The Guarantee Company of North America v. Do et al.

[Indexed as: Guarantee Co. of North America v. Do]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

J. Wilson, Harvison Young and Tzimas JJ.

April 14, 2015

125 O.R. (3d) 585 | 2015 ONSC 1891

Case Summary

Insurance — Automobile insurance — Arbitration — Arbitrator finding that insurer's refusal to designate insured as catastrophically impaired under s. 40(1) of Statutory Accident Benefits Schedule did not constitute refusal or denial of benefit that triggered running of limitation period under s. 281.1(1) of Insurance Act — Director's delegate upholding that decision — Director's delegate's decision reasonable — Insurance Act, R.S.O. 1990, c. I.8, s. 281.1(1) — Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96, s. 40(1).

The respondent was injured in a motor vehicle accident. On May 2, 2007, the applicant insurer denied him catastrophic impairment status under s. 40(1) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996 ("SABS"). The respondent underwent a further assessment and sent a copy to the applicant's adjuster. In April 2008, the adjuster notified the respondent that the applicant's determination remained unchanged. The applicant applied for mediation, which was unsuccessful. In March 2011, the respondent applied for arbitration. The applicant brought a preliminary motion to determine whether the respondent was precluded from arbitration on the basis that his application for arbitration was filed beyond the two-year limitation period provided under the [page586] SABS and the Insurance Act. The arbitrator ruled that the applicant's refusal to designate the respondent as catastrophically impaired did not constitute a "refusal or denial of a benefit" that triggered the running of a limitation period under s. 281.1(1) of the Insurance Act. The director's delegate upheld that ruling, holding that a catastrophic impairment determination does not by itself bestow any monetary award but rather entitles an insured person to claim a greater level of benefits, and that the letter in May 2007 did not deny any stated benefits under Parts II to VIII of SABS, or any monetary payment or amount under s. 46 of SABS. He further found that, even if there was a refusal of benefits, it was not clear and unequivocal. The applicant applied for judicial review of the director's delegate's decision.

Held, the application should be dismissed.

The standard of review of the director's delegate's decision was reasonableness. The director's delegate's decision readily satisfied the requirement of justification, transparency and intelligibility, and fell within the range of possible acceptable outcomes which were defensible in respect of the facts and law.

McLinden (Litigation guardian of) v. Payne, [2011] O.J. No. 2636, 2011 ONCA 439, 97 C.C.L.I. (4th) 179, affg (2010), 104 O.R. (3d) 554, [2010] O.J. No. 5604, 2010 ONSC 6868, [2011] I.L.R. I-5088, 93 C.C.L.I. (4th) 70, 196 A.C.W.S. (3d) 230 (S.C.J.); Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 S.C.R. 283, [2012] S.C.J. No. 35, 2012 SCC 35, 2012EXP-2624, J.E. 2012-1380, EYB 2012-208930, 432 N.R. 1, 100 C.P.R. (4th) 204, 347 D.L.R. (4th) 235, 38 Admin. L.R. (5th) 1, 216 A.C.W.S. (3d) 219; State Farm Mutual Automobile Insurance Co. v. Federico, [2014] O.J. No. 142, 2014 ONSC 109 (Div. Ct.) [Leave to appeal application dismissed May 21, 2014 (C.A.)], consd

Other cases referred to

Aviva Canada Inc. v. Pastore (2012), 112 O.R. (3d) 523, [2012] O.J. No. 4508, 2012 ONCA 642, 38 M.V.R. (6th) 177, 296 O.A.C. 281, [2012] I.L.R. I-5350, 12 C.C.L.I. (5th) 1, 355 D.L.R. (4th) 265, 220 A.C.W.S. (3d) 408; Aviva Canada Inc. v. Pastore, [2012] O.J. No. 5950, 2012 ONCA 887, 300 O.A.C. 355; Bains v. RBC General Insurance Co., [2010] O.F.S.C.D. No. 65; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Do v. Guarantee Co. of North America, [2013] O.F.S.C.D. No. 203; Do v. Guarantee Co. of North America, [2012] O.F.S.C.D. No. 143; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Gordyukova v. Certas Direct Insurance Co. (2012), 112 O.R. (3d) 446, [2012] O.J. No. 4062, 2012 ONCA 563, [2012] I.L.R. I-5332, 40 M.V.R. (6th) 71, 295 O.A.C. 392, 13 C.C.L.I. (5th) 188, 221 A.C.W.S. (3d) 202; McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, 2013 SCC 67, 347 B.C.A.C. 1, 452 N.R. 340, 2013EXP-3911, J.E. 2013-2131, EYB 2013-230152, 366 D.L.R. (4th) 30, [2014] 2 W.W.R. 415, 53 B.C.L.R. (5th) 1, 64 Admin. L.R. (5th) 237, 235 A.C.W.S. (3d) 290; Shannahan v. Optimum Frontier Insurance Co., [2005] O.F.S.C.D. No. 41

Statutes referred to

Copyright Act, R.S.C. 1985, c. C-42 [as am.]

Insurance Act, R.S.O. 1990, c. I.8, ss. 20 [as am.], 281.1(1) [as am.]

Securities Act, R.S.B.C. 1996, c. 418 [as am.] [page587]

Rules and regulations referred to

Statutory Accidents Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96, Part II, Part VIII, ss. 40(1), 46

Authorities referred to

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002)

APPLICATION for judicial review of a decision of the director's delegate upholding a preliminary arbitration order.

Alexander W. Neaves, for applicant.

Samia Alam, for respondent Dong Do.

Deborah McPhail and Joe Nemet, for respondent Financial Services Commission of Ontario.

The judgment of the court was delivered by

[1] HARVISON YOUNG J.: — The applicant, the Guarantee Company of North America ("Guarantee Company"), seeks judicial review of the decision of the director's delegate of the Financial Services Commission of Ontario ("director's delegate") dated October 11, 2013 [[2013] O.F.S.C.D. No. 203]. The director's delegate upheld the arbitrator's preliminary arbitration order, in which the arbitrator found that the Guarantee Company's refusal to designate the respondent, Dong Do ("Mr. Do"), as catastrophically impaired under s. 40(1) of the Statutory Accidents Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 ("SABS") did not constitute a "refusal or denial of a benefit" that triggered the running of a limitation period under s. 281.1(1) of the Insurance Act, R.S.O. 1990, c. I.8 ("Insurance Act"). As a consequence, Mr. Do was not barred from applying for arbitration of the Guarantee Company's decision on his catastrophic impairment status.

Background

[2] Mr. Do was injured in a motor vehicle accident on October 9, 2005. In December 2006, he applied for catastrophic impairment determination ("CAT") under s. 40(1) of SABS. The Guarantee Company denied him catastrophic impairment status on May 2, 2007. The denial letter contained the following statement:

Please find enclosed an Explanation of Benefits (OCF-9) for your records. The last page of this form outlines the procedures you must follow if you disagree with any decision that has been made and warns you of the two year time limit. [page588]

[3] The OCF-9 form warned that Mr. Do had "two years from the date of your insurer's refusal to pay, or reduction of a benefit, to arbitrate or commence a lawsuit in court". The form also outlined the steps Mr. Do could take to dispute the status decision, beginning with Mr. Do's right to a post-denial examination or assessment in respect of the refusal.

[4] Mr. Do then underwent a further multidisciplinary assessment to rebut the conclusions of the Guarantee Company's CAT assessment (the "rebuttal CAT assessment"). A copy of the rebuttal CAT assessment was sent to the Guarantee Company's adjuster on March 6, 2008. On April 10, 2008, the Guarantee Company's adjuster sent correspondence to Mr. Do (with a copy to his counsel) notifying him that a copy of the rebuttal CAT assessment was reviewed by Dr. Ozersky (one of the assessors who assessed Mr. Do as part of the Guarantee Company's CAT assessment) and that Dr. Ozersky's opinion remained unchanged. The adjuster notified Mr. Do that the Guarantee Company's determination also remained unchanged -- that he did not suffer a catastrophic impairment as a result of the accident.

[5] In February 2010, Mr. Do applied for mediation to dispute the denial of catastrophic impairment status. Mediation ended unsuccessfully on December 10, 2010.

[6] In March 2011, Mr. Do applied for arbitration. The Guarantee Company brought a preliminary motion to determine whether Mr. Do was precluded from arbitration on the basis that his application for mediation was filed beyond the two-year limitation period provided under SABS and the Insurance Act as it was filed two years and nine months after the first refusal dated May 2, 2007. This motion was heard in December 2011.

The Arbitrator's Decision

[7] The arbitrator released her decision on November 6, 2012 [[2012] O.F.S.C.D. No. 43]. She found that neither the May 2007 nor the April 2008 refusals by the Guarantee Company to designate Mr. Do catastrophically impaired triggered the limitation period.

[8] The basis for her conclusion was the wording of the limitation period in s. 281.1(1) of the Insurance Act:

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.

[9] The arbitrator found that the denial of catastrophic impairment status was not a "refusal to pay a benefit". Catastrophic [page589] impairment status is not itself a benefit, but rather a [at para. 19] "preliminary question, which must be determined before the question of entitlement to or the amount of benefits can be determined".

[10] In the alternative, the arbitrator pointed to case law that stated that for a refusal to trigger a limitation period it [footnote 11] "must be clear and unequivocal, and must be communicated to the applicant". She held that neither the May 2007, nor the April 2008 refusals met this requirement. Regarding clarity, the standard form given to Mr. Do said nothing about a limitation period regarding a refusal of a determination of catastrophic impairment. The standard form was also not unequivocal, because it stated that the insured person has a right to obtain a rebuttal assessment. By granting a right to rebuttal [at para. 29], "it is at least implicit that the insurer would consider the rebuttal assessment and defer its final determination if he chose to exercise that right". The limitation period would therefore only begin to run after a "final" determination, which was communicated in 2008.

[11] The arbitrator concluded that, in the alternative, if the limitation period was triggered by a denial of catastrophic impairment status, it was not triggered until the final denial in 2008. Mr. Do's mediation application, filed one year and ten months later, was therefore timely. Further, Mr. Do's arbitration application was received within the 90-day period after the report of the mediator, and was also timely.

The Director's Delegate's Decision

[12] The director's delegate confirmed that the heart of the appeal was whether an insurer's refusal to designate an insured as catastrophically impaired is a refusal of a benefit and, if so, whether the insurer's refusal was clear and unequivocal such as to trigger the limitation period.

[13] He found, first, that a CAT determination does not by itself bestow any monetary award but rather entitles an insured person to claim a greater level of benefits and that the letter in May 2007 did not deny any stated benefits under Parts II to VIII of SABS, or any monetary payment or amount under s. 46 of SABS.

[14] Second, the director's delegate also found no refusal of any benefit or monetary amount in the Guarantee Company's April 10, 2008 letter. He considered the notifications and found that they did not constitute clear and unequivocal refusals to pay benefits claimed. Ultimately, the director's delegate upheld the arbitrator's finding that the limitation period in s. 281.1(1) of [page590] the Insurance Act was not triggered by the Guarantee Company's denial of catastrophic impairment status under s. 40(1) of SABS.

[15] Finally, the director's delegate held that the arbitrator erred in finding in the alternative that only a final denial after receipt of a rebuttal report would trigger the running of a limitation period. This was not an issue before this court on the application for judicial review.

The Standard of Review

[16] The Guarantee Company submits that the questions of whether the limitation period set out in s. 281.1(1) of the Insurance Act applies to a dispute over a refused CAT application, and whether the Guarantee Company's letter of May 2007 constituted a "clear and unequivocal" refusal of benefits should be reviewed on a standard of correctness.

[17] The Guarantee Company acknowledges that where an administrative tribunal is interpreting its home statute, there is a presumption that the appropriate standard is reasonableness. It submits, however, that as in the case of Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 S.C.R. 283, [2012] S.C.J. No. 35, 2012 SCC 35, there is a concurrent jurisdiction between the tribunal and the court at first instance which rebuts the presumption of a reasonableness standard. In Rogers, the presumption was rebutted because both the Copyright Board and the courts could be called upon to interpret the same legal questions, giving rise to conflicting interpretations attracting different standards of review. For example, at para. 14, Rothstein J. wrote:

It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.

[18] I do not agree that Rogers applies to the present case for the following reasons.

[19] First, the mere fact that a court might be called upon to interpret the same legislative provision as an administrative body cannot, in and of itself, displace the presumption of deference without a consideration of all the other factors relevant to the determination of the standard of review set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at paras. 52-64, and I do not read Rogers as suggesting that it would. [page591]

[20] In Rogers, Rothstein J. described the Copyright Act, at para. 15, as an "unusual statutory scheme". At para. 19, he stated as follows:

I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises. Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts.

[21] The majority reasons in Rogers do not contemplate a broad reconsideration of the standard of review. Indeed, Rothstein J. ends para. 19 with the following statement:

Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function.

[22] Second, the presence of a strong privative clause at s. 20 of the Insurance Act is an important factor pointing to the reasonableness standard of review and there is a significant body of case law which recognizes this: see Aviva Canada Inc. v. Pastore (2012), 112 O.R. (3d) 523, [2012] O.J. No. 4508, 2012 ONCA 642, at para. 18; and State Farm Mutual Automobile Insurance Co. v. Federico, [2014] O.J. No. 142, 2014 ONSC 109 (Div. Ct.), at para. 7. Comparatively, there is no privative clause in the Copyright Act, R.S.C. 1985, c. C-42.

[23] Federico was decided by this court following the release of the Rogers decision. Speaking for the court, Sachs J. expressly considered and rejected the submission that, in light of Rogers, the standard of review applicable to FSCO should be correctness, stating, at para. 7:

. . . [p]rivative clauses are a significant factor that "weighs strongly in favour of the reasonableness standard" (see Pastore, para. 21).

[24] At para. 8 of her reasons, Sachs J. notes that the Court of Appeal had been asked to reconsider Pastore on the basis of Rogers and had refused to do so: see Aviva Canada Inc. v. Pastore, [2012] O.J. No. 5950, 2012 ONCA 887. The defendant insurer's leave to appeal application in Federico was dismissed by the Court of Appeal on May 21, 2014.

[25] I would also note that it has been clearly established by pre-Rogers case law that the reasonableness standard applies to the director's delegate's interpretation of s. 281.1(1): see Gordyukova v. Certas Direct Insurance Co. (2012), 112 O.R. (3d) 446, [2012] O.J. No. 4062, 2012 ONCA 563, at para. 18. [page592]

[26] Third, the Guarantee Company also submits that the limitation issue in the present case amounts to a general question of law which should be subject to a correctness standard of review. It submits both that Rogers supports this view, and more broadly, that this is the sort of general question of law that attracts the correctness standard.

[27] I do not agree that the issue in the case at bar is a general question of law of the sort that was in issue in the Rogers case. The issue in Rogers concerned a distilled question of law. As framed by Rothstein J. in his reasons, at para. 20, the question the court was asked to determine was

whether a point-to-point transmission can ever constitute a communication "to the public" within the meaning of s. 3(1) (f) of the Copyright Act.

(Emphasis in original; citation omitted)

[28] The central question in the present case is whether the notification letter dated May 2, 2007 constituted a "refusal" within the meaning of s. 281.1(1) of the Insurance Act. This is a question which demands consideration of the context of the Act and the particular wording and specific factual circumstances of that notification. This is not a strict question of law, as in Rogers.

[29] Finally, the Guarantee Company also submits that the issue in this case concerns a limitation period and is thus a "general question of law" which does not attract a deferential standard of review.

[30] Again, I do not agree. The analysis articulated by Moldaver J. in his reasons for decision in the recent Supreme Court decision in McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, [2013] S.C.J .No. 67, 2013 SCC 67 supports the application of a reasonableness standard to the issues before the court in the case at bar. In that case, the issue concerned the interpretation of a limitation period by the British Columbia Securities Commission pursuant to the Securities Act, R.S.B.C. 1996, c. 418. As in the present case, the appellant there argued that the interpretation of a limitation period constituted a general question of law that should be subject to the standard of correctness. Moldaver J. wrote as follows, at para. 28:

. . . although I agree that limitation periods, as a conceptual matter, are generally of central importance to the fair administration of justice, it does not follow that the Commission's interpretation of this limitation period must be reviewed for its correctness. The meaning of "the events" in s. 159 is a nuts-and-bolts question of statutory interpretation confined to a particular context.

(Emphasis in original) [page593]

[31] The same is true in the present case where the central issue is not a conceptual interpretation of a limitation clause, but a "nuts-and-bolts" interpretation question within a highly factual context relating to the nature and wording of the notifications relied on by the Guarantee Company as constituting a "refusal of benefits" and thus triggering the limitation period.

[32] For these reasons, I conclude that the standard of review applicable to the director's delegate decision is reasonableness.

The Issue

[33] The central issue is the reasonableness of the director's delegate's conclusion that neither the letter of May 2007 nor the letter of April 2008 triggered the limitation period pursuant to s. 281.1(1) of the Insurance Act.

[34] The Guarantee Company submits that the limitation period, "on its face", was intended to apply to any mediation, arbitration or court proceeding regarding any dispute in respect of an injured person's entitlement to statutory accident benefits. They submit that a dispute over a refused CAT application is one such dispute. Accordingly [consolidated factum of the applicant, para. 54]:

[T]he words "refusal to pay the benefit claimed" [as contemplated by the limitation period] must therefore be interpreted within that legislative context -- i.e. a context in which the legislature clearly intended the limitation period to apply to a dispute over a refused CAT application.

Analysis

[35] For the reasons that follow, I find that the director's delegate's decision was reasonable and the application should be dismissed.

[36] The Guarantee Company relies on the decision of McLinden (Litigation guardian of) v. Payne (2010), 104 O.R. (3d) 554, [2010] O.J. No. 5604, 2010 ONSC 6868 (S.C.J.), as upheld at [2011] O.J. No. 2636, 2011 ONCA 439. In that case, the plaintiff submitted a CAT application to her insurer and it was refused. More than two years later she submitted a second application. She sought to amend her statement of claim to add her insurer as a party to the action so that she could dispute her insurer's refusal to accept her second CAT application. Eberhard J. dismissed the plaintiff's motion to amend, as she was not persuaded that the second CAT was anything other than a dispute of the denial of her first CAT application and that, under the terms of the SABS and the Insurance Act, such a dispute was permissible only within two years. [page594]

[37] In my view, McLinden does not assist the Guarantee Company. The central issue in that case concerned the circumstances under which a plaintiff ought to be able to make a second application, beyond the two-year limitation period. The question of whether the period under s. 281.1(1) had been triggered by the initial application does not appear to have been raised or argued. The factual context is unclear, and it is possible that there had been both a refusal of the CAT designation, as well as a refusal of benefits claimed in that case.

[38] In the case at bar, the director's delegate began by stating [[2013] O.F.S.C.D. No. 203, at para. 27]:

The heart of this appeal is whether an insurer's refusal to accept an insured as catastrophically impaired is a refusal of a benefit and, if so, was the Appellant's refusal clear and unequivocal such as to trigger the limitation period.

[39] He went on to cite the principle expressed by the Supreme Court in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, "that a principle of statutory interpretation could only receive application in circumstances of genuine ambiguity, that is, where a statutory provision was subject to differing but equally plausible, interpretations". He also cited Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002), p. 399, as follows [at para. 30]:

It is presumed that the legislature does not intend to abolish, limit or otherwise interfere with the rights of subjects. Legislation designed to curtain the rights that may be enjoyed by citizens is strictly construed.

[40] Applying these principles, the director's delegate agreed with the arbitrator that the denial of the status of catastrophic impairment in the May 2, 2007 notification was not a refusal to pay a benefit, reasoning that catastrophic impairment determination is not, in and of itself, a benefit under the SABS. While a CAT determination may have a direct relationship to monetary or time limits for certain benefits, the determination of CAT eligibility itself is not a benefit.

[41] In support of this point, he cited the decision of Arbitrator Slotnick in Shannahan v. Optimum Frontier Insurance Co., [2005] O.F.S.C.D. No. 41, FSCO A04-000965, who stated that a CAT determination is a test of eligibility, which entitles an insured person to claim a greater level of benefits. Further, in Bains v. RBC General Insurance Co., [2010] O.F.S.C.D. No. 65, FSCO P09-00005, the arbitrator stated that it does not automatically entitle a claimant to a higher level of accident benefits such as attendant care or housekeeping benefits. [page595]

[42] The director's delegate also noted that the May 2, 2007 letter did not contain any denial of a monetary payment or amount such as interest, and it specifically did not refuse payment of attendant care or housekeeping and home maintenance expenses, which formed the substantive benefit subject matter of the proceeding. He then referred again to the wording in s. 281.1(1), observing [at para. 42]:

[The] time limit does not run from the date "any decision has been made." It runs from "the insurer's refusal to pay the benefit claimed."

[43] The Guarantee Company was unable to point to any authority that supports its position that the notification of the CAT refusal triggered the limitation period for claiming benefits and that the director's decision was unreasonable.

[44] The director's delegate also addressed the question of whether, even if there was a refusal of benefits inherent in the denial of a CAT determination as asserted by the Guarantee Company, it was clear and unequivocal as the authorities require.

[45] The Guarantee Company argued that even an unsophisticated person would appreciate from a notification such as the May 2007 or April 2008 letter that "something" has been refused or taken away by the insurer.

[46] The director's delegate considered the Guarantee Company's submission that the housekeeping and attendant care claims were contingent on a CAT determination and that Mr. Do should have known that there would be legal consequences of the determination.

[47] Having considered these submissions, the director's delegate stated as follows [at para. 52]:

I find that an insurer's refusal implying to an insured person that "something" has been lost, "something" has been refused or that "something" has been taken away is not clear. It is not unequivocal. . . . I am not persuaded that an insinuation that some unnamed, unspecified statutory benefits have been refused constitutes a clear and unequivocal refusal of a benefit claimed sufficient to trigger a limitation period regarding any benefit under the Schedule requiring, as a prerequisite, a CAT designation.

[48] The director's delegate noted that mere implication that "something" has been lost was not unequivocal, it was not straightforward, and it did not provide sufficient information for an insured person to decide whether to dispute the determination.

[49] The director's delegate fully addressed the Guarantee Company's submissions, including its submission that Mr. Do's interpretation constituted an "absurd consequence", finding that it seemed to him that it would be an absurd consequence that the limitation period would begin to run before a benefit was [page596] even claimed, as the Guarantee Company conceded was the case with respect to housekeeping expenses.

[50] In essence, the director's delegate decided that the notification that Mr. Do's CAT application had been refused was not a "refusal" of benefits under the Insurance Act. The director's decision was reasonable. He carefully reviewed the applicable provisions and the notifications relied on by the Guarantee Company, particularly the letter of May 2, 2007. He also considered the appropriate authorities and legal tests both with respect to s. 281.1(1) and to the notifications relied on by the Guarantee Company as a refusal triggering the limitation period. Importantly, he did so within the context of the statutory scheme. As I have outlined above, he undertook this analysis with clarity, explaining both why the notification did not constitute a refusal within the statutory scheme and also why it did not, in any event, meet the "clear and unequivocal" requirement. His decision readily satisfies the requirement of justification, transparency and intelligibility and falls well within the range of possible acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v New Brunswick, supra, at para. 47. The application is therefore dismissed.

Costs

[51] Pursuant to the parties' agreement that costs would be payable to the successful party by the unsuccessful party in the amount of $11,000, costs are payable by the Guarantee Company to Mr. Do.

Application dismissed.

End of Document