



COURT OF APPEAL FOR ONTARIO

CITATION: Allstate Insurance Company of Canada v. Klimitz,
    2015 ONCA 698

DATE: 20151019

DOCKET: C60323

Feldman, Juriansz and Brown JJ.A.

BETWEEN

Allstate Insurance Company of Canada

Appellant

and

Edna Klimitz and the Financial Services
    Commission of Ontario

Respondents

Todd J. McCarthy and Candace Mak, for the appellant

Jillian Van Allen, for the respondent Edna Klimitz

No one appearing for the respondent the Financial
    Services Commission of Ontario

Heard: September 29, 2015

On appeal from the judgment of the Divisional Court (Associate
    Chief Justice Frank N. Marrocco and Justices James M. Spence and Carolyn J.
    Horkins), dated December 12, 2014, with reasons reported at 2014 ONSC 7108,
    dismissing an application for judicial review of a decision of the Financial
    Services Commission of Ontario, dated March 21, 2013.

ENDORSEMENT

[1]

The appellant, Allstate Insurance Company of
    Canada, appeals from the judgment of the Divisional Court dismissing its
    application for judicial review of the decision of the Directors Delegate,
    Lawrence Blackman, dated March 21, 2013.  The Directors Delegate had allowed
    the appeal of the respondent, Edna Klimitz, from the April 13, 2012 order of an
    Arbitrator at the Financial Services Commission of Ontario.  The Arbitrator found
    that the respondent was precluded from proceeding to arbitration because she
    had filed her application for mediation more than two years after the appellants
    refusal to pay her a non-earner benefit, contrary to the requirements of s. 281.1(1)
    of the
Insurance Act
,
    R.S.O. 1990, c. I.8.

[2]

In its May 31, 2004 OCF-9, Explanation of
    Benefits Payable by Insurance Company, the appellant provided the respondent
    with its reasons for denying her application for non-earner benefits under the
Statutory Accident Benefits Schedule
- Accidents on
    or After November 1, 1996
, O. Reg. 403/96 (the
    Regulation).  In its reasons, the appellant expressly relied on evaluations
    of the respondent made by two physicians, one of whom was Dr. Garry Moddel. 
    The appellant stated in its OCF-9:

A recent insurers neurological evaluation and
    a previous insurers orthopaedic evaluation have determined that you do not
    suffer from a complete inability to carry on a normal life due to any
    impairment susta
[
i]ned in the accident of November 7,
    2003.  Therefore, you do not qualify for a Non-Earner Benefit.

[3]

The appellant sent the OCF-9 to respondents
    counsel under the cover of a letter dated May 31, 2004.  Although that letter
    purported to enclose Dr. Moddels evaluation, there is no dispute that the
    evaluation in fact was not included with the letter and OCF-9.

[4]

We agree, for the reasons given by the
    Divisional Court, that it was not unreasonable for the Directors Delegate to
    conclude, in the circumstances of this case, that the two year limitation
    period did not start to run until the respondent had received a copy of Dr.
    Moddels report in satisfaction of Allstates obligation to give reasons for
    its determination under s. 37(1) of the Regulation, as it then read (now
    incorporated, in part, in s. 35(9)).
[1]
The Directors Delegate was entitled to deference in the interpretation of his
    home statute. We are not persuaded the decision was inconsistent with this
    courts decision in
Turner v. State Farm Mutual Automobile Insurance
    Co
.,
26 Admin. L.R. (4th) 275
or
Sietzema
    v. Economical Mutual Insurance Company
, 2014 ONCA 111, 118 OR (3d) 713
.

[5]

The respondent is entitled to her costs of the
    appeal in the amount of $3,500, inclusive of disbursements and HST.

K. Feldman J.A.

R.G. Juriansz J.A.

David Brown J.A.





[1]
At the time of the respondents accident, s. 37(1) of the Regulation read:

37. (1) If the insurer
    determines that a person is not entitled or is no longer entitled to receive an
    income replacement, non-earner or caregiver benefit, the insurer shall give the
    person notice of its determination, with reasons,

(a) within 14 days after
    receiving an application for the benefit; or

(b) if the insurer has been
    paying the benefit to the person, no later than the date the next payment of
    the benefit is due.

Currently,
    s. 35(9) of the Regulation reads as follows:

35. (9) The insurer shall set out in its determination
    the specified benefits and expenses the insurer agrees to pay, the
    specified benefits and expenses the insurer refuses to pay and the reasons
    for the insurers decision.


