Tribunal File Number: 16-001691/AABS
Case Name: 16-001691 v State Farm Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
The Applicant By his Litigation Guardian
Applicant
and
State Farm Insurance
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude
APPEARANCES:
For the Applicant: Lucy Lee, Counsel
For the Respondent: Ashley Lepine, Counsel
HEARD: Written Hearing: July 13, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in a motor vehicle accident on April 16, 2009. He applied for and was paid an income replacement benefit by the respondent until June 18, 2014 pursuant to the provisions of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “Schedule”).1 On June 12, 2014 the respondent stopped the benefit effective June 18, 2014 following the findings of medical examinations on May 1, 5, and 6, 2014 on behalf of the respondent that determined the applicant was not, as a result of the accident, suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.2 The applicant disputed the respondent’s decision to terminate benefits, initially through the mediation process at the Financial Services Commission of Ontario (“FSCO”) and, after FSCO’s jurisdiction in these matters transferred to this Tribunal, to this Tribunal.
2There is a two year limitation period for the commencement of proceedings under the Schedule.3 The respondent takes the position that the applicant applied to this Tribunal for dispute resolution beyond the two year limitation period and that his appeal should be dismissed as being initiated too late. The applicant submits that he has been found not competent to manage his property and his sister has been appointed by the courts as the guardian of his affairs. In the applicant’s view, mental incapacity stays the limitation period until a guardian is appointed and, therefore, his application was made in a timely manner.
3Having considered the evidence and submissions of the parties, I find that there is insufficient evidence to establish the date of the onset of the applicant’s mental incapacity. In fact, I must conclude that counsel for the applicant determined that he, the applicant, had sufficient capacity to provide instructions when she filed the appeal on his behalf on July 29, 2017. I find that the application was filed after the expiry of the limitation period and the applicant is barred from proceeding with it.
ANALYSIS
4The starting point for my analysis is the chronology of events. There is no dispute about the timing of major procedural steps. In the affidavit of William Brennan, a lawyer in the offices of the applicant’s counsel, the applicant has provided a fuller background of events not within the knowledge of the respondent. The respondent has not questioned those events so I will rely on that affidavit to provide a fuller chronology.
5In its submissions, the respondent addresses the adequacy of the denial notice. It submits that the denial notice is clear and unequivocal and informs the applicant of his rights of appeal in accordance with the Supreme Court of Canada decision in Smith v. Co-Operators General Insurance Co. 2002 SCC 30, 2002 S.C.C. 30, 2 S.C.R. 129. The applicant did not raise the issue of the adequacy of notice in its submissions so I take it that this point is conceded. I will not address it further except to state that on the evidence before me, I would have found the notice adequate.
6In its submissions, the respondent sets out a chart of events. I have enhanced the chart from other evidentiary sources and I find the chronology is as follows:
- The respondent sent a denial letter to the applicant dated June 12, 2014.
- I allow five days for delivery of the letter making the effective date of denial June 17, 2014, not June 12 as set out in the table.
- Two years from the date of denial is June 17, 2016.
- The applicant applied for mediation at FSCO on November 30, 2015.
- The mediator issued a report on April 8, 2016 indicating that the mediation had failed.
- Allowing five days for delivery of the report, the effective date of receipt was April 13, 2016.
- 90 days from the receipt of the mediator’s report is July 13, 2016.4
- The applicant filed for dispute resolution with the Tribunal on July 29, 2016.
- On December 7, 2016, the applicant was found to be incapable of instructing counsel and managing his property following a capacity assessment by E. Lindenburgher, a Designated Capacity Assessor (referred to as Dr. Lindenburgher in the applicant’s submissions).
- On April 4, 2017, the Superior Court appointed the applicant’s sister as his guardian for property.
7Mr. Brennan’s affidavit provides some further background. He states that the applicant had been incarcerated and in a drug rehabilitation program until February 25, 2016. On his release he was in regular communication with his legal advisors about his accident benefits claim. Over the summer of 2016, commencing in April, he became more and more difficult to contact. In June, when he did call counsel, it was to look for money. He missed appointments. His telephone number changed and contact usually had to be initiated through others, particularly his sister. In November 2016, the applicant’s counsel, Ms Lee, became concerned about his mental capacity and arranged for an assessment.
8While Mr. Brennan paints a picture of a steady decline in the applicant’s behaviour and capacity from his release in late February through the capacity assessment in November and December, he provides no detailed information whatsoever about the critical period of time in mid to late July, 2016 when the limitation period was about to expire and counsel filed the application to the Tribunal. It is clear that counsel managed to get in touch with the applicant at some point during that period and was satisfied that he had the capacity to instruct her to commence an application to this Tribunal, for that is what she did. Mr. Brennan identifies November 2016 as the time when Ms Lee first formed a belief that the applicant had lost the capacity to properly instruct her; four months after the expiry of the limitation period.
9In light of the foregoing, I find that the applicant was not mentally incompetent through July 2016. As a result of this finding, I need not address the applicant’s submission that mental incompetency prior to filing stays the running of the limitation period.
ORDER
10I can find no ambiguity in either the Insurance Act or the Schedule that would allow me to extend the limitation period beyond July 13, 2016; nor has the applicant pointed me to any authority giving me that power. I find that the application cannot proceed as it was brought after the expiry of the limitation period.
Released: August 23, 2017
___________________________
D. Gregory Flude, Vice-Chair
Footnotes
- R.R.O. 403/96
- Schedule s. 5 (2) (b)
- Under the legislation as it was in 2009, the 2 year limitation period was set out both at s. 281.1 of the Insurance Act R.S.O. 1990 c I.8 and in s. 51 of the Schedule
- The legislative changes effective April 1, 2016 that established the Tribunal’s jurisdiction to hear appeals under the Schedule continued the two year limitation period, but failed to provide transition rules to deal with an extension of the two years for 90 days following the release of the mediators report set out in s. 51 (2) of the Schedule and s. 281.1 of the Act. I am prepared to accept that the 90 days extension applies for the purposes of this application.