



COURT OF APPEAL FOR ONTARIO

CITATION: Bustamante v. The Guarantee Company of North
    America,

2015 ONCA 530

DATE: 20150713

DOCKET: C59839

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

BETWEEN

Angela Bustamante

Plaintiff (Appellant)

and

The Guarantee Company of North America

Defendant (Respondent)

Andrew L. Rudder, for the appellant

Rose Bilash and Caroline Theriault, for the respondent

Heard: July 8, 2015

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated December 4, 2014.

ENDORSEMENT

[1]

The motion judge granted summary judgment, dismissing the appellants
    claim for statutory accident benefits as time-barred. She appeals.

[2]

The appellant was involved in a car accident on June 3, 2004.  At the
    time of the accident, she worked as a hairdresser.  The appellants insurance
    policy provided for statutory accident benefits as set out in the
Statutory
    Accident Benefits Schedule
, O. Reg. 403/96 (the SABS).

[3]

On August 18, 2004, the appellant, then represented by counsel, filed an
    Application for Accident Benefits (OCF-1) and a Disability Certificate (OCF-3)
    with the respondent insurer.  The respondent sent the appellant an Election of
    Benefits form (OCF-10).  The appellant returned the OCF-10 on August 20, 2004,
    indicating she elected income replacement benefits as opposed to non-earner
    benefits.

[4]

On September 1, 2004, the respondent, based on the appellants
    information that she was employed at the time of the accident, was disabled,
    and had elected the income replacement benefit  advised the appellant via an
    Explanation of Benefits form (OCF-9) that it would pay weekly income
    replacement benefits of $344.87.  The respondent also told the appellant that
    she did not qualify for the non-earner benefit, which would have paid $185 per
    week, as she qualified for the income replacement benefit.  In addition, the
    OCF-9 contained information concerning the criteria, including timelines, for
    disputing the refusal of non-earner benefits.

[5]

A post-104 week disability assessment found that the appellant no longer
    met the disability test for entitlement.  As a result, the respondent stopped
    paying the benefits on July 26, 2006.

[6]

The appellant returned to work in September of 2006.

[7]

Over three years later, on September 25, 2009, counsel for the appellant
    notified the respondent that the appellant intended to pursue a claim for
    non-earner benefits.  Her lawyers letter took the position that there had been
    no denial of non-earner benefits and the limitation period had not started to
    run.

[8]

The respondent, in a series of letters over the following several
    months, asked the appellant for an updated disability certificate and
    documentation pursuant to s. 33 of the SABS.  The appellant failed to respond.

[9]

The respondent advised the appellant by letter dated January 19, 2010
    that she was not entitled to non-earner benefits. The respondent also provided
    the appellant with a notice with respect to her right to dispute the refusal.

[10]

On
    June 17, 2011, the appellant sought mediation with the Financial Services
    Commission of Ontario.  The parties were unable to resolve their dispute and
    the appellant initiated a claim against the respondent on November 28, 2012,
    claiming damages for breach of contract in refusing accident benefits and for
    mental distress.

[11]

The
    respondent moved under Rule 20 for summary judgment to dismiss the appellants
    action. In reasons dated December 4, 2014, the motion judge granted summary
    judgment and dismissed the action on the basis that the limitation period for
    the appellants claim to non-earner benefits began either on September 1, 2004
    when the non-earner benefits were refused or on July 26, 2006 when the income
    replacement benefits were discontinued.  In either case, the appellant failed
    to bring her action within two years.

[12]

We
    agree that the appellants claim for non-earner benefits is time-barred.

[13]

The
    OCF-9 explained the appellants right to dispute the insurers assessment of her
    claim and to have the claim addressed through mediation followed by
    arbitration, litigation or neutral evaluation. At the bottom of the page, under
    the heading, WARNING: TWO YEAR TIME LIMIT, it explained she had two years
    from the insurers refusal to pay a benefit, or from reduction of a benefit, to
    arbitrate or commence a lawsuit.

[14]

As
    previously mentioned, the respondent terminated the appellants income
    replacement benefits on July 26, 2006.  The appellant did not re-assert a claim
    for non-earner benefits until June 17, 2011 when she sought mediation, a time
    well in excess of two years following the termination of benefits. Even her
    letter dated September 25, 2009, in which she informed the respondent that she
    wished to pursue non-earner benefits, was delivered two years after the
    respondent terminated her benefits.

[15]

Section
    281.1(1) of the
Insurance Act
, R.S.O. 1990, c. I.8, and s. 51(1) of
    the SABS establish a two-year limitation period for the commencement of
    litigation or arbitration after the insurers refusal to pay a benefit claimed.

[16]

The
    appellants submission before the motion judge and in this court is that the
    respondent cannot rely on its September 1, 2004 denial of the non-earner
    benefit as triggering the limitation period as she was not eligible for the
    non-earner benefit at that time. Effectively, the appellants position is that
    the limitation period for the non-earner benefit did not run during the period
    when she was entitled to the income replacement benefit.

[17]

This
    argument cannot succeed in the light of this courts decisions in
Sietzema
    v. Economical Mutual Insurance Company
, 2014 ONCA 111, 118 O.R. (3d) 713,
    and
Sagan v. Dominion of Canada General Insurance Co.
, 2014 ONCA 720,
    123 O.R. (3d) 314.

[18]

The
    facts in
Sietzema
are on all fours with those in this case.  There,
    the claimant applied for and received income replacement benefits.  She was
    denied her claim for non-earner benefits. The claimant received her income
    replacement benefits and then more than two years after they were denied, she
    sued her insurer for non-earner benefits.

[19]

This
    court upheld the summary judgment dismissing the claimants claim on the basis
    that it was brought outside the limitation period, reasoning that the refusal
    to pay non-earner benefits in the OCF-9 triggered the limitation period in s.
    51(1) of the SABS, which required mediation to be commenced within two years
    after the insurers refusal to pay the amount claimed.

[20]

In
    response to the appellants argument that the start of the limitation period
    for the non-earner benefit does not start to run during the period when she was
    entitled to the income replacement benefit, we repeat and reinforce what this
    court said in
Sietzema
, at para. 16: If we accepted the appellants
    argument, the limitation period for making a claim for Non-Earner Benefits
    never began to run. This would defeat one of the primary purposes of the SABS
    regime, namely, to ensure the timely submission and resolution of claims for
    accident benefits.

[21]

Here,
    as in the cases noted above, by providing the OCF-9 to the appellant, the
    respondent gave clear notice of the appellants rights to mediation, followed
    by arbitration, litigation or neutral evaluation if she wished to dispute the
    refusal or reduction of benefits. It also gave her clear notice of the two-year
    limitation period. The respondents refusal to pay non-earner benefits in the
    OCF-9 triggered the limitation period in s. 51(1) of the SABS.

[22]

For
    these reasons the appeal is dismissed.  In accordance with counsels agreement,
    the respondent is entitled to its costs of the appeal fixed at $6,000,
    including disbursements and HST.

Alexandra Hoy A.C.J.O.

Gloria Epstein J.A.

Grant Huscroft J.A.


