Bonaccorso v. Optimum, 2015 ONSC 2633
CITATION: Bonaccorso v. Optimum, 2015 ONSC 2633
COURT FILE NO.: 13-44061
DATE: 2015-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Julie Bonaccorso
D. Roncari, for the Plaintiff
Plaintiff
- and -
Optimum Insurance Company Inc.
A. Lennox, for the Defendant
Defendant
HEARD: April 21, 2015
REASONS FOR JUDGMENT
Introduction:
[1] The defendant moves for summary judgment to dismiss the plaintiff’s case as being statute barred under the applicable limitation period.
[2] The plaintiff resists the motion on the basis that the appropriate date triggering the limitation period is not that alleged by the defence and as such there is a genuine issue for trial as to the correct date for the commencement of the limitation period.
Facts:
[3] The plaintiff was injured in a M.V.A on February 4,2008. She was unable to work and received Income Replacement Benefits (I.R.Bs) from the defendant.
[4] The plaintiff returned to work June 28, 2009 and the defendant ceased paying I.R.Bs.
[5] The defendant sent a letter dated February 8, 2010 to the plaintiff stating that since she had “resumed her pre-accident employment duties…” I.R.Bs were being discontinued effective June 28, 2009. She had received an earlier letter dated June 22, 2009 in anticipation of her returning to work June 28 on modified duties and was advised that no further benefits would be payable once she commenced full time work. The letter went on to say:
“In accordance with Section 11 of the SABS, a person receiving an Income Replacement Benefit may return or start employment at any time during the 104 weeks following the onset of the disability in respect of which the benefit is paid without affecting his or her entitlement to resume receiving Income Replacement Benefits under this part, if as a result of the accident, he or she is unable to continue in the employment.”
[6] The 104 week period under S.11 of the SABS expired on February 4, 2010.
[7] On February 15, 2011 the plaintiff ceased work, allegedly as a result of her M.V.A. injuries. This was well past the 104 weeks. On July 11, 2012 a doctor’s Disability Certificate was filed by the plaintiff indicating she was unable to perform the essential tasks of her employment due to her M.V.A. injuries. A request was made of the defendant to re-instate I.R.Bs by letter dated July 13, 2012 effective February 15, 2011. This request was approximately 1.5 years after she stopped work.
[8] The defendant denied coverage by way of letter dated July 20, 2012 on the basis that the plaintiff was past the limitation period to dispute the benefits.
[9] The plaintiff applied for mediation with FSCO on October 9, 2012. Mediation failed in September 2013 and the Statement of Claim was issued November 8, 2013.
Position of the Parties:
[10] The defendant argues the limitation period to seek mediation or initiate court proceedings under the Statutory Accident Benefits Schedule (SABS) s.51(1) “ …shall be commenced within two years of the insurer’s refusal to pay” means the limitation period expired on February 8, 2012, being 2 years after it advised the plaintiff no further IRBs would be paid as she had gone back to her pre-accident employment.
[11] The plaintiff argues that although she did indeed go back to work effective June, 2009 within the “104 week period of disability” and as such under S.11 of the SABS this should be considered a “temporary return” to work. In other words, the plaintiff argues, she attempted to return to her old job but by February, 2011, it became apparent she could no longer do it as a result of her M.V.A. injuries and has been off work ever since. Therefore the appropriate limitation date is July 20, 2014 being 2 years after the defendant denied the claim by letter dated July 20, 2012.
Analysis:
[12] The parties concede there are no facts in dispute. I agree.
[13] The defendant argues this is an appropriate case for summary judgment while the plaintiff argues there is a genuine issue for trial, although there are no facts in dispute.
[14] Rule 20 of the Rules of Civil Procedure states as follows:
20.04
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent
Drawing any reasonable inference from the evidence
[15] The Supreme Court of Canada in In Hryniak v. Mauldin, 2014 SCC 7stated, at para. 49:
[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[16] The court went on to indicate, at para. 50, that the overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication.” The Court went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
[17] I conclude that this is an appropriate case for summary judgment as all three criteria of the test in Hryniak have been met. I am confident that the undisputed facts, and the relevant legal principles, allow me to provide a fair and just adjudication to this dispute in a timely and least expensive way.
[18] I have reviewed the case law provided by both counsel and it appears that I am bound by Smith v. Co-Operators General Insurance Company, 2 002 S.C.C. 30. The issue in that case was what constituted a valid refusal to provide further benefits under the SABS which would then trigger the running of the limitation period. At para. 14 the majority stated:
In my opinion, the insurer is required under s. 71 to inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person. At a minimum, this should include a description of the most important points of the process, such as the right to seek mediation, the right to arbitrate or litigate if mediation fails, that mediation must be attempted before resorting to arbitration or litigation and the relevant time limits that govern the entire process. Without this basic information, it cannot be said that a valid refusal has been given.
[19] I have concluded that the letter of February 8, 2010 was a valid refusal of benefits as it was accompanied by the Explanation of Benefits. The language, in my view, was clear and unequivocal. It contained a step by step process to dispute the refusal and was very clear by stating in bold print WARNING: TWO YEAR TIME LIMIT “You have TWO YEARS from the date of your insurer’s refusal to pay…to arbitrate or commence a lawsuit in court.” The letter itself was very clear that since the plaintiff had resumed her pre-accident employment duties the insurer was discontinuing payment of any further I.R.B.s.
[20] The limitation period under the Insurance Act s. 281.1(1) states as follows:
“A mediation proceeding or evaluation under section 280 or 281.1 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.”
[21] The SABS schedule section 51(1) provides an identical two year limitation period triggered by the insurer’s refusal to pay the amount claimed.
[22] The argument of the plaintiff that the appropriate date for the valid refusal was the letter sent by the insurer on July 20, 2012 in response to the plaintiff’s request for reinstatement of benefits as she had stopped work, must fail.
[23] This court is bound by the authority of Haldenby v. Dominion of Canada General Insurance Company, 2001 CanLII 16603 (ON CA), 149 O.A.C. 172 and Wadhawni v. State Farm Mutual Automobile Insurance Company, 2014 ONCA 662. Both cases appear to be a complete answer to the plaintiff’s argument.
[24] In Haldenby the legislation at the time dealt with a 156 week period while the legislation for the case at bar is 104 weeks. The plaintiff returned to work within two years of the accident. The insurer advised her at the 156 week mark that benefits were terminated as she did not meet the disability test. One year later she lost her job. One year after that she requested further benefits which the insurer ignored. The plaintiff mediated her claim six months later and issued a statement of Claim over three years after the insurer’s letter of refusal of benefits.
[25] Ms. Haldenby’s argument that her return to work had in effect created two limitation periods failed. At paragraph 23 the court stated as follows:
As properly noted by the application judge, the relevant statutory language is not free of ambiguity. However, in our view, s. 26(1) contemplates one limitation period. It is the insurer's refusal which triggers the limitation period that can arise out of two types of situations. Indeed, the two parts of s. 26(1) apply respectively to the situations where (1) the insurer refuses to pay the amount claimed by the insured; or in the alternative where (2) the insurer refuses to pay further benefits if the claimant went to school or returned to work as permitted by s. 16.
[26] The court further opined at paragraphs 35 and 36:
The appellant's interpretation of s. 26(1) was properly rejected by David Evans, the arbitrator in Shirani v. Wellington Insurance Co. (F.S.C.O. File No. A96-000114, January 7, 1997) since it suggests that, in effect, there would be no limitation period. The appellant's interpretation of s. 26(1) would allow a person receiving benefits who has successfully returned to work, to apply for further benefits at any time in an undetermined future. The limitation period in s. 26(1) would only be engaged when such an application was refused.
[36] As noted by the application judge (para. 8), the appellant's approach would extend a claimant's entitlement to benefits for an indeterminate period of time and is "inconsistent with the Supreme Court of Canada's rationale which underlined the common sense of, and the need for limitation periods". Indeed, as discussed above, such an interpretation of ss. 26(1) and 16 would unreasonably controvert the systemic need for finality, certainty and the principle of diligence.
[27] The court of appeal in Wadhawni specifically followed Haldenby and made it clear that it continues to be the law in this province. The court framed the issue and response as follows:
[14] The argument for the appellant is that an insured can return to work during the initial 104-week period (as the appellant did here) and, if at some time thereafter she or he is entirely unable to work because of accident-related injuries, she or he can reassert a claim for income replacement benefits at any time, with the limitation period beginning to run only when the insurer refuses to pay the further benefits claimed.
[15] This argument was rejected by this court in Haldenby v. Dominion of Canada General Insurance Co. (2001), 2001 CanLII 16603 (ON CA), 55 O.R. (3d) 470. A similar conclusion was reached by the Appeal Division of the Financial Services Commission of Ontario in Ladhar v. Economical Mutual Insurance Co., 2012 CarswellOnt 5805.
[16] We would not give effect to this ground of appeal.
CONCLUSION:
[28] I conclude that the defendant gave the plaintiff a valid refusal of further benefits pursuant to the guidelines set out in Smith by way of its letter dated February 8, 2010 with enclosures. As a result the two year limitation period was triggered and the plaintiff should have been well aware of that based on the Explanation of Benefits enclosed with the letter of refusal. She should have been aware that she had to apply for benefits and mediation on or before February 8, 2012 to be within the two year limitation period. She stopped work on February 15, 2011, well past the 104 week period. She therefore had almost one year to commence proceedings under the Act but failed to do so and the limitation period expired. There is no genuine issue for trial and summary judgment is granted dismissing the action.
[29] The parties indicated costs should follow the result of this motion. The plaintiff had a bill of costs for only the motion in an amount of $3,200.00 on a partial indemnity basis. The defendant did not have a draft bill but estimated her costs to date for the entire action at approximately $15,000.00 on a full indemnity basis. The defendant has been totally successful and is entitled to costs. There is nothing to indicate that the usual rule of partial indemnity costs for the defence should not prevail. The defence is entitled to its costs for the entire action as it was successful in having the case fully dismissed. I fix those costs at $5,500.00 inclusive of taxes and disbursements, payable within 30 days, as fair and reasonable under all the circumstances.
Arrell, J.
Released: April 24, 2015
CITATION: Bonaccorso v. Optimum, 2015 ONSC 2633
COURT FILE NO.: 13-44061
DATE: 2015-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Julie Bonaccorso
Plaintiff
- and –
Optimum Insurance Company Inc.
Respondent
REASONS FOR JUDGMENT
HSA;vt
Released: April 24, 2015