Cope v. Dominion of Canada General Insurance Company, CITATION: 2015 ONSC 1485
COURT FILE NO.: 14-49221
DATE: 2015-03-06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gregory Cope
AND: Dominion of Canada General Insurance Company
BEFORE: Mr Justice Ramsay
COUNSEL: Mr A. Rudder for the plaintiff; Ms Lisa Pool for the defendant
HEARD: 2015-03-05
ENDORSEMENT
[1] The defendant moves to dismiss this Statutory Accident Benefits action.
[2] The plaintiff was born on May 27, 1987. On March 22, 2003, shortly before his 16th birthday, he was injured in a car accident. He suffered a sore neck for about a week. His father was also injured in the accident. The father was as a result unable to give the plaintiff the support he had been used to. The plaintiff suffers from muscular dystrophy. He was ambulatory in 2003 but by age 18 needed a wheelchair. The plaintiff says that his condition deteriorated more quickly than it would have because without his father’s help he was not able to be as active as he had been.
[3] After the accident, the plaintiff’s father reported the accident to the police. He also notified the defendant of the accident within the 30 day period that was then prescribed by the applicable regulation, O.Reg. 403/96. The defendant mailed to the plaintiff the materials required by s.32 (2) of the regulation, including an application for accident benefits (OCF-1) and a certificate of disability (OCF-3).
[4] Under s.32 (3) of the regulation, the plaintiff had 30 days from receipt of the materials to file his application for accident benefits. He filed the application in the spring of 2014, a delay of about 11 years.
[5] Section 31 of the Regulation provides:
- (1) A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation. O. Reg. 403/96, s. 31 (1).
(2) Subsection (1) does not apply to the time limits set out in section 51.
[6] Shortly after the accident the plaintiff’s father was represented by a lawyer, Mr Ferro. The plaintiff and his father also saw Mr Ferro on November 23, 2009. According to a letter from Mr Ferro to the family doctor, Mr Ferro thought that the plaintiff and his father should apply for non-earner benefits. Mr Ferro sent them to Dr Black with an OCF-3, the form on which the doctor could indicate whether there was evidence of a substantial inability to lead a normal life after the accident.
[7] The plaintiff’s lawyer explained the omission to file a claim within 30 days in a letter to the defendant dated June 3, 2014. The lawyer referred to the plaintiff’s minority at the time of the accident, his father’s illiteracy, family stress, divorce proceedings between the plaintiff’s parents and the father’s financial problems and inability to take care of the plaintiff’s special needs. The letter offered no explanation for the delay between 2009 and 2014.
[8] A trial is not necessary. This claim cannot possibly succeed. The evidence comes nowhere close to providing a reasonable excuse for all this delay. It is admitted that the plaintiff, then 22 years old, consulted with a lawyer in 2009 with a view to making a claim for accident benefits. There is no explanation whatsoever for the four and a half years of delay that ensued from that late point. The claim is obviously barred by s.31 of the Regulation, without even considering the six years between the accident and the later visit to Mr Ferro.
[9] In any event the plaintiff cannot prove his entitlement to benefits. He was not seriously hurt in the accident. He had a sore neck for a week. He kept going to school. The bald allegations in his affidavit of psychological injury attributable to the accident are not credible. In his pre-claim examination, the plaintiff deposed:
Q. Did you ever go see anyone for any psychological injuries or psychotherapy after the accident?
A. Not related to the accident, no.
Q. So related to the family law dispute?
A. Yes.
[10] The claim for bad faith in administering the claim is also unsustainable on the evidence. There was no claim to administer. The plaintiff admitted that he left things to his father. He may or may not have seen the application package. Nothing the defendant did could have done more than disappoint the plaintiff.
[11] Summary judgment is given to the defendant. The defendant may make submissions to costs within 10 days and the plaintiff within 10 days thereafter.
J.A. Ramsay J.
Date: 2015-03-06