https://www5.fsco.gov.on.ca/AD/5132
The Applicant, Mr. Dharam Sidhu, was injured in a motor vehicle accident on August 4, 1990 (“1990 accident”) and in 2014, sought accident benefits in the nature of weekly income replacement benefits, interest and expenses from Aviva Canada Inc. (“Aviva”).[1] The parties were unable to resolve their disputes through Mediation, and the Applicant, through his representative, applied for Arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended (“Insurance Act”) (FSCO A14-005391).
The Applicant was also injured in a motor vehicle accident on January 19, 1996 (“1996 accident”) and in 2014, sought accident benefits in the nature of weekly income replacement benefits, weekly loss of earning capacity benefits, supplementary medical expenses and a special award from Aviva. The parties were unable to resolve their disputes through Mediation, and the Applicant, through his representative, applied for Arbitration at FSCO under the Insurance Act (FSCO A14-009047). The two Arbitrations are treated as related files heard together.
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I have no doubt on the evidence that an ordinary reasonable person with the accident history and access to legal advice of this Applicant could have concluded that, if he had a genuine dispute with the DAC Assessment and the denial of benefits, he had to take some steps, at least to Mediation. But how much more depth there was to his knowledge is pure speculation. The Insurer in the Golic decision wrote a much more extensive description of process and referred to the Insured’s previous history of participating in two Mediations under the Insurance Act. The letter in Golic also referred to the sections of the Insurance Act and the steps in the event the Mediation failed.
While I recognize the concern that an Insured might undermine the consumer protection principles of the legislation by not pursuing his or her rights promptly, limitation provisions should be strictly construed, and a layman’s language notice of the limitation period in which to bring his claim and the process following the Mediation open to him was specifically absent in the documentation provided to this Applicant. I distinguish this case from Golic on the basis of the contents of the notices and correspondence.
Therefore, I find that Aviva failed to establish that it met the requirements set out in Smith v. Co-operators of setting out in straightforward and clear language either the time limits or the process available to the Applicant.