[10] On July 10, 2012, a statement of claim was issued claiming inter alia non-earner benefits. The only real issue on this motion is whether this claim is barred by the limitation set out in s.281.1 of the Insurance Act.
[11] I am guided by two judgments of the Ontario Superior Court of Justice. They are Katanic v. State Farm Mutual Automobile Insurance Co., [2013] O.J. No. 3605 and Seitzema v. Economical Insurance, 2013 ONSC 4299 (CanLII), 2013 ONSC 4299.
[12] Both cases address the limitation period. In Katanic, Madam Justice Milanetti, at paras. 25-26 stated:
25 Limitations are important. They provide certainty; ensure that evidence is maintained; and ensure that plaintiffs do not sleep on their rights. This is particularly so when they are represented by counsel.
26 In the case before me, the denial was made, an explanation was given in clear and straightforward language, and dispute mechanisms and timeframes were provided. The plaintiff appears to have legal representation at the time of these events.
[13] At para. 36, Madam Justice Milanetti continued:
Mr. Katanic had a denial (even if considered premature) when he had counsel who would be deemed to have known that it was premature, yet nothing was done until March 2010 (Mediation application), and November 21, 2011 (Statement of Claim). Even if the claim crystallized on December 7, 2006 (26 weeks post accident), the claim is commenced well past the statutory limitation periods of two years or December 7, 2008.
[14] Madam Justice Milanetti delivered summary judgment in favour of the insurer. The same issues were before Mr. Justice Sloan in the case of Seitzema v. Economical Insurance. In that case, the plaintiff received a Form (OCF-9) Explanation of Benefits Payable by Insurance Company dated December 19, 2005. The form indicated she was not eligible for non-earner benefits, though there was an ambiguity with respect to her entitlement to receive those non-earner benefits. In 2006, the plaintiff retained counsel to advise her with respect to her rights, with respect to the 2005 motor vehicle accident.
[15] At para. 21, Mr. Justice Sloan stated:
Once the plaintiff retained a lawyer to seek advice on her rights, she can no longer plead ignorance or that Part 3 of The Form was misleading to her personally because she was unsophisticated with respect to auto insurance.
[16] Mr. Justice Sloan continued at para. 22:
Her lawyer would have known sometime in early 2006 that limitation periods were running. Absolutely no explanation was given to this court to explain why the lawyer did not file anything until he filed for mediation in April, 2010.
[17] Given her representation by counsel, Mr. Justice Sloan dismissed the plaintiff’s action and her request to amend her statement of claim.