Neutral Citation: 2017 ONFSCDRS 12

FSCO A15-005900

BETWEEN:

SEEMA RAMESWHARSINGH Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

Before: Arbitrator Jeff Musson

Heard: By written submissions due October 14, 2016

Appearances: Mr. P. Michael Rotondo for Ms. Seema Rameswharsingh Ms. Nadia Costantino for Certas Direct Insurance Company

Issues:

The Applicant, Ms. Seema Rameswharsingh, was injured in an accident on June 20, 2010 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Rameswharsingh, through her representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

Is the Applicant time barred from arbitrating her claim for benefits based on non-compliance with section 281.1(2)(b) of the Insurance Act?
In the alternative, is the Applicant prevented from arbitrating her claim for benefits based on non-compliance with section 55.2 of the Schedule?²
Is either party liable to pay the other party’s expenses in respect of the Preliminary Issue Hearing?

Result:

The Applicant is time barred from arbitrating her claim for benefits based on non-compliance with section 281.1(2)(b) of the Insurance Act.
I have ruled that the Applicant is time barred from arbitrating her claim for benefits. Therefore, ruling on the Applicant’s non-compliance with section 55.2 of the Schedule is not necessary.
Certas is entitled to its expenses in respect of the Preliminary Issue Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant has been represented by Mr. Rotondo from 2011 up to and including this Preliminary Issue Hearing.

As a result of non-compliance with section 44 of the Schedule, specifically the Applicant’s non-attendance at 3 of the 4 assessments, the Insurer notified the Applicant by way of an OCF-9 on July 5, 2011 that her income replacement benefits along with her housekeeping and home maintenance benefits were being terminated. It is important to note the last day for the Applicant to dispute these claims is July 5, 2013.

On or about January 17, 2012, the Applicant submitted an OCF-18 treatment plan for physiotherapy treatment. The Insurer sent a letter to the Applicant requesting the Applicant attend an Insurers Examination with Dr. Henderson on February 17, 2012, which the Applicant attended. After conducting this assessment, Dr. Henderson concluded that this OCF-18 treatment plan was not reasonable or necessary. The Insurer sent a denial letter to the Applicant on March 3, 2012. Therefore, the last day to dispute this claim is March 3, 2014.

On May 18, 2012, the Applicant submitted an Application for Mediation with the issues of income replacement benefits, housekeeping and home maintenance benefits, medical benefits, interest and expenses in dispute.

Mediation took place on March 27, 2013 and a Report of Mediator was issued that same day listing income replacement benefits, housekeeping and home maintenance benefits and the medical benefit of an OCF-18, dated January 17, 2012, in dispute.

ISSUE 1 - TIME LIMITATION

The Applicant applied for mediation on May 18, 2012 and a Report of Mediator was issued on March 27, 2013. These facts are agreed to by both parties.

Section 281.1(2)(b) of the Insurance Act states the following:

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).

Based on the above noted timeline, the final date for the Applicant to file for Arbitration would be June 27, 2013.

The Applicant put forward the position that she submitted her Application for Arbitration on June 18, 2013. The Applicant provided, as part of her submission at this Preliminary Issue Hearing, an Application for Arbitration (Form C) with a date of June 18, 2013 and a photocopy of a cheque that the Applicant claims was submitted with that Form C/Application for Arbitration. According to the Applicant’s submissions, she stated that the June 18, 2013 Application for Arbitration was submitted via regular mail which has no delivery confirmation as opposed to sending an Application to FSCO by fax or registered mail, which does have delivery confirmation. The Applicant failed to provide irrefutable evidence proving that she submitted an Application for Arbitration to FSCO at that time.

According to the Applicant’s submission, the Applicant’s lawyer only determined that the Application for Arbitration may not have been received by FSCO when he did a file review in August 2015 and discovered the Applicant had not received a date for a Pre-Hearing or confirmation that the Application for Arbitration was accepted. At that time, the Applicant’s lawyer realized that the June 18, 2013 Application for Arbitration may not have been received by FSCO. As a result, another Application for Arbitration was submitted by the Applicant on August 20, 2015, and she was notified that her Application for Arbitration of the same date was received.

The Applicant is claiming that her June 18, 2013 Application for Arbitration was misplaced by FSCO. With the lack of evidence submitted by the Applicant to corroborate this theory, I find on the balance probabilities that FSCO did not misplace the Applicant’s June 18, 2013 Application for Arbitration but in fact, the Applicant’s June 18, 2013 Application for Arbitration was never submitted as was claimed by the Applicant. In the unlikely event that FSCO did misplace the Application of June 18, 2013 (and no concrete evidence was submitted to prove this theory), there are other avenues more appropriate for the Applicant to seek remedy.

ISSUE 2 – NON-COMPLIANCE WITH SECTION 55.2

I have ruled that the Applicant is time barred from arbitrating her claim for benefits; therefore, ruling on the Applicant’s non-compliance with section 55.2 of the Schedule is not necessary.

CONCLUSION

As per the Insurance Act, the Applicant’s Application for Arbitration must be filed by the later date of either June 27, 2013 (90 days post mediation) or July 5, 2013 (2 year mark) for disputing income replacement benefits along with housekeeping and home maintenance benefits, and March 3, 2014 (2 year mark) for disputing medical benefits. The date of August 20, 2015, when the Applicant did submit her Application for Arbitration to FSCO, far exceeds the last day in which the Applicant is eligible to file for Arbitration.

When applying the 2 step test for determining a 2 year limitation used in Zeppieri and Royal Insurance Company of Canada (A-005237, February 17, 1994)³ to this Preliminary Issue Hearing, I find the 2 step test confirms that Ms. Rameswharsingh’s case is time barred as per the Insurance Act.

Based on the evidence submitted at this Preliminary Issue Hearing, all denial letters by the Insurer were clear and unequivocal. All denial notifications complied with the threshold established in Smith v. Co-operators General Insurance.⁴ In addition, the Ontario Court of Appeal in the decision of Turner v. State Farm Mutual Automobile Insurance Company stated that as long as the Insurer provides a valid refusal, the limitation period should be strictly applied.⁵ It should be noted that the Applicant had the benefit of having legal representation at the time of denials.

Based on the evidence presented, I find that the Applicant is time barred from submitting an Application for Arbitration. I have concluded the Applicant’s position that she filed the Application for Arbitration on June 18, 2013 instead of August 20, 2015 lacks complete credibility. The Applicant, as per section 281.1(2) of the Insurance Act, did not file an Application for Arbitration within the allowed time frame. Therefore, this Application for Arbitration is dismissed.

EXPENSES:

Certas is entitled to its expenses in respect of the Preliminary Issue Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 16, 2017

Jeff Musson Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

The Applicant is time barred from arbitrating her claim for benefits based on non-compliance with section 281.1(2)(b) of the Insurance Act.
I have ruled that the Applicant is time barred from arbitrating her claim for benefits. Therefore, ruling on the Applicant’s non-compliance with section 55.2 of the Schedule is not necessary.
Certas is entitled to its expenses in respect of the Preliminary Issue Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.