Released April 1, 2016 | Full Decision [Document Bank]
This recent FSCO preliminary issue hearing dealt with limitation periods for minors under the SABS. The applicant was injured in a motor vehicle accident on October 9, 2008. At the time of the accident, the applicant was 13 years old. The applicant’s mother helped to fill out an Application for Accident Benefits (OCF-1) and an Activities of Normal Life Form (OCF-12) which were sent to Economical on November 12, 2008. A Disability Certificate (OCF-3) was also submitted to Economical on November 12, 2008 which indicated that the applicant did not suffer a complete inability to carry on the activities of her normal life. Economical responded by sending an Explanation of Benefits (OCF-9) on December 4, 2008 indicating that the applicant did not qualify for non-earner benefits as she did not meet the complete inability test. On September 28, 2012, the applicant submitted an Application for Mediation. On August 23, 2013, a Report of Mediator was issued and on September 19, 2013, an Application for Arbitration was filed. A further OCF-3 was sent to Economical on January 12, 2016 indicating that the applicant did suffer a complete inability to carry on a normal life. At issue, was whether
(a) the applicant’s non-earner benefit claim was statute barred due to non-compliance with the applicable limitation periods under the Limitations Act, 2002 and the Insurance Act; and
(b) whether the applicant was eligible to receive non-earner benefits for the period prior to January 2016 when the Disability Certificate indicated that she did not meet the non-earner benefit criteria.
With respect to the limitation period, Economical argued that it started to run from the time of the refusal on December 4, 2008. Economical argued that the applicant’s mother was acting as her representative in the accident benefits claim. It asserted that the requirement under the Dispute Resolution Practice Code (hereinafter “DRPC”) to have a parent with whom a minor resides apply for mediation or other proceedings is akin to the parent acting as a Litigation Guardian. Economical further argued that the applicant was ineligible to receive non-earner benefits before January 2016 given that the first Disability Certificate indicated that she did not suffer a complete inability to carry on a normal life.
Meanwhile, the applicant argued that the limitation period did not begin to run until she reached the age of majority on November 23, 2012. She submitted that despite assisting to complete the Application for Accident Benefits and Application for Mediation, her mother could not be said to be a Litigation Guardian. As such, the applicable limitation periods under the Limitations Act, 2002 and the Insurance Act did not begin to run until the applicant reached the age of majority. The applicant further argued that she could claim non-earner benefits for the period prior to January 2016 since there was no requirement under the Insurance Act for a Disability Certificate to state that an applicant meets the criterion for non-earner benefits.
In making its decision, the arbitrator relied on the previous decision in Novakovic and Coseco Insurance, FSCO A04-000733, February 22, 2005, which found that limitation periods under the Insurance Act are subject to the Limitations Act, 2002 and that as such, a minor’s rights are postponed until they reach the age of majority. The arbitrator asserted that acting as a minor’s representative in an accident benefits claim is not analogous to acting as a Litigation Guardian. She stated that the Limitations Act, 2002 specifically requires the appointment of a Litigation Guardian for the limitation period to begin to run and does not refer to a parent, representative, or guardian. She added that the legislature would have specified if it had intended to override the protections afforded by the Limitations Act, 2002. With respect to the Disability Certificate, the arbitrator asserted that previous case law established that the main issue was whether a consideration of the totality of the dealings between an insured and their insurer established that there was an application for a benefit. She also found that Economical did have sufficient information in the OCF-12 to consider a potential claim for non-earner benefits.
The arbitrator ultimately concluded that the applicant was not statute barred from proceeding to Arbitration as the limitation period did not begin to run until the applicant was 18 years old. She further concluded that the applicant had filed sufficient information to establish potential entitlement to non-earner benefits and could proceed to Arbitration with her non-earner benefits’ claim.
