CITATION: Bisnath v. State Farm Mutual Automobile Insurance Co., 2011 ONSC 6316
DIVISIONAL COURT FILE NO.: 56/11
DATE: 20111024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, DAMBROT AND MULLIGAN JJ.
BETWEEN:
ANN BISNATH
Applicant
– and –
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and THE FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
Jeffrey Raphael and Robert Besunder, for the Applicant
Todd J. McCarthy, for the Respondent, State Farm Mutual Automobile Insurance Company
Robert Conway, for the Respondent, Financial Services Commission of Ontario
HEARD at Toronto: October 24, 2011
PARDU J. (ORALLY)
[1] An Arbitrator concluded that the insurer had failed to comply with various requirements of the Statutory Accident Benefits Schedule before terminating income replacements benefits, but concluded that this failure did not, in itself, entitle the applicant to ongoing benefits before a hearing on the merits of her entitlement to income replacement benefits.
[2] The applicant appealed this decision to the Director’s Delegate who dismissed the appeal saying:
However, after the hearing concluded, the Court of Appeal issued its decision in Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457. The case also dealt with problems in a termination notice, and the Court found that “The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given…” There was thus a further hearing day to hear submissions on the effect of Stranges.
[3] The Director’s Delegate continued:
The issue is no longer novel and there is little apparent strength to the appeal, in light of Stranges. As to prejudice, as I already stated in my earlier letter, there is nothing to prevent Ms. Bisnath from moving for interim benefits in the arbitration proceeding. Rather, I find that the quickest, most just and cost-effective resolution of this proceeding is not to start an appeal but rather to continue with the arbitration.
[4] Rules 50.2 and 51.2 of the Dispute Resolution Practice Code provide as follows:
50.2 A party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided, unless the Director orders otherwise.
51.2 An appeal may be rejected if:
(b) it does not raise a question of law;
(c) it is from a preliminary or interim order that does not finally decide the issues in dispute.
[5] The Director’s Delegate’s decision was an exercise of discretion within the range of reasonable outcomes given the provisions of the Dispute Resolution Practice Code. This is not one of those exceptional cases justifying appellate intervention in relation to an interlocutory order. The applicant will have a full opportunity to claim relief for the failure of the insurer to abide by the provisions of the Statutory Accident Benefits Schedule at the hearing on the merits.
[6] Application dismissed.
[7] Costs to the respondent insurer fixed at $3,500.00, as agreed.
PARDU J.
DAMBROT J.
MULLIGAN J.
Date of Reasons for Judgment: October 24, 2011
Date of Release: November 3, 2011
CITATION: Bisnath v. State Farm Mutual Automobile Insurance Co., 2011 ONSC 6316
DIVISIONAL COURT FILE NO.: 56/11
DATE: 20111024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, DAMBROT AND MULLIGAN JJ.
BETWEEN:
ANN BISNATH
Applicant
– and –
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and THE FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: October 24, 2011
Date of Release: November 3, 2011