COURT FILE NO.: DC-493/07
DATE: 20080926
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: TTC insurance company limited v. dorette watson & the Financial Services Commission of Ontario
BEFORE: Justices Ferrier, Whalen and Bellamy
COUNSEL: Norma Priday, for the Applicant
Joseph Markin, for the respondent, Dorette Watson
Joe Nemet, for the respondent, The Financial Services Commission of Ontario
HEARD AT TORONTO: September 25, 2008
E N D O R S E M E N T
The Court:
[1] TTC Insurance Co. Ltd. (“Applicant”) seeks judicial review of the decision of the Director’s Delegate of the Financial Services Commission of Ontario (“FSCO”) dated September 24, 2007 (“Delegate's Decision”).
[2] The Delegate’s Decision upheld the arbitral order of FSCO Arbitrator Edward Lee (“Arbitrator”) dated July 18, 2006, in which the Arbitrator ordered the Applicant to pay Ms. Dorette Watson (“Claimant”) approximately $4,350 for attendant care and housekeeping services, and her costs of the arbitration.
[3] The Applicant seeks an order quashing the Delegate’s decision and denying the claim.
Background
[4] On February 26, 2002, the Claimant was on a bus that stopped short, almost colliding with a car. The braking motion caused her to hit a seat on the bus. She claimed the accident tore both her rotator cuffs. As a result, she sought Income Replacement Benefits (“IRB”), and attendant care and housekeeping expenses, as per the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 (“SABS”). IRB was paid until August 29, 2002. Mediation of the dispute failed, and the Claimant applied for arbitration at the FSCO.
[5] The matter went to arbitration on February 28, 2006. The Claimant did not call witnesses, and provided little documentary evidence, and no medical reports. The Applicant attempted unsuccessfully to serve summonses on the Claimant’s son, and on Marlene Young and Marvelette Ashley, the housekeeping and attendant care providers. The Claimant did not call them as witnesses.
[6] Income Replacement Benefits were denied because of a lack of medical evidence. The Insurer’s Medical Examination dated May 7, 2002 did not identify any accident-related impairments that would prevent the Applicant from returning to work. The DAC Report, prepared on August 16, 2002 confirmed this finding. The Claimant presented no medical reports. Her testimony on her injuries was “vague”, according to the Arbitrator.
[7] In connection with the claim for attendant care and housekeeping expenses, only part of the claim was granted. The Arbitrator found that the Claimant’s evidence was “sparse” and “exaggerated,” and that she provided invoices which were not dated, and which included little description of the services provided.
[8] Shortly put, there was an ample foundation for doubting the credibility of the Claimant.
[9] Notwithstanding the observations of the Arbitrator touching on the credibility of the Claimant, on the basis of her evidence, the medical evidence and an excerpt from the “Melamed report” contained in the DAC report, the Arbitrator held that the Claimant “needed and received such care,” being attendant care and housekeeping services.
[10] It is the position of the Applicant that the excerpt was inadmissible evidence upon which the Arbitrator could not rely and that the Arbitrator erred in law in relying on the excerpt in determining the amount expended by the Claimant for such care.
[11] The additional issue before us revolves around the statement in the decision of the Arbitrator that “Nevertheless Ms. Watson was adamant that she had received both attendant care and housekeeping services.” The Applicant argues that the Arbitrator judged the Claimant’s credibility solely on her demeanour, and that this constituted an error in law.
[12] The Applicant also submits that the Delegate’s ruling on appeal from the Arbitrator amounted to a re-writing of the decision of the Arbitrator, adding interpretation that cannot reasonably be taken from a reading of the Arbitrator’s decision. Furthermore, the Applicant argues that, in effect, the Delegate reasoned that in the case of this Claimant who was not presented by counsel, there was some obligation on the part of the Applicant to file a report (that is, the entire Melamed report) that contained matters of assistance to the Claimant.
[13] The Applicant also contends, in this court, that the award of costs below was made without foundation and is in error.
Standard of review
[14] Prior to Dunsmuir v. New Brunswick, 2008 SCC 8, [2008] S.C.J. No. 8 (S.C.C.), the appropriate standard of review of decisions of the Director’s Delegates was “patent unreasonableness”, particularly when the decision was related to the Insurance Act or the SABS, the domain of expertise: Liberty Mutual Insurance Co. v. Young, 2006 7286 (ON SCDC), [2006] O.J. No. 952.
[15] In Dunsmuir, supra, the Supreme Court held that if the appropriate degree of deference had previously been determined, there was no need to re-evaluate it ( para. 62), and that an extensive review was not required in every case (para. 57).
[16] We conclude that the standard of review in reference to all the questions before us is reasonableness: see paras. 51-55 of Dunsmuir (supra).
Analysis
[17] The Applicant filed the entire DAC Report, without reservation, before the Arbitrator. Therefore, the report, in its entirety, became evidence. The Applicant knew that an excerpt of the Melamed report was contained in the DAC report. In our view, the excerpt from the Melamed report was properly in evidence just as the entire balance of the report was in evidence. We note that even if the standard of review in reference to this question is correctness, the Arbitrator did not err in treating the Melamed excerpt as admissible evidence.
[18] As noted above, the Arbitrator found as a fact that the Claimant “needed and received such care or services,” being the needed care described in the Melamed report. This finding was made against a claim for reimbursement which the Arbitrator held was excessive and unsupported in the evidence. It was not unreasonable for the Arbitrator, not being satisfied with the extent of the claim but being satisfied that such services were utilized, to draw the inference that the expenses were incurred.
[19] In reference to the submission considering the finding that the Claimant was “adamant,” when read in its entirety the decision of the Arbitrator demonstrates that he weighed the issues of credibility in the context of the evidence as a whole in coming to his conclusion that the care had been provided. The Arbitrator was entitled to believe all, some or none of what a witness said and, in this instance, he believed the evidence that the Claimant did need the services and that she received the care and services.
[20] Concerning the Delegate’s decision, we find it to be reasonable. He did express some concern about the extent of the reasoning exhibited in the Arbitrator’s decision, but we do not agree with the Applicant’s submission that he, in effect, rewrote the decision.
[21] Finally, counsel for the Applicant submits that the Delegate has placed an impossible burden on the Applicant by imposing an obligation on a represented party to anticipate the best case for an unrepresented party or assist a party opposed in interest. We do not agree that the Delegate’s decision supports this interpretation.
Costs
[22] On the question of costs, the finding below was reasonable and the quantification of costs remains to be determined. Although the Delegate expressed the view that the costs would be minimal, and he may have been in error when he did so, he found no reason to interfere with the Arbitrator’s award. Nor do we.
[23] Accordingly, the application is dismissed. An order will issue directing the Accountant of the Superior Court of Justice to release funds that were paid into court to the solicitor for the respondent, Dorette Watson, in trust.
[24] Costs of the judicial review application are as follows: on consent, no costs payable to or by FSCO. Costs to Ms. Watson in the amount of $3,500 including disbursements and GST.
Ferrier J.
Whalen J.
Bellamy J.
Date Heard: September 25, 2008
Date of Release: September 26, 2008