heard:

By way of written submissions due November 27, 2015

Appearances:

Mr. Joga Chahal participated for Ms. Bakht Shera, Ms. Farzana Akhtar, and Ms. Fazal Shera

Ms. Audrey Ramsay, third party lawyer, participated with the consent of all parties for Ms. Bakht Shera, Ms. Farzana Akhtar, and Ms. Fazal Shera

Mr. Eric Levin participated for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicants, Ms. Bakht Shera, Ms. Farzana Akhtar, and Ms. Fazal Shera were injured in a motor vehicle accident on December 19, 2009. They applied for and received statutory accident benefits from Security National Insurance Co. /Monnex Insurance Mgmt. Inc. (“Security National”) payable under the Schedule.¹ Disputes arose with respect to certain benefits. The parties were unable to resolve their disputes through mediation, and the Applicants applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this Preliminary Issue Hearing regarding each Applicant are:

Ms. Bakht Shera

1. Are the claims of the Applicant, Ms. Bakht Shera, in the within Arbitration, for caregiver benefits, attendant care benefits, housekeeping and home maintenance benefits and medical/rehabilitation benefits statute barred pursuant to s. 281.1 of the Insurance Act² and s. 51 of the Schedule?

2. Is either party liable to pay the other’s expenses?

Result:

1. The claims of the Applicant, Ms. Bakht Shera, in the within Arbitration, for caregiver benefits, attendant care benefits, housekeeping and home maintenance benefits and medical/rehabilitation benefits are statute barred. Her Application for Arbitration is therefore dismissed.

2. If the parties are unable to agree on entitlement to and quantum of expenses, they may schedule an Expense Hearing by way of written submissions before me within 30 days of the date of this decision.

Ms. Farzana Akhtar

1. Are the claims of the Applicant, Ms. Farzana Akhtar, in the within Arbitration, for attendant care benefits and housekeeping and home maintenance benefits, statute barred pursuant to s. 281.1 of the Insurance Act³ and s. 51 of the Schedule?

2. Is either party liable to pay the other’s expenses?

Result:

1. The claims of the Applicant, Ms. Farzana Akhtar, in the within Arbitration, for attendant care benefits and housekeeping and home maintenance benefits, are statute barred. Her Application for Arbitration is therefore dismissed.

2. If the parties are unable to agree on entitlement to and quantum of expenses, they may schedule an Expense Hearing by way of written submissions before me within 30 days of the date of this decision.

Ms. Fazal Shera

1. Are the claims of the Applicant, Ms. Fazal Shera, in the within Arbitration, for caregiver benefits, attendant care benefits and housekeeping and home maintenance benefits, statute barred pursuant to s. 281.1 of the Insurance Act⁴ and s. 51 of the Schedule?

2. Is either party liable to pay the other’s expenses?

Result:

1. The claims of the Applicant, Ms. Fazal Shera, in the within Arbitration, for caregiver benefits, attendant care benefits and housekeeping and home maintenance benefits are statute barred. She may proceed to Arbitration on the medical/rehabilitation benefits listed in the Application for Arbitration.

2. If the parties are unable to agree on entitlement to and quantum of expenses, they may schedule an Expense Hearing by way of written submissions before me within 30 days of the date of this decision.

EVIDENCE AND ANLYISIS:

The Law

Section 281.1 of the Insurance Act provides as follows:

Limitation period

281.1 (1) A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.

Exception

(2) Despite subsection (1), a proceeding or arbitration under clause 281 (1) (a) or (b) may be commenced,

(a) if there is an evaluation under section 280.1, within 30 days after the person performing the evaluation reports to the parties under clause 280.1 (4) (b);

(b) if mediation fails but there is no evaluation under section 280.1, within 90 days after the mediator reports to the parties under subsection 280 (8).

Section 51 of the Schedule provides as follows:

51.1 (1) A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

(2) Despite subsection (1), a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280 (8) of the Act or within 30 days after the person performing the evaluation provides a report to the parties under section 280.1 of the Act, whichever is later.

Leading case: Supreme Court of Canada Decision in Smith v. Co-operators General Insurance Co. (“Smith v. Co-operators”) ⁵

The Supreme Court held in this case that the limitation period begins to run upon issuance by the Insurer of a valid refusal. In order for there to be a valid refusal, consumer protection requires that the Insurer must inform the insured person of the dispute resolution process in straightforward and clear language, directed towards an unsophisticated person. For a refusal to pay a claimed benefit to trigger the limitation period, the Insurer’s notice to its Insured must be clear and unequivocal.

Decision

Ms. Bakht Shera

Ms. Bakht Shera was injured in a motor vehicle accident on December 19, 2009.

Her Application for Arbitration was received by FSCO on August 8, 2013. The substantive issues in dispute in the Arbitration are caregiver benefits, attendant care benefits, a claim for a medical benefit in the amount of $1,995.00 pursuant to a treatment plan (OCF-18), dated November 26, 2010, and housekeeping and home maintenance benefits.

On or about June 30, 2010, following Insurer Examinations pursuant to s. 42 of the Schedule, the Insurer sent Ms. Bakht Shera and her lawyer an Explanation of Benefits (“OCF-9”) advising that Ms. Bakht Shera was not entitled to caregiver benefits, housekeeping and home maintenance benefits and attendant care benefits.⁶ The OCF-9 set out the benefits denied and the reasons for the denial. Part 6 of the OCF-9 entitled “Applicant’s Rights to Dispute” set out the steps which Ms. Bakht Shera could take to dispute the Insurer’s determination of her entitlement to benefits. The steps included Mediation and Arbitration and a warning with respect to the two year limitation period was included. The OCF-9 indicated that a copy of the s. 42 examination was enclosed.

Ms. Bakht Shera, in her responding materials, did not deny receiving this OCF-9.⁷ The OCF-9 is attached as Exhibit “B” to Ms. Bakht Shera’s affidavit, sworn on November 4, 2015, although it is otherwise not referred to in the affidavit.

On or about November 26, 2010, Ms. Bakht Shera submitted an OCF-18 seeking entitlement to $1,995.00 in medical/rehabilitation benefits for a neurological assessment.⁸

On December 8, 2010, following an Insurer Examination by way of file review pursuant to s. 42 of the Schedule, the Insurer wrote to Ms. Bakht Shera notifying her that she was not entitled to “any goods, services and / or assessment” in respect of the OCF-18, dated November 26, 2010, referred to above.⁹

The letter of December 8, 2010 also provided the reasons for the Insurer’s denial of the treatment plan for a neurological assessment. It indicated that a copy of the Insurer Examination was enclosed. It also enclosed a one page document entitled “Applicant’s Right to Dispute” setting out the steps which Ms. Bakht Shera could take to resolve the dispute. The steps referred to included Mediation and Arbitration, and the document contained a warning with respect to the two year time limit.¹⁰ The letter indicates that it was copied to Ms. Bakht Shera’s lawyer.

Ms. Bakht Shera, in her responding materials, did not deny receiving a copy of the letter of December 8, 2010.

The benefits listed in the Application for Arbitration were the subject of a Mediation conducted between March 19, 2013 and May 15, 2013. The Report of Mediator was issued on May 15, 2013.¹¹

Ms. Bakht Shera applied for Mediation on or about October 12, 2012 according to paragraph 34 of the factum filed on Ms. Bakht Shera’s behalf. This statement in the factum is unsupported by evidence. According to paragraph 14 of the affidavit of Karen Lowe, sworn November 13, 2015, the Application for Mediation was filed on or about January 24, 2013. Neither party filed a copy of the Application for Mediation.

I note that Ms. Bakht Shera did not assert that the Application for Mediation was in fact filed within the two year limitation period. One would have expected that she would have done so if the correct date of filing was October 12, 2012 as this would mean that one of her claims at least was clearly not time limited. I therefore find on the basis of the materials before me that the Application for Mediation was filed on January 24, 2013 in accordance with the un-contradicted evidence of Karen Lowe in her affidavit of November 13, 2015, and not on October 12, 2012 as asserted in the factum filed on Ms. Bakht Shera’s behalf.

The Insurer submitted that the issues in dispute in Ms. Bakht Shera’s Application for Arbitration are statute barred because the Application for Arbitration was commenced more than two years after the Insurer denied the benefits and more than 90 days after the Report of Mediator with respect to those claims was received by the parties.

Ms. Bakht Shera submitted that her claim for a caregiver benefit is not statute barred because the Insurer did not provide a valid refusal of this benefit. Ms. Bakht Shera submitted that the Insurer’s denial of caregiver benefits was not a valid refusal because the Insurer did not put Ms. Bakht Shera to an election with respect to weekly disability benefits as required by s. 36(2) of the Schedule.

Section 36 (2) of the Schedule provides as follows:

If a person’s application indicates that he or she may qualify for more than one of the benefits referred to in subsection (1), the insurer shall notify the person that he or she must elect within 30 days after receiving the notice which benefit he or she wishes to receive.

It appears, however, that Ms. Bakht Shera did not qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit. She appeared to qualify for the caregiver benefit although the Insurer subsequently determined that she did not meet the disability test for that benefit. She did not qualify for an income replacement benefit as noted at page 4 of an OCF-9 from the Insurer, dated February 26, 2010.¹² Ms. Bakht Shera has not asserted that she would in fact qualify for an income replacement benefit. Ms. Bakht Shera suggests that she qualified for a non-earner benefit as well as a caregiver benefit.

A disability certificate, dated February 24, 2010, filed on behalf of Ms. Bakht Shera, indicated with respect to the non-earner benefit that Ms. Bakht Shera suffered a complete inability to carry on a normal life for a period of 9-12 weeks. While a period of “more than 12 weeks” was a check-off option on the disability certificate, the service provider who completed the certificate did not tick off that option.¹³ Since s. 12(7) of the Schedule provides with respect to a non-earner benefit that an Insurer is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life, it would appear that Ms. Bakht Shera did not qualify for a non-earner benefit when she applied for benefits. She qualified only for a caregiver benefit and an election was therefore not necessary in my view.

Ms. Bakht Shera also submitted that the Insurer’s denial of caregiver, housekeeping and home maintenance, and attendant care benefits was not a valid refusal for the reason that the Insurer did not comply with s. 37(1) of the Schedule which provides as follows:

If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer,

(a) shall request that the insured person submit within 15 business days a new disability certificate completed as of a date on or after the date of the request; and

(b) may notify the insured person that the insurer requires the insured person to be examined under section 42. O. Reg. 546/05, s. 11.

The denials in question, however, are not in relation to duration of benefits. “Still entitled” implies duration and not initial entitlement. The denials at issue relate to denials of initial entitlement to benefits as appears from my review of the materials presented. The accident was in December 2009 and the disability certificate is dated February 24, 2010. The Insurer’s OCF-9 in response to the Application for Benefits is dated February 26, 2010.

The Insurer was not required to request a new disability certificate prior to scheduling the Insurer Examinations in these circumstances. The Insurer’s denial of benefits set out in the OCF-9 of June 30, 2010 is not invalid for this reason.

Ms. Bakht Shera raised an issue as to whether a denial of a number of benefits, set out in a letter from the Insurer dated December 1, 2010, made on the basis of non-compliance with undertakings given at an Examination Under Oath, was a valid refusal. The Insurer, however, relies on the refusals of June 30, 2010 and December 10, 2010 as the triggers for the limitation period.¹⁴ These refusals relate specifically to the benefits at issue in the Application for Arbitration. I do not find that the letter of December 1, 2010 makes the refusals of June 30, 2010 and December 10, 2010 any less clear and unequivocal. I see no need to consider the issue of whether the non-compliance letter of December 1, 2010 was a valid refusal of benefits triggering a limitation period, given my findings below that the refusals of June 30, 2010 and December 10, 2010 are valid refusals.

Ms. Bakht Shera referred in her materials to a letter, dated December 2, 2010, referring to a Notice of Examination with respect to the OCF-18 of November 26, 2010. This letter is consistent with a “file review” report having been completed by an insurer assessor on December 7, 2010¹⁵ and sent to Ms. Bakht Shera with the letter, dated December 8, 2010, which denied the OCF-18 of November 26, 2010.¹⁶

Ms. Bakht Shera indicated in her affidavit of November 4, 2015¹⁷ that she did not believe that the Insurer refused to pay this benefit after receiving the insurer assessment. This is inconsistent with the fact that this benefit is an issue in dispute in the Application for Arbitration. Ms. Bakht Shera has not denied receiving the letter of December 8, 2010 which was addressed to her and copied to her lawyer. I find that the letter of December 8, 2010 was a valid denial of the OCF-18 of November 26, 2010 which triggered the limitation period with respect to that benefit.

Ms. Bakht Shera submitted that the Insurer is estopped from relying on the limitation period by its conduct in requesting an Examination Under Oath on caregiver benefits, attendant care benefits, housekeeping and home maintenance benefits and medical/rehabilitation benefits.

The Insurer requested an Examination Under Oath in accordance with s. 33(1) of the Schedule by letter dated May 28, 2010. The examination was scheduled for June 15, 2010 and proceeded on that date.¹⁸ The denials, which are the subject of this Preliminary Issue Hearing, were sent on June 30, 2010 and December 8, 2010.

As stated in Zeppieri and Royal Insurance Company of Canada,¹⁹ an “insurer may be estopped from raising a limitation period against an applicant, in circumstances in which the applicant reasonably relies on the insurer’s conduct, to the applicant’s detriment.” I am unable to see that an Examination Under Oath conducted prior to the denials in question gives rise to estoppel by conduct which prevents the Insurer from raising the limitation period with respect to those refusals. It appears that the Insurer sought compliance by Ms. Shera with her undertakings given at the Examination Under Oath following the denial of certain benefits of June 30, 2010, but this is consistent with an Insurer’s ongoing obligation to adjust an Applicant’s claims under the insurance policy. I see nothing in this conduct which might have reasonably led Ms. Bakht Shera to conclude that the Insurer did not intend to rely on the limitation periods triggered by the denials of June 30, 2010 or December 8, 2010.

For the above reasons, I find that the denials of benefits on June 30, 2010 and December 8, 2010 were valid refusals which triggered the limitation periods. Ms. Bakht Shera did not apply for Mediation or Arbitration within the two year limitation periods. Ms. Bakht Shera’s claims for caregiver benefits, attendant care benefits, housekeeping and home maintenance benefits, and for a medical/rehabilitation benefit pursuant to the OCF-18, dated November 26, 2010, are therefore statute barred.

Since these time-barred benefits are the only substantive issues in the within Application for Arbitration, Ms. Bakht Shera’s Application for Arbitration is dismissed.

Ms. Farzana Akhtar

Ms. Farzana Akhtar was injured in a motor vehicle accident on December 19, 2009.

Her Application for Arbitration was received by FSCO on December 31, 2013. The substantive issues in dispute in the Arbitration are attendant care benefits and housekeeping and home maintenance benefits.

On or about June 25, 2010, following Insurer Examinations pursuant to s. 42 of the Schedule, the Insurer sent Ms. Akhtar and her lawyer an OCF-9 advising that she was not entitled to attendant care benefits or housekeeping and home maintenance.²⁰ The OCF-9 set out the benefits denied and the reasons for the denial. Part 6 of the OCF-9 entitled “Applicant’s Rights to Dispute” set out the steps which Ms. Akhtar could take to dispute the Insurer’s determination of her entitlement to benefits. The steps included Mediation and Arbitration. A warning with respect to the two year limitation period to dispute the Insurer’s determination of entitlement to benefits was included. A copy of the s. 42 report was enclosed.

Ms. Akhtar did not deny receiving this OCF-9 in her responding materials.

The benefits listed in the Application for Arbitration were the subject of a Mediation conducted between July 16, 2013 and October 9, 2013. The Report of Mediator was issued on October 9, 2013.²¹

Ms. Akhtar applied for Mediation on October 17, 2012 according to the affidavit of Karen Lowe.²² According to the factum filed on behalf of Ms. Akhtar, she applied for Mediation on July 16, 2013.²³ The statement in the factum is unsupported by evidence. Either way, whether Ms. Akhtar applied for Mediation on October 17, 2012 or July 16, 2013, the application was filed more than two years after the benefits were denied in the OCF-9 of June 25, 2010.

The Insurer submitted that Ms. Akhtar’s Application for Arbitration is statute barred as it is out of time.

Ms. Akhtar submitted that there has been no valid refusal to pay housekeeping and home maintenance benefits and attendant care benefits and that the limitation period has therefore not been triggered.

Ms. Akhtar submitted that the Insurer did not comply with s. 37(1) of the Schedule in that the Insurer did not request an updated disability certificate prior to scheduling the s. 42 examinations. As discussed earlier with respect to Ms. Bakht Shera’s claims, this is not a question of duration of benefits as implied by the words “still entitled to specified benefits” in s. 37(1). It is, rather, a question of denial of initial entitlement to benefits as appears from my review of the materials presented. The accident was in December 2009 and the disability certificate is dated January 29, 2010.²⁴ The s. 42 examinations were scheduled by way of Notice of Examination sent on March 25, 2010 and the examinations took place in April, 2010.²⁵ The Insurer was not required to request a new disability certificate prior to scheduling the Insurer Examinations in these circumstances. The Insurer’s denial of benefits set out in the OCF-9 of June 25, 2010 is not invalid for this reason.

The Insurer sent Ms. Akhtar and her lawyer a notice of attendance at an Examination Under Oath on or about May 28, 2010. The examination was subsequently rescheduled to September 1, 2010. Ms. Akhtar did not attend and on September 27, 2010, the Insurer advised Ms. Akhtar that her benefits would be suspended for non-attendance.²⁶

As with Ms. Bakht Shera, and as discussed above, Ms. Akhtar raised the issue of whether or not the letter of September 27, 2010 was a valid refusal of benefits. The Insurer, however, relies on the denial of benefits of June 25, 2010 as the trigger for the limitation period.²⁷ This denial relates specifically to the benefits at issue in the Application for Arbitration. I do not find that the letter of September 27, 2010 makes the denial of June 25, 2010 any less clear and unequivocal. I see no need to consider the issue of whether the non-compliance letter of September 27, 2010 was a valid refusal of benefits triggering a limitation period.

Ms. Akhtar submitted that the Insurer is estopped from relying on the limitation period by its conduct in requesting an Examination Under Oath after the denial.

The Insurer requested an Examination Under Oath in accordance with s. 33(1) of the Schedule by letter, dated May 28, 2010. The examination was scheduled for June 14, 2010 and rescheduled to September 1, 2010.²⁸ The denial, which is the subject of this Preliminary Issue Hearing, was sent on June 25, 2010.

The Examination Under Oath was scheduled prior to the denial of June 25, 2010 but rescheduled after that date. As noted earlier with respect to Ms. Bakht Shera’s claims, an Insurer has an ongoing obligation to adjust an Applicant’s claims under the insurance policy. I see nothing in the fact of the Insurer’s rescheduling of the Examination Under Oath which might reasonably have led Ms. Akhtar to conclude that the Insurer did not intend to rely on the limitation period triggered by the denial of June 25, 2010.

For the above reasons, I find that the denial of benefits on June 25, 2010 was a valid refusal of benefits which triggered the limitation period. Ms. Akhtar did not apply for Mediation or Arbitration within the two year period. Ms. Akhtar’s claims for attendant care benefits and housekeeping and home maintenance benefits are therefore statute barred.

Because these are the only substantive issues in the within Application for Arbitration, Ms. Akhtar’s Application for Arbitration is dismissed.

Ms. Fazal Shera

Ms. Fazal Shera was injured in a motor vehicle accident on December 19, 2009.

Her Application for Arbitration was received by FSCO on January 2, 2014. The substantive issues in dispute in the Arbitration are caregiver benefits, attendant care benefits, housekeeping and home maintenance benefits, as well as medical/rehabilitation benefits.

I note that the Insurer is not claiming that the medical/rehabilitation benefits are statute barred from proceeding to Arbitration and is not seeking an order in this Preliminary Issue Hearing with respect to those benefits.²⁹ I will therefore consider only with the caregiver, attendant care, and housekeeping and home maintenance benefits in this decision.

On or about May 13, 2010, following Insurer Examinations pursuant to s. 42 of the Schedule, the Insurer sent Ms. Fazal Shera and her lawyer an OCF-9 advising that Ms. Fazal Shera was not entitled to caregiver, housekeeping and home maintenance or attendant care benefits.³⁰

The OCF-9 set out the benefits denied and the reasons for the denial. Part 6 of the OCF-9 entitled “Applicant’s Rights to Dispute” set out the steps which Ms. Fazal Shera could take to dispute the Insurer’s determination of her entitlement to benefits. The steps included Mediation and Arbitration and a warning with respect to the two year limitation period to dispute the Insurer’s determination of entitlement to benefits was included. The OCF-9 indicated that a copy of the s. 42 examination was enclosed.

Ms. Fazal Shera did not deny receiving this OCF-9 in her responding materials and a copy of the OCF-9 is attached as Exhibit “E” to Ms. Fazal Shera’s affidavit sworn on November 4, 2015.

The benefits listed in the Application for Arbitration were the subject of a Mediation conducted between July 16, 2013 and October 9, 2013. The Report of Mediator was issued on October 9, 2013.³¹

Ms. Fazal Shera applied for Mediation on October 11, 2012 according to the affidavit of Karen Lowe.³² According to the factum filed on behalf of Ms. Fazal Shera, she applied for Mediation on July 16, 2013.³³ The statement in the factum is unsupported by evidence. Either way, whether Ms. Fazal Shera applied for Mediation on October 11, 2012 or July 16, 2013, the application was filed more than two years after the benefits were denied in the OCF-9 of June 25, 2010.

The Insurer submitted that Ms. Fazal Shera’s Application for Arbitration is statute barred as it is out of time.

Ms. Fazal Shera submitted that the Insurer did not comply with s. 37(1) of the Schedule in that the Insurer did not request an updated disability certificate prior to scheduling the s. 42 examinations.

As discussed earlier with respect to the other Applicants above, the denial of the benefits in question does not go to the duration of benefits as implied by the words “still entitled to specified benefits” in s. 37(1). The denials, rather, relate to initial entitlement to benefits as appears from my review of the materials presented. The accident was in December 2009 and the disability certificate in Ms. Fazal Shera’s case is dated February 24, 2010.³⁴ The examinations were scheduled by way of Notice of Examination sent on March 25, 2010 and the s. 42 examinations took place in April 2010.³⁵

Ms. Fazal Shera indicated in her affidavit of November 4, 2015, that the Insurer had paid attendant care benefits in the amount of $1,107.11 at a rate of $453.00 per month to May 21, 2010, which is the date of stoppage set out in the OCF-9. The fact that the Insurer paid benefits pending s. 42 examinations does not alter the characterization of the denial of benefits by OCF-9, dated May 13, 2010, as a denial of initial entitlement to benefits rather than a denial of ongoing entitlement to benefits. The Insurer was not required to request a new disability certificate prior to scheduling the Insurer Examinations in these circumstances or a new Form 1 Assessment of Attendant Care Needs. The Insurer’s denial of benefits set out in the OCF-9 of May 13, 2010 is not invalid for this reason.

The Insurer sent Ms. Fazal Shera and her lawyer a notice of attendance at an Examination Under Oath in or about May 28, 2010 and Ms. Fazal Shera attended the examination on June 15, 2010.³⁶ On December 1, the Insurer advised Ms. Fazal Shera and her lawyer that Ms. Fazal Shera was not entitled to any benefits for failure to provide answers given at her Examination Under Oath.³⁷

In a similar manner to that discussed above with respect to the other Applicants, Ms. Fazal Shera raised the issue of whether or not the letter of December 1, 2010 was a valid refusal of benefits. The Insurer relies on the denial of benefits of May 13, 2010 as the trigger for the limitation period.³⁸ This denial relates specifically to the benefits at issue in this Preliminary Issue Hearing. I do not find that the letter of December 1, 2010 makes the denial of May 13, 2010 any less clear and unequivocal. I see no need to consider the issue of whether the non-compliance letter of December 1, 2010 was a valid refusal of benefits triggering a limitation period for the purpose of this Preliminary Issue Hearing.

Ms. Fazal Shera also submitted that the Insurer is estopped from relying on the limitation period by its conduct in requesting an Examination Under Oath. The Insurer requested an Examination Under Oath in accordance with s. 33(1) of the Schedule by letter, dated May 28, 2010. The examination was scheduled for June 15, 2010 and proceeded on that date.³⁹ The denial, which is the subject of this Preliminary Issue Hearing, was sent on May 13, 2010, prior to the request for the Examination Under Oath.

As noted earlier with respect to the other Applicants, an Insurer has an ongoing obligation to adjust an Applicant’s claims under the insurance policy. I see nothing in the fact of the Insurer’s scheduling an Examination Under Oath which might reasonably have led Ms. Fazal Shera to conclude that the Insurer did not intend to rely on the limitation period triggered by the denial of May 13, 2010.

For the above reasons, I find that the denial of benefits on May 13, 2010 was a valid refusal of benefits with respect to Ms. Fazal Shera’s claims for caregiver benefits, attendant care benefits and housekeeping and home maintenance benefits, and that this denial triggered the limitation period with respect to those claims. Ms. Fazal Shera did not apply for Mediation or Arbitration within the two year period. Ms. Fazal Shera’s claims for attendant care benefits and housekeeping and home maintenance benefits are therefore statute barred.

Ms. Fazal Shera may proceed to Arbitration on the medical/rehabilitation issues listed in the Application for Arbitration.

EXPENSES:

If the parties are unable to agree on entitlement to and quantum of expenses, they may schedule an Expense Hearing by way of written submissions before me within 30 days of the date of this decision.

February 19, 2016

Anne Morris Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 60

FSCO A13-009844, A14-000117 and A14-000176

BETWEEN:

BAKHT SHERA, FARZANA AKHTAR and FAZAL SHERA

Applicant

and

SECURITY NATIONAL INSURANCE CO. /MONNEX INSURANCE MGMT. INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

1. Ms. Bakht Shera’s Application for Arbitration is dismissed.

2. Ms. Farzana Akhtar’s Application for Arbitration is dismissed.

3. The claims of Ms. Fazal Shera, in the within Arbitration, for caregiver benefits, attendant care benefits and housekeeping and home maintenance benefits are statute barred. She may proceed to Arbitration on the medical/rehabilitation benefits listed in the Application for Arbitration.

4. If the parties are unable to agree on entitlement to and quantum of expenses, they may schedule an Expense Hearing by way of written submissions before me within 30 days of the date of this decision.

February 19, 2016

Anne Morris Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2R.S.O. 1990, c. I.8.
3. 3Ibid.
4. 4Ibid.
5. 52002 SCC 30, [2002] 2 S.C.R. 129, [2002] S.C.J. No. 30.
6. 6Affidavit of Karen Lowe, sworn on November 13, 2013, para. 10 and Exhibit “G” to the Affidavit.
7. 7The Insurer’s Motion materials were initially filed in September 2015. The affiant in those materials subsequently left the Insurer and a new affiant was substituted on November 13, 2015. The evidence, other than the affiant, remained unchanged. There was no objection raised by the Applicants with respect to the new affiant.
8. 8Affidavit of Karen Lowe, para. 11 and Exhibit “H” to the Affidavit.
9. 9Affidavit of Karen Lowe, paras. 12 and 13 and Exhibit “J” to the Affidavit.
10. 10Exhibit “J” to the Affidavit of Karen Lowe.
11. 11Exhibit “A” to the Affidavit of Karen Lowe.
12. 12Exhibit “B” to the Affidavit of Bakht Shera, sworn on November 4, 2015.
13. 13Exhibit “A” to the Affidavit of Bakht Shera, sworn on November 4, 2015.
14. 14“Grounds for Motion” section of Insurer’s Notice of Motion, dated November 13, 2015.
15. 15Exhibit “I” to the Affidavit of Karen Lowe.
16. 16Exhibit “J” to the Affidavit of Karen Lowe.
17. 17Paragraph 33.
18. 18Paragraph 15 of the Affidavit of Karen Lowe and Exhibit “L” to that Affidavit.
19. 19[1994] OICD No. 13.
20. 20Affidavit of Karen Lowe, sworn on November 13, 2015, para. 11, and Exhibit “H” to the Affidavit.
21. 21Exhibit “A” to the Affidavit of Karen Lowe, sworn on November 13, 2013.
22. 22Paragraph 12.
23. 23Paragraph 44.
24. 24Exhibit “A” to the Affidavit of Farzana Akhtar, sworn on November 4, 2015.
25. 25Affidavit of Karen Lowe, paras. 7, 8, 9, 10.
26. 26Affidavit of Karen Lowe, paras. 13, 14, 15, 16, 17.
27. 27“Grounds for Motion” section of Insurer’s Notice of Motion, dated November 13, 2015.
28. 28Exhibit “J” to the Affidavit of Karen Lowe.
29. 29Notice of Motion of Insurer, dated November 13, 2015.
30. 30Affidavit of Karen Lowe, sworn on November 13, 2015, para. 11, and Exhibit “H” to the Affidavit.
31. 31Exhibit “A” to the Affidavit of Karen Lowe.
32. 32Paragraph 17.
33. 33Paragraph 30.
34. 34Exhibit “B” to the Affidavit of Fazal Shera, sworn on November 4, 2015.
35. 35Affidavit of Karen Lowe, paras. 7, 8, 9, 10.
36. 36Paragraph 18 of the Affidavit of Karen Lowe and Exhibit “P” to the Affidavit.
37. 37Exhibit “N” to the Affidavit of Karen Lowe.
38. 38“Grounds for Motion” section of Insurer’s Notice of Motion, dated November 13, 2015.
39. 39Paragraph 19 of the Affidavit of Karen Lowe.