Steele v. Intact Insurance Company

CITATION: 2014 ONSC 6999

COURT FILE NO.: 12-38399

DATE: 2014-12-03

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jaqueline Steele, plaintiff

AND: Intact Insurance Company, defendant

BEFORE: Mr Justice Ramsay

COUNSEL: Ferro & Company for the plaintiff; Mr. B. Kurpis for the defendant

HEARD: 2014-12-03 at Hamilton

ENDORSEMENT

[1] The defendant moved for summary judgment. The motion was scheduled for hearing on the weekly lists of April 17, 2014 and then June 16, 2014. By agreement of counsel it was re-scheduled for hearing on this week’s list. It was confirmed and then called for hearing today. The plaintiff’s lawyers were notified by telephone and fax. The plaintiff’s lawyers have not appeared, without explanation. There is a note from the trial coordinator on a yellow sticky, saying “Mr. Ferro’s office wants adj.” That is the sum total of communication from the plaintiff’s law firm, which has several lawyers. The defendant’s counsel asked to proceed. I saw no reasonable basis for declining to do so given the number of times the case has been up, the lack of any explanation and the fact that in all this time the plaintiff has filed no material. The motion was argued.

[2] The facts of the case are indistinguishable from Seitzema v. Economical Mutual Insurance Company, 2014 ONCA 111, leave to appeal dismissed [2014] SCCA No. 172. Accordingly the defendant is entitled to judgment because the action was filed outside the limitation period. I granted summary judgment in open court with reasons to follow. These are they.

[3] The plaintiff was hurt in a car accident on February 19, 2007. Within days the defendant, her insurer, sent her an application package for accident benefits. On February 27, 2007 the plaintiff sent the application. On March 26, 2007 she sent a disability certificate on which the question “Is the applicant substantially unable to perform the essential tasks of her employment at the time of the accident and as a result of and within 104 weeks of the accident?” was answered in the affirmative. Questions related to the criteria for non-earner benefits and caregiver benefits were not answered.

[4] The defendant found the plaintiff to be eligible for income replacement benefits for the prescribed period for her type of injury (a whiplash disorder II). The period ended on June 11, 2007. In the explanation of benefits (OCF-9), dated April 3, 2007 it denied other benefits, advising, “As you were working at the time of the accident and are not the primary caregiver to a dependant you do not qualify for non-earner benefits or caregiver benefits.”

[5] As the plaintiff was covered by her employer for missed work, the defendant did not actually have to pay the income replacement benefit.

[6] The defendant wrote to the plaintiff again on September 11, 2007 and February 12, 2008. When it did not hear from her by February 26, 2008 it closed its file.

[7] It did not hear from the plaintiff again until October 19, 2011 when her lawyer wrote to them to claim that it should have advised her to consider electing non-earner benefits, since the income replacement benefit was of no use to her. Mediation and litigation proceeded thereafter. The statement of claim was filed on January 29, 2013. The plaintiff has never filed a disability certificate that indicated that she was suffering a complete inability to carry on a normal life.

[8] The limitation period in s.281.1 of the Insurance Act runs from the date of the refusal. A clear an unequivocal refusal was made on April 3, 2007. No mediation or neutral evaluation took place to extend the limitation period. The period therefore expired on April 3, 2009. Any error in the reasons for refusal does not invalidate the refusal for our purposes: Sietzema, supra. The defendant is entitled to summary judgment for this reason alone.

[9] It is also entitled to summary judgement on the ground that the plaintiff has never filed a disability certificate that certifies that she meets the criterion for non-earner benefits: Sagan v. Dominion of Canada General Insurance Co., 2014 ONCA 720.

[10] The statement of claim also contains allegations of bad faith in administering the claim. They are unsupported by any evidence and it is plain and obvious that they cannot succeed. The plaintiff herself deposed on discovery that she has never felt mistreated by the insurer. Furthermore, the claims for bad faith are subject to the same limitation period as the claim for accident benefits: Arsenault v. Dumfries Mutual Insurance Co., 2002 23580 (ON CA), [2002] O.J. No. 4 (CA).

[11] For these reasons I granted summary judgment.

J.A. Ramsay J.

Date: 2014-12-03