Editor’s Note: Corrigendum released on February 26, 2010. Original judgment has been corrected with text of corrigendum appended
CITATION: ING Insurance Company of Canada v. Jetty, 2010 ONSC 1091
COURT FILE NO.: 556/08
DATE: 2010/02/17
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT-ONTARIO
RE: ING Insurance Co. of Canada v. Jetty and The Financial Services Commission of Ontario
BEFORE: Dambrot, Swinton and Sachs J.J.
COUNSEL: Chris Blom, for the Applicant, ING Insurance
Robert Conway, for the Respondent, Financial Services Commision
HEARD: February 10, 2010 at Toronto
E N D O R S E M E N T
[1] The Applicant, ING Insurance, applies for judicial review of the decision of Lawrence Blackman, delegate of the Director of the Financial Services Commission of Ontario. The Director’s Delegate dismissed the Applicant’s appeal from the decision of Arbitrator Killoram. The Arbitrator had allowed the Respondent Jetty (who did not appear or file material before us) to rescind a settlement agreement with the Applicant on the grounds that
The Settlement Dispute Notice (“SDN”) was not hand-signed by a representative of the insurer, but rather the insurer’s counsel typed in his name as the insurer’s representative.
The SDN did not contain a proper description of the Respondent’s benefit entitlement.
[2] The Applicant concedes that the standard of review that we should be applying to the Director’s Delegate’s decision is one of reasonableness.
[3] We find that the Director’s Delegate’s decision that the Arbitrator did not err in finding that the Applicant did not comply with the provisions of the Settlement Regulation (Ont. Reg. 664)regarding providing “a description of the benefits that may be available to the insured person” was a reasonable one. This interpretation is consistent with the purpose of the regulation (protection of the consumer) and the caselaw, particularly the decision of the Ontario Court of Appeal in Opoku v. Pal (2000), 49 O.R. (3d) 97, where the court held that “a description of the benefits available requires a statement of any monetary limits which apply to any particular benefit.”
[4] In this case, the description of the benefits that the insured received stated that the maximum income replacement benefit he was entitled to was $400.00 per week. It was reasonable to find that the insured could have been misled by this information since the insured in this case was a self-employed person and the applicable Statutory Accident Benefits Schedule provides that “the insurer shall add to the amount of the income replacement benefit payable to the person 80 per cent of the losses from self-employment incurred as a result of the accident.”
[5] Having made this finding, the decision of the Director’s Delegate will stand and the application is dismissed.
[6] However, we do wish to make it clear that if the only basis for the decision to allow Mr. Jetty to rescind the settlement agreement had been the fact that the SDN was signed in typed form by the insurer’s lawyer, then our view as the reasonableness of that decision would have been different.
[7] The Director’s Delegate reached the conclusion that he did on this issue for two main reasons:
(a) The regulation requires that the SDN be signed by both the insurer and the insured. When the legislation or regulation in question does not prescribe the manner of signature, it is necessary to consider the purpose or intent of the regulation. In this case the regulation is geared towards the protection of the consumer. “Consumer protection is not enhanced if, as a matter of routine, neither principal is required to put pen to paper, the insured confirming that he or she has received and read the Settlement Disclosure Notice and the insurer certifying that the information in the Notice is complete and correct” (Director’s Delegate’s decision, page 7).
(b) The signature page of the SDN uses the words “representative of the insurer”, not “legal representative of the insurer”. Furthermore, the “Notice and Caution” in the SDN states that the form “must be completed and signed by your insurer.”
[8] In our view, while doing what one can to ensure that the insurer provides complete and accurate information to the insured is consistent with the purpose of the regulation, it is unreasonable to suppose that this goal will be achieved or furthered by a requirement that the insurer sign in a particular way, namely by “putting pen to paper.” The common law allows for a signature to be handwritten, stamped or typed, providing that the affixing of the signature conforms with the intent of the legislation. In this case, the intent of the legislation will not be affected or undermined if the signature of the insurer is typed, rather that hand-written.
[9] We also find the conclusion that the term “representative of the insurer” precludes the insurer’s lawyer from signing as that “representative” to be an unreasonable one. A lawyer is an agent of his or her client. The lawyer is assumed to have authority to act on the client’s behalf and to effect a compromise of the client’s claims. The Settlement Regulation does not change these assumptions (Birjasingh v. Coseco Insurance Co., [1999] O.J. No. 4546 at p. 4-5(S.C.J.)).
[10] In expressing the opinion that we have concerning the signature issue we are conscious of the fact that the reasoning used by the Director’s Delegate could allow an insurer who had accepted an offer, to later challenge that offer on the grounds that their lawyer accepted as their representative and/or that they did not hand-sign the offer. Clearly this would be an absurd result and one that would be inconsistent with the intent of the regulation.
[11] For these reasons the application for judicial review is dismissed. There will be no order as to costs.
Dambrot J.
Swinton J.
. Sachs J.
DATE: February ,2010
CITATION: ING Insurance Company of Canada v. Jetty, 2010 ONSC 1091
COURT FILE NO.: 556/08
DATE: 2010/02/26
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT-ONTARIO
RE: ING Insurance Co. of Canada v. Jetty and the Financial Services Commission of Ontario
BEFORE: Dambrot, Swinton and Sachs JJ.
COUNSEL: Chris Blom, for the Applicant, ING Insurance
Robert Conway, for the Respondent, Financial Services Commission
HEARD February 10, 2010 at Toronto
CORRIGENDA
Counsel for the Applicant wrote to the Registrar on February 17, 2010, and was kind enough to point out errors in the Court’s endorsement dated that day.
With thanks to Mr. Blom, the following paragraphs are substituted for paragraphs 8-10 in the endorsement:
[12] In our view, while doing what one can to ensure that the insurer provides complete and accurate information to the insured is consistent with the purpose of the regulation, it is unreasonable to suppose that this goal will be achieved or furthered by a requirement that the insurer sign in a particular way, namely by “putting pen to paper.” The common law allows for a signature to be handwritten, stamped or typed, providing that the affixing of the signature conforms with the intent of the legislation. In this case, the intent of the legislation will not be affected or undermined if the signature of the insurer is typed, rather that hand-written.
[13] We also find the conclusion that the term “representative of the insurer” precludes the insurer’s lawyer from signing as that “representative” to be an unreasonable one. A lawyer is an agent of his or her client. The lawyer is assumed to have authority to act on the client’s behalf and to effect a compromise of the client’s claims. The Settlement Regulation does not change these assumptions (Birjasingh v. Coseco Insurance Co., [1999] O.J. No. 4546 at p. 4-5(S.C.J.)).
[14] In expressing the opinion that we have concerning the signature issue we are conscious of the fact that the reasoning used by the Director’s Delegate could allow an insurer who had accepted an offer, to later challenge that offer on the grounds that their lawyer accepted as their representative and/or that they did not hand-sign the offer. Clearly this would be an absurd result and one that would be inconsistent with the intent of the regulation.
Dambrot J.
Swinton J.
Sachs J.
DATE: February 26, 2010