If you have been seriously injured in a car or motorcycle accident, chances are you will be claiming no-fault benefits from your own insurance company. A recent decision from the Ontario Court of Appeal helps to ensure that, should you need to sue your insurance company for benefits, you will be able to do so in a timely manner.
Do I have to sue my insurance company?
In some cases, there will be no dispute about what no fault benefits you are entitled to receive under the terms of your policy and there will be no need to bring a court action (or go to arbitration) against your insurance company. Other times, disputes will arise regarding either the availability of a certain benefit, the amount of money you should be receiving or the length of time that benefit should be paid. In those circumstances, there are specific steps which must be taken before an injured victim can sue their insurance company (or take them to arbitration) to claim accident benefits.
Under Ontario law, you cannot sue your insurance company for accident benefits, until you have sought mediation and that mediation has failed. Furthermore, a mediator must attempt to resolve your dispute within 60 days after the application for the appointment of a mediator is filed. This makes common sense – if a matter can be resolved at mediation in a timely matter, both sides are better off than proceeding to court or arbitration.
Backlog of Applications for Mediation
The issue which has arisen relates to the backlog of applications for mediation which have not yet been assigned to a mediator. As reported on the Financial Services Commission of Ontario’s (FSCO) website, as of September 30, 2012, there were 23,745 open files that had not yet been assigned to a mediator. In practical terms, this means that in many cases, an injured victim will file an application for mediation, 60 days will pass, and no mediation will have taken place.
The question which then arises is, can you start a court action against your insurance company after this 60 days has passed and no mediator or mediation has taken place? Or, does the 60 days not start to run until FSCO has assessed the application, found it to be complete and assigned a mediator?
Good News for Car Accident Victims
The Court of Appeal, in its recent decision in Hurst v. Aviva Insurance Company unanimously decided that an injured person is permitted to start a civil action against their insurance company for no-fault benefits 60 days after they have filed an application for mediation with FSCO (unless the parties have agreed to an extension of time). The Court specifically rejected the argument that the 60 days does not begin to run until FSCO has assessed an application as complete, noting that “(S)uch an interpretation, which would allow FSCO to accumulate a backlog of any length, would ignore the legislative purpose of providing a speedy mediation process”.
Have you been in a car accident?
Our team of Ontario’s Injury Lawyers have extensive experience in car accident litigation, both on the no-fault or accident benefit side and on the tort side. We have the experience and knowledge to ensure your rights are protected and that all possible avenues for recovery are being advanced. Contact us today online or call toll free 1-800-563-6348 for a free initial consultation.