Tribunal File Number: 16-000018/AABS
Case Name: 16-000018 v Echelon General Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J. T.
Applicant
and
Echelon General Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
Order made by: D. Gregory Flude, Vice-Chair
Overview:
1The applicant, J. T., was injured in a motor vehicle accident on October 25, 2013. He sustained injuries to his left wrist. He had previously sustained injuries to his right wrist in earlier motor vehicle accidents. He sought Non-Earner Benefits from his insurance company, Echelon General Insurance Company, under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the Schedule). The Insurance Company denied his claim. He disputes that denial and has applied to the Tribunal for a resolution of that dispute.
2In its response to J. T.’s Application for Dispute Resolution, the Insurance Company raised an issue of the timeliness of J. T.’s application. It took the position that his application was made outside the two year limitation period set out in the Schedule. There were two branches to the Insurance Company’s argument: the effective date of the Insurance Company’s denial was November 22, 2013 and, if the November 22, 2013 was not an effective denial, then the Insurance Company denied J. T.’s claim by letter dated April 8, 2014. Since he did not appeal the denial of his claim until April 8, 2016, regardless of the date of the denial, he was outside the two year limitation period: in the former case by several months and in the latter by one day.
3There have been two case conferences in this matter. At the first, on May 26, 2016, the Tribunal ruled that the November 22, 2013 letter did not start the time running with respect to the two year limitation period. A separate order has been issued with respect to that ruling. On May 26, the Tribunal asked the parties to make written submissions regarding the second date in issue, April 8, 2014. It advised the parties that it would make its ruling at the June 24, 2016 case conference. On June 24, the Tribunal advised the parties, orally, that, based on the written submissions, it held that the two year limitation period expired on the anniversary date of the April 8, 2014 letter, that is, on April 8, 2016, and the the application was made within the two year limitation period. The parties were advised that written reason would follow. These are the written reasons.
Analysis:
4The Insurance Company takes the position that the wording in the regulations requires the appeal to be brought “within two years.” In its interpretation, two years commencing on on April 8, 2014 ends on April 7, 2016. This is analogous to the calendar year commencing on January 1 each year and ending on December 31. The Insurance Company contrasts the regulatory wording in the Schedule with the basic limitation period definition set out in s. 4 of the Limitations Act applicable to actions before the courts. The limitation period for actions before the courts is specifically defined as on the two year anniversary date of the event giving rise to the action. In the Insurance Company’s submission, had the Legislature intended the operative date under the Schedule to be the anniversary date, it would have used specific language to say so.
5J. T. argues that a year is the period of time it takes the Earth to circle the Sun. On this basis, if an event happens at a specific time during the day, then the year does not elapse until that time on the anniversary date. To use the January 1 to December 31 analogy, if New Year’s day did not commence until noon on January 1, then the year would run from noon January 1 one year to noon January 1 the next year, that is, it would expire on the anniversary date. Such an interpretation obviously creates problems of attempting to determine the precise time events happened. J. T. points to court decisions that finesse this difficulty simply by defining the year as ending on the anniversary date.
6The Tribunal is persuaded by J. T.’s argument. The two year limitation period commencing on April 8, 2014 expired at the end of the day on April 8, 2016. The Application was filed in a timely manner.
Date of Issue: June 29, 2016
___________________________
D. Gregory Flude, Vice-Chair