Bisnath v. State Farm Mutual Automobile Insurance Co., 2011 ONSC 6316

PARDU J. (ORALLY)

1An 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.

2The 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.

3The 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.

4Rules 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.

5The 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.

6Application dismissed.

7Costs to the respondent insurer fixed at $3,500.00, as agreed.