COURT FILE NO.:671/03
DATE:
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, CHAPNIK, LAX JJ.
B E T W E E N:
GRAEME ERSKINE )
Applicant ) In person
- and – )
FINANCIAL SERVICES COMMISSION OF ONTARIO) Joe Nemet, for the Respondent,
and THE PERSONAL INSURANCE COMPANY OF ) Financial Services Commission
CANADA ) of Ontario
Respondents ) Ralph D'Angelo, for the
) Respondent, The Personal
) Insurance Company of Canada
) HEARD: September 15, 2005
BY THE COURT
[1] The applicant, Graeme Erskine, seeks judicial review of the decision of the Director of Arbitrations dated November 1, 2002, in which he upheld the decision of the Arbitrator of the Financial Services Commission of Ontario (FSCO). The applicant's claim for statutory accident insurance benefits was dismissed and he was ordered in the arbitration hearing, to pay 50% of the Personal Insurance Company's arbitration expenses (later assessed at $2,522.91), and in the appeal hearing, to pay Personal's costs in the fixed amount of $500.00.
Background
[2] The applicant claims to have been injured in an accident on a TTC bus on October 10, 2000. His automobile insurer, Personal, denied his claim for accident benefits based largely on the fact that he initially reported the accident as having occurred on a TTC subway train. It was only after being advised that there was no coverage for accidents occurring on subway trains, that he claimed the incident occurred while he was on a TTC bus.
[3] On May 23, 2002, the Arbitrator, Catherine Skinner, found that the applicant failed to establish, on a balance of probabilities, that the accident had taken place on a TTC bus; and that, if it occurred, he had sustained impairment as a result. In ordering the applicant to pay one-half of Personal's expenses, she noted first, that he was entirely unsuccessful in the outcome of the proceedings and second, that he "adopted a position with respect to the summons to witness for Mr. Martineau which was manifestly unfounded."
[4] On appeal, the Director of Arbitrations, David Draper, in comprehensive Reasons for Decision, dismissed Mr. Erksine's appeal. Noting that he had been completely unsuccessful in the appeal and had raised no novel or significant legal issues, he ordered him to pay Personal's appeal expenses which he fixed at $500.00.
Analysis
[5] Much of the applicant's argument before us consisted of an attempt to re-litigate the factual findings of the Arbitrator as upheld by the Director. Mr. Erskine centred his submissions upon the Arbitrator's "finding" that he (Mr. Erskine) "never believed that Mr. Martineau's evidence would assist him in the presentation of his case." This comment must be viewed, however, in the context of the Arbitrator's overall discussion of this issue, which reads:
In response to Personal's motion to quash the summons of Mr. Martineau, the Chief Executive Officer of Personal, Mr. Erskine assured me that he believed Mr. Martineau had potentially relevant evidence to offer with respect to the denial of his benefits. Mr. Erskine was not amenable to a compromise whereby Mr. Martineau could participate in the arbitration via telephone, as opposed to traveling from his residence in Montreal. Mr. Martineau attended at the proceeding and gave his evidence in a cooperative and forthright manner. He denied ever stating that Mr. Erskine would not receive benefits from Personal and I accepted his evidence in this regard.
In his submissions, Mr. Erskine acknowledged that he had never believed that Mr. Martineau's evidence would assist him in the presentation of his case. It is unclear why Mr. Erskine insisted on Mr. Martineau's personal attendance if he was aware all along that Mr. Martineau would not be of any assistance to him. I found his position in this regard to be manifestly unfounded.
[6] The parties' submissions to the Arbitrator in the arbitration hearing were not transcribed. However, on a perusal of the transcript of the proceedings that we do have, it appears to us that the Arbitrator's findings, taken in context, were reasonable based on the evidence before her. Moreover, as noted by the Director in his Reasons for Decision dated November 1, 2002, "In arguing that he should be allowed to compel Mr. Martineau's attendance, Mr. Erskine acknowledged that if the Arbitrator concluded that he did so without cause, this could be addressed through expenses." He concluded that, in the circumstances, the Arbitrator had acted "well within her authority."
[7] An Arbitrator or Director has exclusive jurisdiction to exercise the powers conferred upon him or her under the Insurance Act, R.S.O. 1990, c.I.8 as amended, and to determine all questions of fact or law that arise in a proceeding. Unless an appeal is provided under the Act, the decision is final and conclusive for all purposes. A party to an arbitration under s. 282 of the Act may appeal the order of the Arbitrator to the Director on a question of law.
[8] This court has held on many occasions that the standard of review for decisions of an Arbitrator and/or Director acting within jurisdiction under the Insurance Act is one of patent unreasonableness. See, for example, Kumar v. Coachman Insurance Co., 2004 11702 (ON SCDC), [2004] O.J. No. 2494 (Ont. Gen. Div.) and Hernandez v. Zurich Insurance Company and FSCO, unreported, (Ont. Sup. Ct. Div. Ct.) November 22, 2000.
[9] A patently unreasonable decision has been described as one that is "clearly irrational," "evidently not in accordance with reason" or "so flawed that no amount of curial deference can justify letting it stand." See Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003], 1 S.C.R. 247 and cases cited therein.
Conclusion
[10] We have considered all of the arguments raised by the applicant in the context of the record of the proceedings and the decisions of both the Arbitrator and the Director. We are not persuaded that there has been an error of fact or law, as alleged. In our view, the findings made were amply supported by the evidence. Certainly, the decisions are not patently unreasonable.
[11] Accordingly, this application is dismissed. The Commission does not seek an award of costs. Personal is entitled to its reasonable costs which we fix in the all-inclusive sum of $3,000.00.
[12] We thank both counsel and Mr. Erskine for the able and respectful manner in which this matter was presented to the Court.
GREER J.
CHAPNIK J.
LAX J.
Released:
COURT FILE NO: 671/03
DATE:
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GRAEME ERSKINE
Applicant
- and –
FINANCIAL SERVICES COMMISSION
OF ONTARIO. And THE PERSONAL
INSURANCE COMPANY
Respondents
REASONS FOR DECISION
Greer, Chapnik, Lax JJ.
Released: