Guarantee Co. of North America v. Do et al., (2015) 333 O.A.C. 247 (DC)
| Judge | J. Wilson, Harvison Young and Tzimas, JJ. |
| Court | Superior Court of Justice of Ontario (Canada) |
| Case Date | February 17, 2015 |
| Jurisdiction | Ontario |
| Citations | (2015), 333 O.A.C. 247 (DC);2015 ONSC 1891 |
Guarantee Co. v. Do (2015), 333 O.A.C. 247 (DC)
MLB headnote and full text
Temp. Cite: [2015] O.A.C. TBEd. MY.014
The Guarantee Company of North America (applicant) v. Dong Do, Financial Services Commission of Ontario and Attorney General of Ontario (respondents)
(DC-15-031; 2015 ONSC 1891)
Indexed As: Guarantee Co. of North America v. Do et al.
Court of Ontario
Superior Court of Justice
Divisional Court
J. Wilson, Harvison Young and Tzimas, JJ.
April 14, 2015.
Summary:
Do was injured in a motor vehicle accident in October 2005. In December 2006, he applied for catastrophic impairment determination (CAT) under s. 40(1) of Statutory Accidents Benefits Schedule (SABS). The insurer denied Do CAT status in May 2007. Do obtained a rebuttal CAT assessment. In April 2008, the insurer notified Do that its decision was unchanged. Mediation was unsuccessful. In March 2011, Do applied for arbitration. The insurer asserted that the application was filed beyond the two year limitation period established under SABS and s. 281.1(1) of the Insurance Act. The arbitrator held that the insurer's denial of CAT status was not a "refusal to pay the benefit" triggering the limitation period and that, even if the limitation period was triggered, time did not begin to run until the insurer's final decision in April 2008. Do's application for mediation had been made within two years of that decision. The Director's Delegate upheld the arbitrator's decision. The insurer applied for judicial review.
The Ontario Divisional Court dismissed the application.
Insurance - Topic 5062.2
Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Catastrophic impairment - Do was injured in a motor vehicle accident in October 2005 - In December 2006, he applied for catastrophic impairment determination (CAT) under s. 40(1) of Statutory Accidents Benefits Schedule (SABS) - The insurer denied Do CAT status in May 2007 - Do obtained a rebuttal CAT assessment - In April 2008, the insurer notified Do that its decision was unchanged - Mediation was unsuccessful - In March 2011, Do applied for arbitration - The insurer asserted that the application was filed beyond the two year limitation period established under SABS and s. 281.1(1) of the Insurance Act - The arbitrator held that the insurer's denial of CAT status was not a "refusal to pay the benefit" triggering the limitation period and that, even if the limitation period was triggered, time did not begin to run until the insurer's final decision in April 2008 - Do's application for mediation had been made within two years of that decision - The Director's Delegate upheld the arbitrator's decision - The Ontario Divisional Court dismissed the insurer's application for judicial review - The determination that a refusal of CAT status was not a refusal to pay a benefit was reasonable - While a CAT determination might have a direct relationship to monetary benefits, the determination of CAT eligibility was not, itself, a benefit - In any event, the notice of the refusal did not meet the "clear and unequivocal" requirement to trigger the limitation period - The Director's Delegate's decision met the reasonableness standard - See paragraphs 35 to 50.
Insurance - Topic 5076
Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Limitation period - [See Insurance - Topic 5062.2 ].
Insurance - Topic 5077
Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Notice of refusal or termination of benefits - [See Insurance - Topic 5062.2 ].
Insurance - Topic 5080
Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Appeals or judicial review - At issue on the insurer's application for judicial review was whether the two year limitation period set out in s. 281.1(1) of the Insurance Act applied to the insurer's refusal of a catastrophic impairment determination application and whether the insurer's letter was a "clear and unequivocal" refusal of benefits - The Ontario Divisional Court held that the standard of review was reasonableness - The court rejected the insurer's argument that there was a concurrent jurisdiction between the tribunal and the court that rebutted the presumption of a reasonableness standard - The mere fact that a court might be called on to interpret the same legislative provision as an administrative body did not automatically displace the presumption of deference - Further, the strong privative clause in s. 20 of the Act and the case law pointed to the reasonableness standard - Finally, the issue here was not a "general question of law" attracting a correctness standard, but a "nuts and bolts" interpretation question within a highly factual context - See paragraphs 16 to 32.
Cases Noticed:
Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, dist. [para. 17].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 19].
Aviva Canada Inc. et al. v. Pastore (2012), 296 O.A.C. 281; 112 O.R.(3d) 523; 2012 ONCA 642, refd to. [para. 22].
State Farm Mutual Automobile Insurance Co. v. Federico et al., [2014] O.A.C. Uned. 103; 2013 ONSC 109, refd to. [para. 22].
Gordyukova v. Certas Direct Insurance Co. et al. (2012), 295 O.A.C. 392; 112 O.R.(3d) 446; 2012 ONCA 563, refd to. [para. 25].
McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 30].
McLinden v. Payne, [2010] O.T.C. Uned. 6868; 2010 ONSC 6868, dist. [para. 36].
Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 39].
Shannahan and Optimum Frontier Insurance Co., [2005] O.F.S.C.D. No. 41; FSCO A04-000965, refd to. [para. 41].
Bains and RBC General Insurance Company, [2010] O.F.S.C.D. No. 65; FSCO P09-00005, refd to. [para. 41].
Statutes Noticed:
Insurance Act, R.S.O. 1990, c. I-8, sect. 281.1(1) [para. 8].
Authors and Works Noticed:
Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 399 [para. 39].
Counsel:
Alexander W. Neaves, for the applicant;
Samia Alam, for the respondent, Dong Do;
Deborah McPhail and Joe Nemet, for the respondent, Financial Services Commission of Ontario.
This application was heard on February 17, 2015, by J. Wilson, Harvison Young and Tzimas, JJ., of the Ontario Divisional Court. On April 14, 2015, Harvison Young, J., delivered the following reasons for decision for the court.
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Penney v. The Co-operators General Insurance Company,
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Security National Insurance Company v. Kumar, 2018 ONSC 3556
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Insurers Continue Success With Limitation Period Defences
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