November 26, 2012

Accident Benefits Update – Court of Appeal Rules the Actions Can Start at End of 60 Day Period


For the week of November 26 to November 30, 2012 

Court of Appeal rules that actions can start at end of 60 day period
Hurst v. Aviva Insurance Company2012 ONCA 837; Ontario Court of Appeal, November 29, 2012,Simmons, Juriansz and Epstein JJ.A.
The Court of Appeal ruled today that the statutory scheme for mandatory mediation has strict time lines. An insured cannot issue a claim or application for arbitration until after filing an application for mediation, and 60 days has passed. It does not matter if the mediation had not occurred in that time frame, nor whether or not the report of mediator has been issued.
The Court stated at paragraph 54:
What can be said is that in light of the decision in these appeals, insured persons will either agree to extend the time for mediation beyond the time prescribed or they will not. It is a fair inference that those who refuse to extend the time for mediation do so because they wish to commence court actions or apply for arbitration. If they neglect doing so and commence an action two years after the refusal of benefits, s. 281.1(1) would apply to bar the action. On the other hand, those who agree to extend the time for mediation would eventually have their cases mediated by FSCO. If mediation subsequently fails, a mediator’s report would be issued, and the parties would quite properly be able to rely on s. 281.1(2)(b). In either eventuality, there would be no prospect of a perpetual limitation period.
The Court concluded:
The legislative scheme for resolving disputes about statutory accident benefits requires that insured persons resort to a mandatory mediation process before commencing a court proceeding or submitting their disputes to arbitration. The Act, the regulations and the DRPC make it clear that this process is intended to be completed within 60 days from the filing of an application for mediation with FSCO, unless the parties agree to an extension of time. The scheme postpones the right of insured persons to commence civil actions against their insurer in order to allow the mediation process to be completed within the time prescribed, but leaves them free to commence actions once that period has expired.
Accessing This Decision:
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