Insurer's notice of termination of benefits under Statutory Accident Benefits Schedule was not properly given because procedure requirements not followed.

[2014] O.J. No. 1575

2014 ONSC 1964

Ontario Superior Court of Justice

C.D. Aitken J.

April 1, 2014

The insured was involved in a motor vehicle accident. She applied to her insurer for statutory accident benefits. The insurer began to pay income replacement benefits as of August 9, 2006. The insured was advised that her income replacement benefits would be terminated effective August 13, 2009. On that date, her last income replacement benefit was sent to her. In August 2011, the insured served the insurer with an application for mediation dated August 8, 2011 regarding termination of her income replacement benefits. The parties attended mediation between June 14, 2012 and September 11, 2012 but no resolution was achieved.

At the mediation, the insurer took the position that the mediation was statute barred under s. 281.1(1) of the Insurance Act and s. 51 of the Statutory Accident Benefits Schedule ("SABS"). The mediator's report was issued on September 11, 2012. This action was commenced by a statement of claim on October 15, 2012. If the mediation process was commenced within the limitation period set out in s. 281.1(1) of the Insurance Act, the action was commenced within the timelines set out in s. 281.1(2) of the Insurance Act and s. 51(2) of the SABS.

The insured brought a motion for partial summary judgment seeking a ruling that the action was not statute barred. The insured's motion for partial summary judgment was granted. The Court found that the action was commenced within the time limit for doing so under s.281.1 of the Insurance Act. The Court found that the insurer's notice of termination of benefits was not properly given because the insurer did not comply with the procedural requirements under the SABS in regards to the insurer's examinations, which provided the basis for the determination of benefits. The Court therefore concluded that the limitation period did not start to run when the plaintiff received the notice of termination.