COURT FILE NO.: 326/05

DATE: 20060310

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., JENNINGS & HOWDEN JJ.

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O., 1990, c. J. 1, as amended;

AND IN THE MATTER OF an Appeal Order of the Director’s Delegate of the Director of Arbitrations, Financial Services Commission of Ontario, dated June 20, 2005; and a preliminary issue Order of an Arbitrator, Financial Services Commission of Ontario, dated November 14, 2003.

B E T W E E N:

LIBERTY MUTUAL INSURANCE COMPANY Applicant

• and -

HOWARD YOUNG and THE FINANCIAL SERVICES COMMISSION OF ONTARIO Respondents

Eric T. Sigurdson, for the Applicant Michael J. Gillen, for the Respondent, Young Joe Nemet, for the Respondent, Commission

HEARD: March 7, 2006

HOWDEN J.:

1The applicant Liberty Mutual Insurance Company applies for judicial review of the decisions of the Director’s delegate and of the arbitrator of the Financial Services Commission of Ontario. The issue before the arbitrator was whether the respondent Howard Young was entitled to consideration for enhanced accident benefits from his insurer by reason of catastrophic impairment as defined in s. 2(1.1)(e)(i) of the Statutory Accident Benefits Schedule-Accident on or after November 1, 1996 (SABS, Regulation 403/96 as amended). Section 2(1.1)(e)(i) reads:

(1.1) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is

(e) brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose

2The arbitrator found that Mr. Young met all of the elements of the test for catastrophic impairment as defined in s. 2(1.1)(e)(i) of SABS, including her finding that one hour (within which four GCS scores were recorded) was a reasonable time in the circumstances of this case.

3The statutory right of appeal to the Director of the respondent Commission is limited to a question of law. The Director’s delegate dismissed the applicant’s appeal, finding no errors of law.

4The applicant now seeks by this application to set aside or quash the two orders and decisions because the arbitrator is said to have acted unreasonably in not accepting the conclusion of the expert witness called by the applicant as to what was a “reasonable period of time” and in failing to incorporate into s. 2(1.1)(e)(i) factors more predictive of outcome. The applicant also cites the decision of another arbitrator in Unifund Assurance Company v. Fletcher (not reported, Jan. 18, 2000) as conflicting with the subject decision on the “reasonable period of time” issue and thereby requiring judicial intervention to ensure consistency in the law. As to standard of review, the applicant submits that the arbitrator must be correct in the legal test she applied, while the ultimate conclusion and finding should be assessed on a reasonableness standard. The applicant asserts that the Director’s delegate erred in failing to review the arbitrator’s approach to s. 2(1.1)(e)(i) on a standard of correctness.

5In our view, the decisions in question were made within a specialized adjudicative regime established under legislative and regulatory authority. The arbitrator and the Director are granted exclusive jurisdiction to rule on accident benefits entitlement. Their decisions are final and conclusive on all questions of fact and law. The dispute being decided is between two parties and questions of law often attract a standard of correctness. However, decisions on questions of law and fact within the SABS adjudicative regime are protected by a full privative clause and the legal interpretation required of the arbitrator and Director’s delegate in this case lies at the core of their specialized jurisdiction. In our view, the appropriate standard of review is properly held to be patent unreasonableness. Hernandez v. Zurich Insurance Company (Div. Ct., Nov. 22, 2000); Kumar v. Coachman Insurance Co., 2004 11702 (ON SCDC), [2004] O.J. No. 2494 (Div. Ct.); leave to appeal to Ont. C.A. denied October 26, 2004; leave to appeal to S.C.C. denied [2002] S.C.C. No. 195.

6The arbitrator and Director’s delegate applied the test of catastrophic impairment set out in the SABS. The arbitrator correctly held that the issue of “reasonable period of time after the accident” requires a case-by-case analysis and that the expert evidence called by the applicant, though undeniably from a well-experienced and able source, did not and could not act as a substitute for the finding which the tribunal had to make on all the evidence. Indeed, the arbitrator accepted his evidence on discrete points in her review of the evidence. The arbitrator’s decision makes findings supported by evidence and accepts or rejects evidence for reasons which are grounded in the statutory regime and the circumstance of this case. It is recognized that the finding of catastrophic impairment does not imply a right to enhanced benefits; it simply does not exclude from consideration for those benefits those persons who meet the s. 2(1.1)(e)(i) definition of catastrophic impairment whose cases then go on to be considered on reasonable and necessary tests.

7As to the alleged conflict with Unifund, like the decisions before us, Unifund recognized that the issue of “reasonable time” under s. 2(1.1)(e)(i) depends on the circumstances of each case; in the words of the arbitrator in Unifund, “whether that period …is 6 hours or less will depend upon the facts of the particular case”. The period of time found as reasonable in Unifund, where the same expert witness’s evidence was preferred, was one-half hour on its particular facts. If the use of the Glasgow Coma Scale in s. 2(1.1)(e)(i) is problematic as the applicant’s witness suggests, the proper recourse is to the Legislature and the Lieutenant-Governor-in-Council with fully-documented concerns.

8Even if there were some conflict in the principles used by the arbitrators in the course of their reasoning processes, that alone does not take away from the legislative intent that decisions within the statutory core of jurisdiction and expertise are to be made by those designated to do so. We adopt the words of the Supreme Court of Canada held by L’Heureux-Dubé in Domtar Inc. v. Quebec, 1993 106 (SCC), [1993] 2 S.C.R. 756 at pp. 800-1:

If Canadian administrative law has been able to evolve to the point of recognizing that administrative tribunals have the authority to err within their area of expertise, I think that, by the same token, a lack of unanimity is the price to pay for the decision-making freedom and independence given to the members of these tribunals. Recognizing the existence of a conflict in decisions as an independent basis for judicial review would, in my opinion, constitute a serious undermining of those principles. This appears to me to be especially true as the administrative tribunals, like the legislature, have the power to resolve such conflicts themselves. The solution required by conflicting decisions among administrative tribunals thus remains a policy choice which, in the final analysis, should not be made by the courts.

9This is not an appeal. The standard of review is patent unreasonableness. We are not satisfied that the decisions before us are patently unreasonable nor do we find them to be unreasonable.

CUNNINGHAM A.C.J.

JENNINGS J.

HOWDEN J.

Released: 20060310

COURT FILE NO.: 326/05

DATE: 20060310

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham a.c.j., jennings & howden JJ.