) ) Tanya Seitzema Plaintiff – v. –, 2013 ONSC 4299

CITATION : Seitzema v Economical, 2013 ONSC 4299 COURT FILE NO.: 11-26876 DATE: 2013-06-21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Tanya Seitzema Plaintiff – and – Economical Insurance Defendant ) ) ) ) ) ) ) ) ) Jane Poproski, Counsel for the Plaintiff John Bradbury, Counsel for the Defendant ) ) ) HEARD: June 19, 2013 The honourable mr. Justice J.W. Sloan [ 1 ] The defendant brings this motion for

summary judgment to dismiss the plaintiff’s claim as being statute barred. [ 2 ] The plaintiff was involved in a motor vehicle accident on November 11, 2005. [ 3 ] The plaintiff made application, pursuant to the Statutory Accident Benefit

Schedule (SABS) of her automobile insurance, for Income Replacement Benefits on November 25, 2005. [ 4 ] The plaintiff received a Form (OCF-9) Explanation of Benefits Payable by Insurance Company dated December 19, 2005 (The Form).

Part 2 of The Form approved her weekly Income Replacement Benefits and

Part 3 of The Form indicated that she was not eligible for Non-Earner Benefits. [ 5 ]

Part 3 of The Form went on to explain: “You were employed at the time of the accident and therefore don't meet the requirements under

section 12 of the SABS for Non-Earner Benefits.” [ 6 ] The plaintiff returned to work on February 13, 2006 and the defendant terminated her Income Replacement Benefits on March 2, 2006.

The plaintiff did not dispute the termination of Income Replacement Benefits and in fact, it was not until sometime in early 2010 that the defendant received a letter from the plaintiff's lawyer requesting Non-Earner Benefits. [ 7 ] This was the first time the defendant had heard from the plaintiff since 2006 except for some prescription claims. [ 8 ] In the cross examination of the plaintiff held on May 23, 2013, she confirmed in her answers to a series of questions from 81 to 93, that she hired her current law firm Ferro and Company in January of 2006. [ 9 ] On April 10, 2010 the plaintiff filed for mediation with FSCO. [ 10 ] In FSCO's mediation report dated March 15, 2011 they indicate that the sole dispute is the Non-Earner Benefits. [ 11 ] A Statement of Claim was issued by the plaintiff on April 14, 2011. [ 12 ] The Limitations Act of Ontario ,

Section 281.1 under the Insurance Act R.S.O. 1990,

Chapter I.8 and

Section 51 of the Statutory Accident Benefits

Schedule all speak to a two year limitation period. [ 13 ] The plaintiff’s main argument is that the plaintiff must know that she has a right to make a claim before the time limitation starts to run. [ 14 ] She argues in this case that

Part 3 of The Form informed her that she was not eligible for Non-Earner Benefits because she was employed at the time of the accident. [ 15 ] She submits that the only conclusion she could come to, based on

Part 3 of The Form, was that she could never apply for Non-Earner Benefits because she was employed at the time of the accident. [ 16 ] The plaintiff argues that although the decision to award her Income Replacement Benefits and not award her Non-Earner Benefits was correct, the reason for doing so by the defendant was not correct. She submits that the reason she was not eligible for Non-

Earner Benefits was because on December 19, 2005 she was receiving Income Replacement Benefits and you can't get both benefits at the same time. [ 17 ] The plaintiff submits that by giving the wrong reason for her being denied Non-Earner Benefits she was misled as to what rights she may have had to benefits and in particular the Non-Earner Benefits. [ 18 ] Although the plaintiff personally may have been inadvertently misled by

Part 3 of The Form, she hired a lawyer in 2006 to specifically advise her with respect to her rights as a result of the 2005 motor vehicle accident. This of course would include her rights under the SABS, which include Non-Earner Benefits. [ 19 ] The question is when the plaintiff knew or should have known of her right to mediation of her denial of Non-Earner Benefits and/or her cause of action. [ 20 ] She received The Form dated December 19, 2005, informing her that she would receive income replacement benefits up until March 2, 2006 and not after that date.

Her Income Replacement Benefits were terminated on March 2, 2006. She hired a lawyer in early 2006 shortly after receiving The Form. [ 21 ] 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. [ 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. [ 23 ] Section 51(1) of the SABS states: “A mediation proceeding…..in respect of a benefit under this Regulation shall be commenced within two years after the insurer's refusal to pay the amount claimed.” [ 24 ] Despite the plaintiff's argument that the defendant cannot gratuitously deny her claim for Non-Earner Benefits they clearly and unequivocally, in part three of The Form, refused to pay her Non-Earner Benefits. [ 25 ] This

interpretation would have required her to apply for mediation by December 19, 2007. Although it may be argued that the limitation period should not start running until 26 weeks after the accident because of Section 12(7) of the SABS, this

interpretation does not assist the plaintiff as she was still well beyond the limitation periods when she asked for mediation and subsequently commenced her court action. [ 26 ] The plaintiff submits that if the current action breaches a limitation period, the plaintiff should be entitled to amend her statement of claim for damages for negligent misstatement. [ 27 ] The negligent misstatement that the plaintiff refers to is the same statement from the OCF-9 Form dated December 19, 2005.

I fail to see how this claim would not breach a limitation period since the plaintiff’s lawyer and therefore the plaintiff would have known about the misstatement in 2006. [ 28 ] Although both counsel referred to other arguments and cases, in light of my findings above I do not have to deal with them. [ 29 ] I therefore dismiss the plaintiff's action and her request to amend her Statement of Claim with costs, if demanded. [ 30 ] If the parties are unable to agree on costs Mr. Bradbury shall forward his brief submissions on costs to me by June 28, 2013. Ms.

Poproski shall forward her brief response to me by July 9, 2013. Mr. Bradbury shall then forward his reply, if any, to me by July16, 2013. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca James W. Sloan J. Released: June 21, 2013 CITATION : Seitzema v Economical, 2013 ONSC 4299

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Tanya Seitzema Plaintiff – and – Economical Insurance Defendant REASONS FOR JUDGMENT J. W. Sloan J. Released: June 21, 2013