Arthur Sapsworth v. Personal Insurance Company of Canada, 2017 ONFSCDRS 23

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 23

FSCO A14-007107

BETWEEN:

ARTHUR SAPSWORTH

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: David Snider

Heard: January 11, 2017, in Collingwood, Ontario.

Appearances: Mr. Sapsworth represented himself

Alana Daley for Personal Insurance Company of Canada

Issues:

The Applicant, Arthur Sapsworth, was injured in a motor vehicle accident on January 29, 2010. He applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal terminated/denied various benefits in 2011 and, at the latest, on March 15, 2012. The parties were unable to resolve their disputes through mediation and the subsequent failed Report of Mediator was dated September 4, 2013. Mr. Sapsworth applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended on August 28, 2014.

The preliminary issue is:

Is Mr. Sapsworth precluded from proceeding to arbitration because his application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Act and subsection 51(1) of the Schedule?

Result:

Mr. Sapsworth is precluded from proceeding to arbitration because his application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Act and subsection 51(1) of the Schedule.

EVIDENCE AND ANALYSIS:

The facts in this matter are quite simple. Mr. Sapsworth was involved in a pedestrian-motor vehicle accident on January 29, 2010. He applied for certain benefits and eventually received denials of Housekeeping/Home Maintenance benefits on July 8, 2011 and subsequently denials of four medical treatment plans, with the final denial being delivered to him on March 15, 2012.

Early on in the process Mr. Sapsworth retained counsel and an Application for Mediation pertaining to these denials was filed with the Financial Services Commission of Ontario (FSCO) by that firm. The mediation was held in September 2013 and the resulting Report of Mediator was dated September 4, 2013 and issued to Mr. Sapsworth’s then-counsel on September 5, 2013 by email. At the oral hearing of this preliminary issue Mr. Sapsworth orally claimed not to ever have received this Report, but documentation provided by the Insurer in its written submissions (Mr. Sapsworth chose not to file any written submissions or evidentiary materials) showed that he had personally filed the Application for Arbitration with FSCO on August 28, 2014 and had included with that submitted application a copy of the Report of Mediator dated September 4, 2013. Mr. Sapsworth had, at some point prior to the submission of the Application for Arbitration, terminated his relationship with the law firm which had represented him in the mediation process and chose not to retain any new representative.

Mr. Sapsworth had no explanation of how or when he had received his copy of the Report of Mediator and in the absence of any evidence to the contrary I must deem him to have received that Report when his then-counsel received it on September 5, 2013. The insurer provided evidence by affidavit that the ADR Chambers, which handled the mediation and issued the Report of Mediator, had confirmation in its email records that Mr. Sapsworth’s counsel of record had received the copy of that Report of Mediator in the normal fashion when it was sent out to them on September 5, 2013. This, then, settles any doubt in my mind that Mr. Sapsworth effectively received his copy of the Report of Mediator in a timely manner.

I was not provided any evidence or argument by Mr. Sapsworth suggesting or asserting that there was any defect in any of the denials issued by the Insurer herein. The insurer, for its part, provided evidence by way of sworn affidavit which demonstrated to my satisfaction that the denials were clear and unequivocal and that they took the proper form and wording complying with customary practice followed by Ontario insurers with regard to the Schedule. I must conclude, therefore, that the denials were clear and unequivocal and hence that the two year limitation periods applicable to each respective denial commenced on the specified denial dates and were not open to question as to their effectiveness.

Turning to the first limitation concern herein, namely the two year limitation set out both by s.281.1(1) of The Insurance Act (as it stood on the date of Mr. Sapsworth’s MVA – January 29, 2010) and by s.56 of the Statutory Accident Benefit Schedule, I find that Mr. Sapsworth clearly missed the limitation period by a sizeable margin. The Application for Arbitration was filed with FSCO by Mr. Sapsworth on August 28, 2014. This was, at a minimum, 2 years, 5 months and 14 days after the most recent denial of benefits and ranged up to as much as 3 years, 2 months and 4 days after the first denial of benefits. Clearly, these all exceed the two year maximum period allowed for filing an Application for Arbitration.

There is an additional limitation period set out both by s.281.1(2) of The Insurance Act (as it stood on the date of Mr. Sapsworth’s MVA – January 29, 2010) and by s.11.2 of the Dispute Resolution Practice Code which permits an Application for Arbitration to be filed within 90 days of the issuance of the Report of Mediator. Again, Mr. Sapsworth clearly missed this 90 day window which may have given him some extra opportunity to get his Application for Arbitration filed in a timely manner. As found above, the Report of Mediator is deemed to have been received by him on September 5, 2013. Adding 90 days to this date would have allowed him to file his Application for Arbitration on or before December 4, 2013 or perhaps shortly thereafter. However, as has been found above, Mr. Sapsworth did not file his Application for Arbitration until August 28, 2014. That is about 9.5 months later.

Accordingly, I find that Mr. Sapsworth failed entirely to meet the legally-required time limitation period(s) pertaining to the Application for Arbitration he filed with regard to the matter before me. I have no authority or jurisdiction to extend those time limits and therefore I must dismiss this Application for Arbitration in its entirety and order that this file be closed.

EXPENSES:

I find that Mr. Sapsworth is not entitled to any expenses with regard to this arbitration. As well, the insurer, The Personal Insurance Company, expressly chose to waive its claim for expenses in this matter. Accordingly there are no expenses to be ordered and each side shall bear the costs of their own carriage of the matter.

January 31, 2017

David Snider

Arbitrator

Date