Canadian Underwriter

Supreme Court will not hear appeal from Ontario auto claimant whose lawsuit was dismissed due to two-year limitation period

March 18, 2016   by Canadian Underwriter

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The Supreme Court of Canada announced Thursday it will not hear an appeal from an Ontario auto claimant who unsuccessfully sought a non-earner benefit more than three years after her income replacement benefits were terminated.

In a ruling released July 13, 2015, the Court of Appeal for Ontario upheld a lower court ruling against Angela Bustamante, who was involved in a vehicle accident on June 3, 2004. She applied for accident benefits with The Guarantee Company of North America.

Court records indicate that in August, 2004 Bustamante had elected income replacement benefits as opposed to non-earner benefits. At the time she was employed as a hairdresser. The Guarantee stopped paying IRB July 26, 2006 because a post-104 week disability assessment found that the claimant “no longer met the disability test for entitlement.”

The Supreme Court of Canada had denied an application for leave to appeal a Court of Appeal for Ontario ruling, over a disputed auto insurance claim, in favour of The Guarantee Company of North America.  

In September, 2009 Bustamante’s lawyer advised The Guarantee that Bustamante “intended to pursue a claim for non-earner benefits.” The Guarantee told her the following January she was not entitled to non-earner benefits.

Court records indicate that efforts at mediation with the Financial Services Commission of Ontario was unsuccessful, and Bustamante initiated a lawsuit against The Guarantee in 2012.

In 2014, the Ontario Superior Court of Justice granted The Guarantee’s request for summary judgment to dismiss Bustamante’s lawsuit. That ruling was upheld in 2015 on appeal.

In September, 2015, Bustamante applied for leave to appeal to the Supreme Court of Canada, which announced March 17, 2016 that her leave application was denied.

Section 51 (1) of Ontario Regulation 403/96 – the province’s Statutory Accident Benefits Schedule – stipulates that any mediation, evaluation, court proceeding or arbitration over a disputed SABS claim “shall be commenced within two years after the insurer’s refusal to pay the amount claimed.”

Bustamante “did not re-assert a claim for non-earner benefits until June 17, 2011 when she sought mediation, a time well in excess of two years following the termination of benefits,” the Court of Appeal for Ontario wrote in its decision released July 17, 2015. “Even her letter dated September 25, 2009, in which she informed [The Guarantee] that she wished to pursue non-earner benefits, was delivered two years after the respondent terminated her benefits.”

The Court of Appeal for Ontario cited a 2014 ruling by the same court in Sietzema v. Economical Mutual Insurance Company.

Tanya Sietzema was involved in a vehicle accident in 2005. She was employed at the time and a form signed by a physician indicated she “did not meet the ‘disability test’ for Non-Earner Benefits,” the Court of Appeal for Ontario wrote in 2014 in its ruling against Sietzema.

Sietzema’s application for leave to appeal to the Supreme Court of Canada was denied in November, 2014.

“The facts in Sietzema are on all fours with those in this case,” wrote Madam Justice Alexandra Hoy, Madam Justice Gloria Epstein and Mr. Justice Grant Huscroft in their ruling against Bustamante. “There, the claimant applied for and received income replacement benefits. She was denied her claim for non-earner benefits. The claimant received her income replacement benefits and then more than two years after they were denied, she sued her insurer for non-earner benefits.”