2013 ONSC 4178, 2013 ONSC 4178

CITATION : Mark Anthony White and Intact Insurance Company, 2013 ONSC 4178 COURT FILE NO.: 10-23929 DATE: 2013-07-04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) MARK ANTHONY WHITE ) ) ) Jane Poproski, for the Plaintiff/Respondent ) Plaintiff ) ) - and - ) ) ) INTACT INSURANCE COMPANY ) ) ) Jasmina Mrkalj-Skelly, for the Defendant/Applicant ) Defendant ) ) ) ) HEARD: 2, May, 2013 ENDORSEMENT CRANE, J. [ 1 ] The defendant Intact Insurance Company moves for an order pursuant to Rule 20 of the Rules of Civil Procedure granting a

summary judgment dismissing the action of the plaintiff in whole or in part. Overview

[ 2 ] The plaintiff, Mark White, was a passenger involved in a single motor vehicle accident on May 22, 2004. The vehicle was operated by Russell Mannen. It was owned by Kimberly Mannen, who it appears on this record to have been insured under a motor vehicle accident policy issued by Wawanesa Insurance Company. Mr. White was not a name insured in a policy of motor vehicle insurance.

Audrey White, his mother, did hold a policy of automobile insurance with ING Insurance Company of Canada, subsequently merging into the named defendant herein, Intact Insurance Company. [ 3 ] The action that is the subject of this motion to dismiss was commenced by Mark White by a Statement of Claim issued on 19, November, 2010. [ 4 ] Paragraph 1(

a) of the Statement of Claim seeks damages for breach of a contract of insurance on an alleged failure of the defendant to recognize a claim and to pay to the plaintiff Statutory Accident Benefits pursuant to Ontario Regulation 403/96 , “Statutory Accident Benefit Schedule-Accidents in effect on or after 1, November, 1996” (hereinafter “the SABS”). The specific claim is made for weekly “non-earner benefits” commencing from November, 2006 and continuing to the Mediation Report of 31, August, 2010 and thereafter, as is provided under the SABS to persons qualified and insured with the defendant.

Position of the Applicant [ 5 ] The defendant raises two issues on this motion, namely that the plaintiff was not a dependent and therefore not an insured person and that, in any event, the plaintiff failed to claim statutory accident benefits within the timelines specified by the SABS, or alternatively, within a reasonable time following the subject accident, either by submitting an executed Application for Accident Benefits Form (OCF-1) to the defendant,, by submitting a Disability Certificate, or otherwise. (paragraph 6 of the Motion Record). [ 6 ] The defendant/applicant states its case in its Notice of Motion, paragraphs 7 through 9, as follows: 7.

On or about November 1, 2012, Plaintiff Counsel forwarded a copy of OCF-1 on behalf of the Plaintiff. This OCF-1 was signed by Plaintiff’s counsel and was dated October 26, 2012, more than 8 years post-accident; 8. The Plaintiff has not provided any reasonable explanation for the delay in claiming for Statutory Accident benefits. The Plaintiff has not complied with his obligations under the SABS regarding his application for benefits and is therefore not entitled to Statutory Accident Benefits as claimed; 9.

As Intact never received an application for Statutory Accident Benefits from the Plaintiff, the Plaintiff’s claim for non-earner benefits and damages for bad faith, etc. are not genuine issues requiring trial. Position of the Respondent [ 7 ] The respondent in his factum submits that pursuant to the SABS,

section 2, an insured person is defined to include a dependant of the named insured who has been involved in a motor vehicle accident. The second issue in response to the motion is the submission that the applicant insurer is in breach of SABS, s. 32(2) and therefore the plaintiff’s obligation to file a timely application has never commenced, there being no limitation period extent. [ 8 ] I quote here the provisions of The

Schedule that are central to this motion:

PART VIII Procedures For Claiming Benefits 32.

(1) A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. O. Reg. 34/10 , s. 32(1) .

(2) The insurer shall promptly provide the person with, (

a) the appropriate application forms; (

b) a written explanation of the benefits available; (

c) information to assist the person in applying for benefits; and (

d) information on the election relating to income replacement, non-earner and caregiver benefits, if applicable. O. Reg. 34/10 , s. 2(2) .

(5) The applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. O.Reg. 34/10 , s. 32(5) .

[ 9 ] It is the submission of the respondent that the applicant insurer failed to provide the appropriate forms and information for the application for benefits to the respondent. Accordingly, under this submission, the respondent is relieved of the provisions of section 32(3), the requirement that an application for a SABS benefit be made within 30 days of receiving the materials described in section 32(2).

The respondent further submits (perhaps whimsically as there is no evidence) that in 2004 the claims examiner acting on behalf of the applicant “knew of an intention to claim.” [ 10 ] The plaintiff bringing this action must establish that at the time of the motor vehicle accident of May 22, 2004 he was a non- named dependent under the policy of his mother, Audrey White, entitled thereby to claim accident benefits. [ 11 ] The plaintiff now sues for an accident benefit, namely the “non-earner benefit”.

To qualify for this benefit the plaintiff must be an insured of the defendant and must establish that he meets the requirements of the SABS, s. 12. Central to this issue is s. 12(1), I quote: The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured persons satisfied any of the following conditions: 1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. 2.

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and, i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or ii. completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training. O. Reg. 24/10 , s. 12(1) .

Application of Court Powers [ 12 ] The record on this motion is comprehensive such that the full appreciation of the evidence and issues that is required to make dispositive findings may be achieved by way of

summary judgment. Findings of Fact [ 13 ] The evidence of events commences with a memorandum of a call by Audrey White to advise her insurer of a motor vehicle accident involving her son. This telephone call was made on 4 November, 2004 and duly recorded by the defendant’s claims examiner. [ 14 ] Each counsel relies on the Memorandum of Events written by the defendant’s claims examiner, Ms. Natasha Eadie, (Exhibit 8 to the affidavit of the respondent Mark White, Responding Motion Record, Volume 1). [ 15 ] The evidence of Ms. Eadie, supra, is unchallenged.

It is convincing on its face and it was confirmed through the analysis of all of the evidence on this record. The notations were made contemporaneously to the events and long before any dispute arose between the parties. [ 16 ] The plaintiff has not submitted an OFC-1 Application pursuant to s. 32 of the SABS. Nor has he made any application to the defendant for an Accident Benefit, yet he has commenced and is prosecuting this action through his lawyer, Mr. Ferro, a specialist in the litigation of motor vehicle accident insurance claims, (more on this later). [ 17 ] The Claims Notes of Ms.

Eadie establishes: 1) Audrey White provided first notification of a motor vehicle accident involving her son, Mark White by telephone call on 4, November, 2004, more than 5 months after the accident; 2) That Ms. White and Natasha Eadie spoke by telephone several times during November 2004, during which; 3) Ms. Eadie explained the process of claim and AB applications to Ms. White; 4) That Mark White was sent the standard Accident Benefits package by letter dated 5, November, 2004 5) That Ms. Eadie met with Mark and Audrey White on 23, November, 2004 at Brantford for the purpose of taking a statement from Mr.

White, during which; 6) Ms. White advised that they had retained a lawyer, Mr. Ferro; 7) That Ms. Eadie telephoned to Mr. Ferro’s office on 23, November, in the presence of Audrey and Mark White and asked if she was to proceed or to re-schedule;

8) That Ms. Lambert of Mr. Ferro’s office required the meeting to be at their law office and that she would re-schedule; 9) That the Ferro law office had taken responsibility for the relationship between the insured and the insurer. 10) That Ms. Eadie mailed a series of letters to Mark White, copied to Ms. Lambert from November through to April, 2005, all advising of the necessity to apply if an Accident Benefit is to be claimed 11) That no reply came to Ms.

Eadie, or anyone else at the defendant insurer; 12) That the insurer closed its file in or about April, 2005. [ 18 ] I conclude from all the evidence that Mr. White and his mother, Audrey White, knew through their lawyer and on the direct communication of Ms. Eadie that should Mr. White be an insured under his mother’s insurance policy, he was entitled to make an application for Accident Benefits, following which the insurer was entitled to inquire of his circumstances. [ 19 ] I find further that the respective reasoning of Mr. White and Mrs.

White in their affidavits that because they purportedly changed address in Brantford they would not have received the AB package or any of the letters of Ms. Eadie as above-noted, to be a specious speculation created as an attempted defence to this motion. [ 20 ] Mr. White was examined for discovery. He stated that he got on well with his mother’s boyfriend with whom he and his mother and his siblings resided. I concluded from his examination for discovery that Mr.

White did not change his residence in November- December, 2004 from 35 Spring Street and in any event, there was no reason that he would not receive his mail. [ 21 ] It is of significance given the importance to the respondents defence that the AB package was not received, that there is an absence of evidence from Keith Johnson that he suppressed Mark’s mail or alternatively, evidence of a failed attempt to obtain this evidence. [ 22 ] I find that the evidence is conclusive that Mr.

White (and his mother on his behalf) had no intention that an AB claim would be made to the defendant ING Insurance, now Intact Insurance Company. The defendant had written to the plaintiff and his lawyer Mr. Ferro.

In letters dated 11 December 2004; 5 January, 2005 and 3 February, 2005, indicating that no accident benefit claim had been received and that the file would be closed with the aforesaid letter of 3 February, 2005, citing the requirements under s. 33 of the SABS to return an OCF-1 Application. [ 23 ] There is considerable evidence that at the time of the motor vehicle accident, Mark White was 18 years old, employed on a full- time basis. Reasonable Explanation [ 24 ]

Section 31 of the SABS provides that failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation. I would understand the time limit under

Part VIII, s. 32(1).1.(

b) requires the insured person to notify the insurer not later than the seventh day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practical after that day. I would find that Mr. White and his mother, Audrey White, would be aware of an entitlement to claim a non-earner benefit is based on total incapacity, should such condition possibly exist, certainly by November of 2004 when they first contacted Mrs. White’s motor vehicle Insurance Company. [ 25 ] What then is the explanation? [ 26 ] The first explanation from each of Mr. White and Mrs.

White is that they were not aware of an entitlement to claim. I have earlier in these reasons dismissed this as a self-serving statement with no basis in fact, made to defeat this motion. The second explanation is made by Mrs. White in her affidavit to the effect that she did make an AB Application delivered by her personally at an ING Insurance office on George Street in Brantford. There is evidence that such an office never existed.

Further, if an application was delivered to a previously existing insurance office of TD Insurance, the legislation is clear that TD Insurance would have an obligation to deal with it. There is no evidence that TD Insurance has ever received such an application nor any evidence of an attempt by the respondent’s lawyers to obtain such evidence. [ 27 ] Thirdly, on the sworn evidence of Mr. White at his examination for discovery he stated that he has never signed an application for AB Benefits nor is he aware of any application having been made.

Prejudice [ 28 ] In considering the reasonableness of an explanation the Court is to consider any possible prejudice that may inure to the defendant. In this case, real prejudice to the defendant/applicant is manifested both as to the circumstances of dependency in the determination of Mr. White as an insured. There is evidence that at the time of the motor vehicle accident the plaintiff was independent, an adult and fully employed with an employer that later moved to Mexico. Further, and more central to the motion, the SAB

Schedule mandates investigations by an insurer, examinations of the insured under oath or solemn declaration, medical records, and medical examination, specifically to found the claim of the required Certificate of Disability. I would conclude that the defendant is no longer able to exercise its statutory rights of investigation and determination due to the passage of that time entirely under the control of Mr. White and his solicitor. [ 29 ] I conclude on all of the evidence that not only is there no reasonable explanation for a claim asserted only by a letter of Mr. Ferro

dated March 5, 2008, with no follow-up until December 2009, then an OFC-I dated 26 October, 2012 signed by the plaintiff’s counsel. There is in fact no explanation given pursuant to s. 31 of the SABS. Determination [30] I grant the motion for

summary judgment dismissing the claim for non-earner statutory benefits. [31] I conclude that the breach of faith and due diligence claims corollary to the Accident Benefit Claim cannot stand on any basis offact given the finding that Mr. White never made a claim. Accordingly there was no opportunity for the defendant to knowingly abuseor to negligently mishandle a non-existent claim. In addition, the claims are out of time Arsenault v. Dumfries Mutual, (2002) (ON CA), 57 O.R. (3d) 625 (C.A.). [32] The corollary claims are dismissed and accordingly the action is dismissed in entirety.

Costs [33] Parties may make written submissions to me on the issue of costs not later than 30 days from this date. ___________________________ CRANE, J. Released: July 4, 2013 CITATION: Mark Anthony White and Intact Insurance Company, 2013 ONSC 4178 COURT FILE NO.: 10-23929 DATE: 2013-07-04

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MARK ANTHONY WHITE Plaintiff/Respondent - and – INTACT INSURANCE COMPANY Defendant/Applicant ENDORSEMENT CRANE, J. DSC:mw Released: July 4, 2013