Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 26

FSCO A14-005391 and A14-009047

BETWEEN:

DHARAM SIDHU Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers on October 24, 2016 and by written submissions due November 25, 2016

Appearances: Mr. Kevin Doan for Mr. Dharam Sidhu Mr. Robert Rogers and Ms. Cara Boddy for Aviva Canada Inc.

Issues:

The Applicant, Mr. Dharam Sidhu, was injured in a motor vehicle accident on August 4, 1990 ("1990 accident") and in 2014, sought accident benefits in the nature of weekly income replacement benefits, interest and expenses from Aviva Canada Inc. ("Aviva").¹ The parties were unable to resolve their disputes through Mediation, and the Applicant, through his 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 ("Insurance Act") (FSCO A14-005391).

The Applicant was also injured in a motor vehicle accident on January 19, 1996 ("1996 accident") and in 2014, sought accident benefits in the nature of weekly income replacement benefits, weekly loss of earning capacity benefits, supplementary medical expenses and a special award from Aviva. The parties were unable to resolve their disputes through Mediation, and the Applicant, through his representative, applied for Arbitration at FSCO under the Insurance Act (FSCO A14-009047). The two Arbitrations are treated as related files heard together.

At a Pre-Hearing, Arbitrator Parish ordered that three preliminary issues with respect to the 1990 accident and two preliminary issues with respect to the 1996 accident be determined together by a Hearing by written submissions and oral submissions made on October 24, 2016, as the same parties were involved in both files.

One of the issues to be heard with respect to the 1990 accident was whether or not the Applicant was required to return the money paid to him by Aviva as part of a settlement of his statutory accident benefits claim in 2003. The money has been returned and the issue therefore does not have to be determined. Aviva takes the position that the repayment is relevant to the remaining issues.

The parties advised that one of the issues with respect to the 1996 accident, relating to medical benefits, need not be addressed in this Preliminary Issue Hearing.

The Hearing proceeded on the basis of Affidavit evidence of the Applicant and of Elizabeth Thomson, a Health Care Claims Analyst employed by Aviva, with respect to each of the two Applications for Arbitration. Both were cross-examined on their Affidavits and I was provided with the transcripts of those cross-examinations.

The issues in this Preliminary Issue Hearing are:

For the 1990 accident:

1. Should Arbitration proceed, as the Applicant signed a Full and Final Release ("FFR") on December 2, 2003?

2. Should the Applicant's claim for entitlement to income replacement benefits be time-barred, as this benefit was stopped by Aviva on July 30, 1993?

For the 1996 accident:

1. Should the Applicant's claim for entitlement to income replacement benefits be time-barred, as this benefit was stopped by Aviva on August 19, 1996?

For both accidents:

1. Is either party entitled to its expenses of the Preliminary Issue Hearing?

Result:

For the 1990 accident:

1. The Arbitration should not proceed as the Applicant signed a FFR on December 2, 2003.

2. Given the answer to issue 1, it is not necessary to answer whether or not the Applicant's claim for entitlement to the income replacement benefits is time-barred, as this benefit was stopped by Aviva on July 30, 1993.

For the 1996 accident:

1. The Applicant's claim for entitlement to income replacement benefits is not time-barred.

For both accidents:

1. For the 1990 accident, 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. For the 1996 accident, I defer the issue of expenses of this Preliminary Issue Hearing to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Both parties filed extensive written submissions and case briefs with respect to the issues in this matter, and, when a new decision was issued by the Director's Delegate on Appeal concerning whether or not an application was time-barred, the submissions were reopened so that both parties could make further submissions on the new Appeal decision. The cases canvassed extensively the requirements to be met by Insurers and the underlying policy and legislative provisions requiring Insurers to provide clear and unequivocal disclosure of the rights of an insured person to pursue remedies if he disagrees with the Insurer's position on his benefits claim and, in the event of a settlement, the interpretation of the statutory provisions with respect to settlements of accident benefit claims, the right to rescind from such a settlement and applicability of that regime in the context of settlements in court proceedings.

I also note that the Applicant has been represented by a series of lawyers throughout the proceedings set out in the chronologies below.

1990 Accident Chronology

At the time of the 1990 accident, the Applicant was insured by The General Accident Assurance Company of Canada, a company that has since been subsumed by Aviva.² Aviva has not been able to locate the file on this claim for 1990 to 1992 and has only a portion of what is assumed to be the documents for 1993, but Aviva agrees, for the purposes of this Preliminary Issue Hearing, that an application for accident benefits was properly made by the Applicant under the legislative scheme in effect at the date of the accident.³ The claim was adjusted over the next three years with benefits being paid to the Applicant including weekly loss of earning capacity benefits.⁴

Aviva obtained an accountant's report to calculate the weekly benefits payable and paid $29,714.23 to the Applicant.⁵ The benefits were stopped by letter, dated July 30, 1993, effective August 4, 1993, supported by an "Assessment of Claim by Insurer" form.⁶

An Application for Mediation disputing the quantum of the weekly income replacement benefit was filed by the Applicant's lawyer with FSCO's predecessor on behalf of the Applicant in 1993, prior to the termination of the benefits. The Mediation failed and no Application for Arbitration was filed by the Applicant. The Report of Mediator, attached to the Application for Arbitration filed in 2014 in this matter, was issued June 4, 1993. It documents the Mediation being conducted between March 18, 1993 and May 28, 1993.⁷

An action in the Ontario Court (General Division) was instituted (Court File No. 95-CV-86319) on June 22, 1995 by the Applicant's legal counsel within two years of the termination of the income replacement benefit.⁸ In the litigation, the Applicant claimed "disability benefits" against Aviva. The Applicant alleged in his Statement of Claim that he was no longer able to maintain his occupation as a limousine driver as a result of the accident and that he received benefits for the period August 4, 1990 to August 4, 1993. He then returned to work part-time. He identified pre-existing asymptomatic conditions now made symptomatic as a result of the injuries sustained in the accident, in addition to the back injuries suffered in the accident. He claimed benefits "as the injury continuously prevented the Plaintiff [Applicant] from engaging in the occupation and employment for which he is reasonably suited by education, training and experience."⁹

The action was dismissed on consent without costs on December 1, 2003,¹⁰ following an exchange of emails between the Applicant's lawyer at the time and the lawyer representing Aviva. In a letter contained in the email, dated September 29, 2003, from the lawyer for Aviva to the Applicant's lawyer, Aviva's lawyer asks for confirmation "that we have a settlement at $12,500 all-inclusive in exchange for a release of all SABS claims and a dismissal of the action?" The email in response from the Applicant's lawyer, dated October 8, 2003, stated:

Further to my voice-mail message, I confirm settlement as set out in your letter. I await receipt of the appropriate Releases for execution, and you have my consent to obtain an Order dismissing the action on a without costs basis.¹¹

After the Court Order had been issued, a FFR was signed December 2, 2003.¹² In the FFR, the Applicant specifically released Aviva from "all actions, causes of actions, damages, claims and demands whatsoever which I ever had, now have or which I… may have with respect to any past or future claims under Parts I through VIII of The Statutory Accident Benefits Schedule – Accidents before January 1, 1994 against Aviva", claims against Aviva by reason of the insurance policy and claims arising out of the accident. The FFR also included the Applicant's representation and warranty that he had been provided with the disclosure with respect to the settlement required under the regulations under the Insurance Act in both paragraphs 5 and 6 of that warranty. He confirmed that the FFR was a release whether claims "are known or not yet ascertained at the present time." His solicitor declared that he had fully explained the FFR and that the client understood the FFR and the legal effect. Attached was a Settlement Disclosure Notice ("SDN") in a form which apparently was approved by the Superintendent of Insurance for accidents between June 22, 1990 and December 31, 1993 and it is noted on its face as "Form SDN-68 (02/02)".

In 2005, the Applicant's lawyer at that time instituted an action in the Ontario Superior Court of Justice alleging negligence on the part of two lawyers. With respect to the lawyer who represented him on the 1990 accident, the Applicant alleged that the lawyer "failed or neglected to dispute the quantum of weekly disability benefits in respect to those benefits paid or part of [the lawyer], [the Applicant] was deprived of his entitled (sic) to claim such additional statutory accident benefits…and was deprived of the opportunity to dispute the quantum of his weekly disability benefits."¹³

In February 2014, the Applicant's counsel, Mr. Doan, purported to rescind the 2003 settlement with Aviva and expressed his intent to claim "IRBs" for the period of August 11, 1990 to date and ongoing.¹⁴ In June, a new solicitor's negligence action was commenced against the lawyers who represented the Applicant at the time he executed the release of Aviva in 2003.¹⁵ Also in June 2014, the Applicant filed with FSCO an Application for Arbitration with respect to his dispute for weekly income benefits under the Schedule, claiming $600.00 per week, which was the maximum permitted under the OMPP SABS¹⁶ in place at the time of the accident, relying on the 1993 Report of Mediator referred to above.¹⁷

1996 Accident Chronology

The Applicant applied for accident benefits for the 1996 accident on March 4, 1996 under the Statutory Accident Benefits Schedule – Accident after December 31, 1993 and Before November 1, 1996 ("Bill 164 SABS").¹⁸

The Applicant was paid income replacement benefits based on a Disability Certificate submitted by the Applicant's family physician, Dr. Fred Hui.¹⁹ By letter, dated May 1, 1996, Aviva notified the Applicant that it intended to terminate benefits.²⁰ The Applicant exercised his right to request the Designated Assessment Centre Assessment ("DAC Assessment") in accordance with the Bill 164 SABS. Aviva then sent him the Explanation of Assessment on August 19, 1996, indicating that the DAC Assessment had concluded that he was not disabled from his previous employment or activities of daily living.²¹

Further contact with the Applicant is documented in a letter, dated September 19, 1996,²² referring to two conversations that day with the Insurer's staff. The letter purports to make clear the position already explained; that he was not entitled to further benefits. The last three paragraphs of the letter are:

We now consider this matter closed, (sic) should you wish to pursue it further, we recommend that you do so through the proper channel, that being Mediation.

Once again, we enclose a copy of Section 64 of the Statutory Accident Benefits Schedule for your reference. We have highlighted the relevant portions for your perusal.

If you have any questions or concerns, please do not hesitate to contact the undersigned directly.

An Application for Mediation was brought on June 10, 2014, some 18 years after the accident. So far as Aviva knows, no previous Application for Mediation against Aviva was ever brought with respect to the 1996 accident.²³ The Application for Arbitration was filed October 2, 2014.²⁴ Aviva heard nothing from the Applicant since 1996 until these proceedings were commenced.²⁵

ANALYSIS

The 1990 accident (FSCO A14-005391):

Issue 1 - Should Arbitration proceed as the Applicant signed a Full and Final Release on December 2, 2003?

The Applicant is attempting to rescind the settlement that he entered into in December 2003. There were two components to that settlement, the first being an Order dismissing the action and the second being the FFR which references the Schedule and sets out releases from the accident benefits entitlements, rights under the insurance policy and claims due to the accident.

The right to rescind a settlement of accident benefits is found in the Settlement Regulation,²⁶ which provides in section 9.1(1) that a settlement means "an agreement between an insurer and an insured person that finally disposes of a claim or dispute in respect of the insured person's entitlement to one or more benefits…" The Settlement Regulation provides that an Insured may rescind the settlement if the Insurer has not complied with subsections 2 and 3 of section 9.1. The allegation here is that Aviva did not comply with those subsections.

Aviva submits that its non-compliance with the subsections, if it did not comply, is irrelevant because the settlement was done in the court action and did not deal only with the no-fault benefits.

Aviva submits that the Court of Appeal has clearly established in Walker v. Allstate Insurance Company²⁷ that section 9.1 does not apply to settlements that occur after a court action has been commenced. This decision clarified the finding of the Court of Appeal in Igbokwe v. HB Group Insurance Management.²⁸

Igbokwe was a 2001 decision of the Court of Appeal on a Motion under Rule 49.09 of the Rules of Civil Procedure by the Insurer to enforce a settlement in a civil action that included recovery of accident benefits as well as tort remedies. The exchange of correspondence in which the offer of settlement was made and accepted was brief and did not include a notice under s. 9.1 of the Settlement Regulation. The Court of Appeal held that there was a proper Rule 49 offer made and accepted. The plaintiff, Igbokwe, argued that the failure to comply with s. 9.1 invalidated any settlement. The Court of Appeal rejected the argument and endorsed the reasoning of Jennings J. in the case of Kibalian v. Wellington Insurance Company,²⁹ which had been overturned by the Divisional Court. The Court of Appeal confirmed Jennings J.'s reasoning that s. 9.1 of the Settlement Regulation and Rule 49 cannot work in tandem was essentially correct and the Court of Appeal held that, once litigation is commenced, s. 279 of the Insurance Act and s. 9.1 of the Settlement Regulation cease to have any effect.

Aviva submits that the facts of Walker are similar to the facts of this case, the essential elements being a negotiated settlement, a Release and SDN provided by the Insurer and signed by the Insured, and consent to the action being dismissed. The allegation in Walker, as here, was that the SDN was non-compliant and an application was brought for a declaration that the settlement agreement had been rescinded. The Court of Appeal held that the right to rescind contained in the Settlement Regulation did not apply in these circumstances.

Aviva also refers to the decision of the Superior Court in Melson v. Farmers Mutual Insurance Company³⁰ in which a settlement was negotiated but the release and the SDN were not signed. An application to enforce the settlement was brought and the Court found that there was a binding settlement, that the Insurer was not required to extend to the plaintiff a cooling off period and the fact that a Settlement Dispute Notice had been forwarded did not change the outcome.

The most recent case in this line is Chauvette v. Massey,³¹ a 2013 decision of the Superior Court considering Igbokwe and another case, Phillips v. CGU Insurance Management Ltd.³² In the Chauvette case, there were parallel proceedings instituted by the Insured at FSCO and in the courts. The FSCO mediation was adjourned while the parties negotiated the court case. The court case settled all issues and the Mediation was cancelled when FSCO was advised that the case had resolved. A Report of Mediator confirming the settlement was issued by FSCO. The Release and a SDN that were forwarded by the insurer were not signed as the insured objected to some of the content of the SDN. The issue in Chauvette was whether or not a settlement had been reached such that the Settlement Regulation, s. 9.1(5), applied to permit a two day cooling off period and whether or not the settlement during litigation meant that the Settlement Regulation did not apply.

The Court held:

The most important factor to consider is the purpose of section 9.1 and the settlement disclosure notice. As the Court of Appeal stated in Igbokwe, the notice is designed to protect self-represented parties, not parties who have counsel. A party who has counsel, such as the plaintiff in this matter, does not require a two day cooling off period in which he or she can rescind acceptance of an offer. The plaintiff accepted the offer on the advice of counsel. Although the defendants sent the notice along with the settlement documents, it was not necessary. While the court in Phillips determined that once the notice was sent, the defendant was "stuck with it", the Court of Appeal's reasoning in Igbokwe prevails.³³

I note that the decision of the Court of Appeal in Igbokwe was the subject of a leave to Appeal the application to the Supreme Court of Canada that was unsuccessful.³⁴

I agree with Aviva that there is sufficient similarity between this case and those cited by Aviva that the principles in Igbokwe and Walker should apply to the facts of this case. The Applicant who signed the FFR should not be permitted to escape the consequences of its terms. The Melson and Chauvette decisions provide further support that this outcome is consistent with the policy intent of the legislation.

The Applicant submits that the court proceedings are irrelevant and that any notice submitted must comply with the Settlement Regulation. He relies on a line of cases including Amyotte v. Wawanesa Mutual Insurance Company,³⁵ where the Divisional Court held in 2013 that s. 9.1 continues to apply to all settlements except those negotiated within the context of a true Rule 49 offer. The Divisional Court was not referred to the Walker decision in arriving at this decision. The Applicant also relies on the Phillips decision referred to above in which the Superior Court held that if a SDN was presented in the context of a civil action, then the Insurer was stuck with the cooling off period and the right to rescind. In that case, unlike the present, there had been a breakdown of the relationship between the Insured and his lawyer and there was evidence that the Insured had been unaware of the settlement. The Chauvette decision distinguishes the Phillips case and Phillips cannot be determinative of the outcome here. Neither can Amyotte which runs counter to Walker and Igbokwe.

The Applicant argues that the Igbokwe decision was decided under the law before the amendments, effective March 1, 2002, which added to the Settlement Regulation the two day cooling off period, the requirement on the Insurer to comply with subsections (2) and (3) of s. 9.1 of the Regulation, the exemption of court approved settlements with respect to persons with disabilities, and the amendment to subsection 11 to reference the bringing of court proceedings including the commencement of examinations for discovery.³⁶ The Applicant submits that these amendments indicated that the Settlement Regulation applies to all Arbitration and litigation proceedings. I disagree. It was open to the legislature to make that specific change to explicitly overrule the line of cases in the Court of Appeal. It did not do so.

I am also not persuaded by the Applicant's argument that the Igbokwe and Walker cases were not decided in the context of interpretive principles applicable to consumer protection legislation. The Court of Appeal in Igbokwe and Walker is clearly concerned with the policy underpinning of the accident benefits system. The Court of Appeal in Igbokwe, for instance, affirms at paragraphs 20 and 23 the intent to protect the right of an insured person to obtain information. Further, in the same decision in paragraph 15, the Court of Appeal referred to the decision of Jennings J. in Kibalian.³⁷ and the references there to legislative purpose and the distinction between litigation and accident benefits dispute resolution.

I am not persuaded by the cases submitted by the Applicant that Igbokwe and Walker are distinguishable from this case or are no longer good law. As decisions of the Court of Appeal, they are binding on me.

Therefore, I find that the FFR signed by the Applicant in the civil litigation commenced by his lawyer bars him from proceeding with the Application for Arbitration in this matter.

Issue 2 - Should the Applicant's claim for entitlement to the income replacement benefits be time-barred, as this benefit was stopped by Aviva on July 30, 1993?

The essence of Aviva's position on the Applicant's entitlement is that the Applicant only mediated the issue of the quantum of benefits, not the entitlement to benefits. The Mediation of the quantum issue makes sense at the time it was instituted as an effort by the Applicant to rectify a failure by Aviva to calculate properly the income benefits he was entitled to receive. It was after the Mediation that the benefits were denied and the DAC Assessment found that the Applicant did not meet the statutory entitlements. No Mediation was applied for from this denial. The next step was the litigation.

Since I have found that the whole Application for Arbitration brought in 2014 is barred by virtue of the FFR of all claims, including entitlement to income replacement benefits, this issue need not be answered.

The 1996 accident (FSCO A14-009047):

Issue 3 - Should the Applicant's claim for entitlement to income replacement benefits be time-barred, as this benefit was stopped by Aviva on August 19, 1996?

The Applicant's claim is not time-barred.

The limitation period to go to Mediation is two years from the date of denial of the benefits.³⁸ Therefore the claim period expired on September 19, 1998.

The mechanism that the courts have recognized to relieve the Applicant of this limitation period is if the termination of benefits was not clear and unequivocal. The benefit being claimed was income replacement. Aviva had paid the benefit to the Applicant until it terminated the benefit. The Applicant would have noticed that the money stopped coming from Aviva, unlike those situations where the benefit claim is for medical benefits, for instance, paid to third party providers.

This issue must be determined in accordance with the Bill 164 SABS and therefore it must meet the test in Smith and Co-operators General Insurance Company³⁹ interpreting s. 71 of the Bill 164 SABS, which provided:

If an insurer refuses to pay a benefit that a person has applied for under this Regulation or reduces the amount of a benefit that a person received under this Regulation, the insurer shall inform the person in writing of the procedure for resolving disputes relating to benefits under sections 279 to 284 of the Insurance Act.

The case law citied by the parties clearly establishes that the onus is on the Insurer to show that it met the requirements of this section which are:

• To inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person, including a description of the most important points of the process, such as the right to seek mediation, and the right to arbitrate or litigate if mediation fails,
• To inform the person that mediation must be attempted before resorting to arbitration or litigation, and
• To inform the person of the relevant time limits that govern the entire process.

Aviva relies on a line of cases in which the two year limitation has been enforced against Applicants despite defects in the information provided by the Insurer. In Golic v. ING Insurance Company of Canada,⁴⁰ the Court of Appeal in 2009 concluded that the Insurer was entitled to the protection of the limitation period where a layman's explanation of the statutory provisions was not provided. The Insurer's letter denying the benefits explained that the Insured was entitled to dispute the decision by applying for Mediation and, if necessary, taking other steps subsequent to Mediation pursuant to ss. 279 to 283 of the Insurance Act. Further, the Insured was told to contact his counsel for further information or guidance or in the event he had no counsel, to contact the insurer. Several years later, the Insured commenced proceedings which the Court held could not proceed because of the limitation period.

I conclude based on the documentary evidence in this case that the Applicant was informed in language directed towards an unsophisticated person of his right to seek Mediation. In my view, "unsophisticated" does not mean illiterate or other than ordinary and reasonable. Legislation can, however, be difficult for an unsophisticated person to understand and apply without assistance, especially the interplay between one or more sections and subsections. Discerning the subsequent steps required to enforce one's entitlements can be challenging. The requirement to explain in straightforward and clear language is intended to address this issue. Justice Gonthier in Smith v. Co-operators expressed doubt that simply attaching the legislation was sufficient. The Court of Appeal in Golic relied on enforcing the limitation period on the more extensive language contained in the letter sent by the Insurer as compared to the letter sent in the Smith v. Co-operators case to distinguish the Golic facts.

The May 1, 1996 letter of intent to terminate was clear and unequivocal in describing the next step in the process, the DAC Assessment, and the Applicant exercised his rights set out in the letter. In addition, the Explanation of Assessment,⁴¹ issued after the DAC Assessment, specifically states that if the application cannot be settled to the satisfaction of the Insured, the Insured "has the right to ask for mediation…" and gives the phone number for contacting the Ontario Insurance Commission.

The Applicant contacted Aviva's staff and the conversations are referenced in the letter of September 19, 1996. Other than the reference to section 64 contained in that letter and the portions of the legislation that were attached to the May 1, 1996 letter, there is no straightforward and clear statement in the documents produced within this record. The documentation needed to state the following: the time limits on the Applicant's exercising of his rights, his rights should Mediation fail, or the prerequisite that Mediation occur before further steps can be taken. The wording of the letter in this case is much more consistent with the wording in the Smith v. Co-operators case, than the letter in the Golic case. I note also that while it is agreed that the Applicant had legal representation throughout, the September 19, 1996 letter from Aviva clearly states that it was the Applicant who made the two calls to Aviva, not his representative.

I have no doubt on the evidence that an ordinary reasonable person with the accident history and access to legal advice of this Applicant could have concluded that, if he had a genuine dispute with the DAC Assessment and the denial of benefits, he had to take some steps, at least to Mediation. But how much more depth there was to his knowledge is pure speculation. The Insurer in the Golic decision wrote a much more extensive description of process and referred to the Insured's previous history of participating in two Mediations under the Insurance Act. The letter in Golic also referred to the sections of the Insurance Act and the steps in the event the Mediation failed.

While I recognize the concern that an Insured might undermine the consumer protection principles of the legislation by not pursuing his or her rights promptly, limitation provisions should be strictly construed, and a layman's language notice of the limitation period in which to bring his claim and the process following the Mediation open to him was specifically absent in the documentation provided to this Applicant. I distinguish this case from Golic on the basis of the contents of the notices and correspondence.

Therefore, I find that Aviva failed to establish that it met the requirements set out in Smith v. Co-operators of setting out in straightforward and clear language either the time limits or the process available to the Applicant.

EXPENSES:

The parties have had mixed success. The Applicant's proceedings for the 1990 accident are at an end as a result of this decision, but the Arbitration for the 1996 accident can proceed. Since written submissions were presented separately in each of the two files, a party claiming expenses should be able to differentiate the time spent and expenses related to each file. There was overlap concerning the case law that applied to the two matters but that should not present an insoluble difficulty.

For the 1990 accident, 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. I remind the parties that the Code specifically provides that the parties have 30 days to bring such a request.

For the 1996 accident, I defer the issue of expenses to the Hearing Arbitrator.

February 3, 2017

Lynda Tanaka Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 26

FSCO A14-005391 and A14-009047

BETWEEN:

DHARAM SIDHU Applicant

and

AVIVA CANADA INC. Insurer

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:

For the 1990 accident:

1. The Arbitration should not proceed as the Applicant signed a Full and Final Release on December 2, 2003.

2. Given the answer to issue 1, it is not necessary to answer whether or not the Applicant's claim for entitlement to the income replacement benefits is time-barred, as this benefit was stopped by Aviva on July 30, 1993.

For the 1996 accident:

3. The Applicant's claim for entitlement to income replacement benefits is not time-barred.

For both accidents:

4. For the 1990 accident, 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. For the 1996 accident, I defer the issue of expenses of this Preliminary Issue Hearing to the Hearing Arbitrator.

February 3, 2017

Lynda Tanaka Arbitrator

STATUTORY ACCIDENT BENEFITS The Statutory Accident Benefits Schedule – Accidents before January 1, 1994 FULL AND FINAL RELEASE

Footnotes

1. 1Full details of the relevant accident benefits regime is provided in detail under "Chronology" in this decision.
2. 2The Insurer will be referred to as "Aviva" throughout this decision.
3. 3The Statutory Accident Benefits Schedule – Accidents before January 1, 1994 ("OMPP SABS").
4. 4The Applicant has not agreed for the purposes of this Motion that he received these benefits but Aviva has produced an assessment of the claim form that terminated those benefits (Tab 1, Document Brief of the Respondent in Relation to the Preliminary Issues Hearing ("Aviva's Document Brief")). In addition, the Applicant asserts those benefits were paid in the court proceedings.
5. 5Affidavit of Elizabeth Thomson, sworn November 19, 2015 ("Thomson Affidavit #1), paras. 11 and 17.
6. 6Aviva's Document Brief, Tab 1.
7. 7Thomson Affidavit #1, paras. 12 and 16.
8. 8Ibid., para. 19, Exhibit I.
9. 9Ibid., Exhibit I, at paras. 2, 5 to 8, and 10 to 12.
10. 10Order of the Superior Court of Justice Court File 95-CV-86319, Tab 5, Aviva's Document Brief.
11. 11Aviva's Document Brief, Tab 3, Emails dated September 29, 2003 and October 8, 2003.
12. 12Ibid., Tab 4. While it is not possible to reproduce the precise font and size of the print on the information I have, the document was headed as follows:
13. 13Ibid., at para. 14.
14. 14Letter from Carranza LLP to Aviva Canada, February 5, 2014, Aviva's Document Brief, Tab 7.
15. 15Statement of Claim, Ontario Superior Court of Justice File CU-14-0506384, Aviva's Document Brief, Tab 8.
16. 16Supra, footnote 2
17. 17Exhibit H to the Thomson Affidavit #1, para. 16.
18. 18O. Reg. 776/93 as amended, Affidavit of Elizabeth Thomson, sworn November 19, 2015 ("Thomson Affidavit ,1996 Accident"), para. 4.
19. 19Ibid., para. 6, Exhibit B.
20. 20Ibid., Exhibit D.
21. 21Ibid., para. 10, Exhibit F.
22. 22Ibid., Exhibit G.
23. 23Thomson Affidavit #1, para 15.
24. 24Thomson Affidavit, 1996 accident, Tabs H and J.
25. 25Thomson Affidavit, 1996 accident, para. 12.
26. 26R.R.O. 1990, Reg. 664.
27. 272002 CarswellOnt 1820.
28. 28(2001), 2001 CanLII 3804 (ON CA), 55 O.R. (3rd) 313 (Ont. C.A.).
29. 29[2002] O.J. No. 689
30. 302010 ONSC 1951.
31. 312013 ONSC 4146, 2013 CarswellOnt 8474.
32. 322004 CanLII 7056 (ON SC), 2004 CarswellOnt 3357, [2004] O.J. No. 3429.
33. 33Ibid., at para. 12.
34. 34[2001] S.C.C.A. No. 470.
35. 352013 ONSC 4361.
36. 36O. Reg. 483/01.
37. 37[2000] O.J. No. 1869, paras. 14-20.
38. 38Section 281(1), Insurance Act.
39. 39Smith v. Co-operators General Insurance Company, 2002 SCC 30.
40. 402009 ONCA 836.
41. 41Exhibit F, Thomson Affidavit, 1996 accident.