Cosentino v. TD General Insurance Company of Canada
Court File No. CV-11-432421
ONCS 5911
S. Iordanis, counsel for the defendant
A. Koroly, counsel for the plaintiff
REASONS FOR DECISION
This is a motion by the defendant for an order setting aside the noting in default and for leave to file a defence.
The issues on the motion are as follows:
Whether the plaintiff has standing to bring the action, as the Financial Services Commission of Ontario (“FSCO”) has not mediated the plaintiff`s claim for statutory accident benefits (
SABs) pursuant to s. 281(2) of the Insurance Act, RSO 1990, c. I.8;Whether the noting in default ought to be set aside.
The background facts relevant to the motion are not contentious. The plaintiff was involved in a motor vehicle accident on July 21, 2010. The plaintiff issued a statement of claim on August 9, 2011 and the statement of claim was served on September 15, 2011. On October 6, 2011, the plaintiff noted the defendant in default.
On October 13, 2011, counsel for the defendant wrote to counsel for the plaintiff advising of his retainer and requesting an affidavit of service. By letter dated October 31, 2011, plaintiff’s counsel responded that the defendant had been noted in default and that the plaintiff had, for over one year, attempted to obtain a response from the defendant as to the plaintiff’s claim for benefits.
The period of delay in responding to the statement of claim is 28 days (from September 15, 2011 to October 13, 2011). There is no explanation for the delay in the defendant`s supporting motion materials.
The plaintiffs claim is for SABs. The plaintiff seeks a declaration that he is entitled to $1217.95 in attendant benefits, $100.00 per week for housekeeping and medical and rehabilitation benefits. The plaintiff seeks aggravated and exemplary damages in the amount of $250,000 as a result in the defendants alleged mishandling of the plaintiff`s SABs claim. The court was informed that the income replacement and medical rehabilitation benefits were received by the plaintiff and that the only areas of dispute concerned attendant care and housekeeping benefits.
The plaintiff applied for SABs on July 21, 2010. An in home assessment was approved on August 19, 2010 and the assessment was completed on August 30, 2010. The defendant refused the SAB claim and, on January 28, 2011, the plaintiff applied for mediation through FSCO.
At issue on the motion is the FSCO backlog. The plaintiff takes the position on the motion that following the expiration of two months following receipt of the application for mediation with FSCO, the mediation is deemed failed as it was not conducted within two months, the prescribed time. Section 10 of Ontario Regulation 664 enacted pursuant to the Insurance Act requires that mediation be conducted within 60 days after the date on which it is filed. The provision reads as follows:
A mediator is required, under subsection 280(4) of the Act, to attempt to effect a settlement of a dispute within sixty days after the date on which the application for the appointment of a mediator is filed.
In this case, the evidence is clear that the application for mediation was filed on January 28, 2011 (See Exhibit C to the affidavit of Martha Segovia sworn January 13, 2012.
Further, subsection 280(7) of the Insurance Act provides:
Mediation has failed when the mediator has given notice to the parties that in his or her opinion mediation will fail, or when the prescribed or agreed time for mediation has expired and no settlement has been reached.
It is clear from a review of the legislation and regulation, time runs from the date of filing (and not the date of the assignment of a mediator) and that the completion of a mediation is not necessary in order that the mediation be failed.
In my view, this conclusion is consistent with the notion that the mediation of disputes relating to SABs be available in a timely way. In fact, subsection 280(3) of the Insurance Act requires the Director to appoint a mediator promptly. To my reading of the relevant provisions, it was intended that the mediation process be completed within a prescribed time, failing which the mediation would be deemed failed.
In my view, the plaintiff`s claim is not premature. The claim was issued over 6 months after the plaintiff filed his application for mediation without any mediator being appointed or mediation having taken place. In my view, the plaintiff should not be prejudiced or held back due to the failure to appoint a mediator or the inability to complete the mediation.
The defendant has provided no explanation for its failure to respond to the statement of claim within the prescribed time for doing so. As a result, there is no evidence to support the making of an order to set aside the noting in default. There is no evidence of any, let alone continued, intent to defend the action.
I would dismiss the motion in its entirety. Costs are reserved pending written submissions from the parties, unless the issue can be resolved.
Motion dismissed.
Master M. Jean
October 16, 2012