



COURT OF APPEAL FOR ONTARIO

CITATION:
Hammond v. State
    Farm Automobile Insurance Company,

2012 ONCA 704

DATE: 20121019

DOCKET: C55047

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Kiera Hammond

Plaintiff/Appellant

and

State Farm Mutual Automobile Insurance Company

Defendant/Respondent

William G. Scott, for the plaintiff/appellant

Paul Pape, for the defendant/respondent

Heard and released orally: October 12, 2012

On appeal from the judgment of Justice A.C.R. Whitten of
    the Superior Court of Justice, dated January 23, 2012.

ENDORSEMENT

[1]

This matter arose on a summary judgment motion. The appellant does not
    dispute the respondent's assertion that the parties asked the motion judge to
    make the necessary findings of fact. We proceed on the basis that the appropriate
    standard of review is palpable and overriding error with respect to the motion
    judges findings of fact.

[2]

The motion judge dismissed the appellants claim on the basis that it
    was statute barred by a limitation period. The appellant commenced an action on
    August 17, 2007, claiming non-earner benefits under the Statutory Accident Benefits
    Schedule. The accident occurred on May 31, 1997. The motion judge found that
    the respondent insurer had denied the benefits on October 22, 2003.

[3]

Section 281.1 of the
Insurance Act
requires that a court
    proceeding be commenced within two years after the insurers refusal to pay the
    benefits claimed, and despite this within 90 days after the failure of
    mediation. Mediation in this case failed on June 29, 2004. The motion judge
    found the action was statute barred because the court proceeding was commenced
    some four years after the insurers refusal and some three years after the
    failure of mediation.

[4]

The appellant submits that the limitation period in s. 281.1(1) of the
Insurance
    Act
has not begun to run because the insurer has not complied with s. 49
    of the SABS which requires the insurer, when giving notice of its refusal to
    provide benefits, to inform the claimant of the procedure for resolving
    disputes relating to benefits. The information required to be included is set
    out in the OCF-9 form.

[5]

The motion judge found that the insurer's letter dated October 22, 2003,
    admittedly received by the appellant's lawyer, included the OCF-9 form. We
    agree with respondent's counsel that the motion judge did not accept the
    affidavit filed by the appellant's then lawyer, because it baldly denied
    receipt of the OCF 9 form, on the basis that it had not been scanned by the law
    firms' staff. The motion judge also relied on the appellant's application for
    mediation and the evidence filed by the insurer in concluding proper notice was
    given. While the motion judge did go on to misunderstand some correspondence
    between the parties, we are of the view it did not animate his decision.

[6]

The motion judges conclusion was well supported by the evidence. This
    ground of appeal fails.

[7]

The appellant accepts that notice to her lawyer constituted notice to the appellant.

[8]

In the result, the appeal is dismissed with costs to the respondent
    fixed in the amount of $6,000 all inclusive.

D. OConnor A.C.J.O.

S.T. Goudge J.A.

R.G. Juriansz J.A.


