Co-operators General Insurance Company v. Doobay, 2017 ONSC 5804 (CanLII)
The cooling off period applies for accident benefit settlements in litigation if settlement disclosure notice forms part of the written release.
Date Heard: September 29, 2017 | Full Decision [PDF]
In this motion, The Co-operators General Insurance Co. (“Co-operators”) sought to enforce a settlement, which was achieved four days into a FSCO arbitration.
The insured attempted to resile from the settlement, pursuant to section 9.1(4) of Ontario Regulation 664, which states that an insured person may rescind the settlement within 2 business days.
The insurer argued that the “cooling off period” section should not apply in this case because there was an oral Rule 49 offer and an acceptance and therefore the regulation does not apply. The insurer relied on the case of Igbokwe et al. v. HB Group Insurance Management Ltd. et al., where the Court of Appeal held that section 9.1 and Rule 49 cannot work in tandem.
The insured argued that the clause containing the two day cooling off period was attached to and formed part of the proposed settlement documentation. The insured read and then signed this documentation. The insured argued that the insurer could have easily struck out that clause but it did not.
The Court dismissed the insurer’s motion and held that this was not a case of sending out the prescribed settlement disclosure notice, which includes the two day cooling off period, after a settlement was reached. The two day cooling off period formed part of the written release and could not be amended through parol evidence.
Read the full decision [PDF]