COURT FILE AND PARTIES
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Allan Compton, Plaintiff
- and –
State Farm Insurance Company of Canada, Defendant
BEFORE: Hackland R.S.J. (Kingston, August 29, 2013)
COUNSEL:
John M. Farant, for the Plaintiff
Joseph W.L. Griffiths, for the Defendant (Moving Party)
ENDORSEMENT
1This is a motion for leave to appeal the decision of a motion judge refusing the defendant insurer’s motion for summary judgment. The defendant sought to have the plaintiff’s claim for statutory accident benefits dismissed because the action was commenced more than two years after the insurer first issued its denial of the claim.
2The two year limitation for commencing a court proceeding to claim statutory accident benefits is contained in Section 281.1 of the Insurance Act and in Section 51(1) of the Statutory Accident Benefits Schedule. In this case the motor vehicle accident occurred on September 30, 2003 and the defendant insurer denied the plaintiff’s claim for benefits on September 13, 2007. This action was commenced May 14, 2012, more than four years after the refusal.
3Notwithstanding this elapse of time, the motion judge was of the view that in the circumstances of this case, he lacked “a full appreciation of this matter” such that the action should proceed to trial. His reasons appear in paragraph 12 of his Motion Decision, as follows:
12Section 281.1 of the Insurance Act is clear that the insured must commence his/her action within two years after the refusal by the insurer. In this case, based on the OCF-9 refusal date of September 13, 2007, the action was commenced some four and one-half years after such refusal. Generally speaking, I agree that the limitation period would have commenced on September 13, 2007. However, I have concerns notably about the errors contained in the second OCF-9 dated September 14, 2010, which have not satisfied me as to the date of the limitation commenced in this unique situation. Also, I have concerns as to whether the fresh medical finding is in issue, given that the insurer need only rely on its initial denial in order to preclude further or additional income replacement payments (I was advised by counsel that the insurer has paid 96 of the required 104 payments).
4The “unique situation” referred to by the motion judge was the fact that in August 2010 the plaintiff obtained a further medical assessment stating that he “now meets the criteria for fibromyalgia” resulting from the 2003 motor vehicle accident following which he submitted a further claim for Statutory Accident Benefits’ benefits. This further claim was refused on September 14, 2010 as set out in the insurer’s OCF-9 form. Instead of simply stating that the claim was out of time, the form stated:
Please be advised we are in receipt of your Disability Certificate (ODF-3). Based on the Physiatry Independent Exam Report on August 27, 2010, you do not suffer a substantial inability to perform the essential tasks of your employment. Therefore, this benefit is not payable. (emphasis added).
5I note that it is common ground that the reference to the physiatry report being August 27, 2010 is a typographical error. There was only one such report and it was dated August 27, 2007. I note as well that page 3 of the OCF-9 form contains the standard form text advising of the two year limitation period.
6The motion judge appears to suggest, with reference to “concerns” about the error in the second OCF-9 form dated September 14, 2010, that there was either some form of waiver of the limitation period by the insurer or some extension of the limitation period on discoverability principles given the plaintiff’s further medical report accompanying his August 2010 application for benefits.
7The defendant insurer argues that it is well settled law that the two year limitation period runs from the refusal of benefits. This limitation period is not subject to principles of discoverability. I am respectfully of the view that this is indeed well settled law, see Katanic v. State Farm Mutual Automobile Insurance Company, 2013 ONSC 5103. Moreover, given the insurer’s explicit refusal of the claim in the September 2010 OCF-9 form based on the “Physiatry Independent Exam Report”, there would be no basis for finding an implied waiver of the limitation period.
8I accept the defendant’s submission that the motion judge’s decision is in apparent conflict with other decisions of Ontario Courts such as Katanic and Hammond v. State Farm Automobile Insurance Company, 2012 ONCA 704 and it is desirable that leave to appeal be granted given the importance of certainty as to the operation of this important limitation provision in what is this province’s statutory motor vehicle accident compensation scheme. The test for granting leave to appeal under Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure is met.
9Accordingly, leave to appeal is granted. Costs of this motion for leave to appeal are reserved to the Divisional Court.
Mr. Justice Charles T. Hackland
Released: September 17, 2013
COURT FILE NO.: CV-12-213-00
DATE: 20130917
SUPERIOR COURT OF JUSTICE - ONTARIO
ALLAN COMPTON
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STATE FARM INSURANCE COMPANY OF CANADA
ENDORSEMENT
HACKLAND R.S.J.
Released: September 17, 2013
