Citation and Court Information
CITATION: State Farm Mutual Automobile Insurance Company v. S.R. and Financial Services Commission of Ontario, 2013 ONSC 2086
DIVISIONAL COURT FILE NO.: 85/12
DATE: 20130408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Applicant
– and –
S.R. and FINANCIAL SERVICES COMMISSION OF ONTARIO Respondents
Counsel:
Robert S. Franklin, for the Applicant
William G. Scott, for the Respondent, S.R.
Joseph Nemet, for the Respondent, Financial Services of Ontario
HEARD at Toronto: April 8, 2013
Reasons for Judgment
HARVISON YOUNG J.
[1] State Farm applies for judicial review from the Director’s Delegate Blackman’s decision dismissing the appeal and confirming the order of Arbitrator Alves in which he ordered that Ms. R. had a reasonable explanation within the meaning of s. 31 of the schedule for the delay in notifying State Farm Mutual Automobile Insurance Company of her claim for statutory accident benefits, and ordering that Ms. R. is not disentitled from proceeding with her claims for statutory accident benefits.
[2] The parties agree that the appeal from the Arbitrator’s decision lay only on an error of law and that the applicable standard of review with respect to Director’s Delegate Blackman’s decision is that of reasonableness.
[3] The applicant raises a number of related grounds of appeal. First, it argues that the Director’s Delegate’s decision was unreasonable in rejecting the applicant’s argument that there was no evidentiary basis to the Arbitrator’s finding that the respondent was unable to provide notice within the time period. Second, it argues that the Arbitrator and Director’s Delegate erred in effectively collapsing the ability to give notice and the ability to pursue the claim. Third, it argues that the finding that there was a reasonable explanation for the delay was unreasonable.
[4] In our view, the appeal must be dismissed. First, we do not agree that the record discloses, as the applicant submits, an absence of evidence that the respondent was unable psychologically to provide notice. To constitute an error of law, there would have to be a complete absence of evidence from which the inferences drawn could be made.
[5] State Farm is attempting to reargue the preliminary motion and asks this Court to make different factual findings or draw different inferences from the evidence. That is not our role, nor was it the role of the Director’s Delegate.
[6] Second, we do not agree that the Director’s Delegate was unreasonable in concluding that the Arbitrator had not erred in failing to strictly distinguish between the failure to give notice and the decision to pursue a claim.
[7] The Director’s Delegate at p. 6 of his Reasons, stated as follows:
There was clearly evidence before the Arbitrator of the Respondent’s impaired psychological wherewithal to pursue her own claim with the same first-party insurer. The Appellant, however, argues that the Arbitrator was restricted to determining only whether the Respondent had the psychological wherewithal for the simple, brief task of phoning her counsel to send notice.
I am not persuaded that in the context of a reasonable explanation, the act of giving notice of one’s intention to apply for benefits under the schedule is to be strictly segregated from the psychological wherewithal to decide to apply for benefits, a decision that includes consideration of the consequences in time and effort that may follow. Further, it is difficult to discern how avoiding a no-fault claim would involve the same psychological wherewithal and strength as a decision to take positive action. This was a reasonable finding on the part of the Director’s Delegate and we see no basis for interfering.
[8] Third, the Director’s Delegate applied the correct legal test with respect to whether the respondent had a reasonable explanation for delay, that is the test articulated in Horvath v. Allstate Insurance Co. of Canada (FSCO A02-000482, June 9, 2003).
[9] The Director’s Delegate found that the Arbitrator applied the correct principles and that there was evidence to support her findings. His reasons are thorough and address every issue raised by State Farm. The decision is transparent and intelligible in its reasoning and his decision is within the range of possible, acceptable outcomes.
[10] The application is therefore dismissed.
MOLLOY J.
COSTS
[11] I have endorsed on the Application Record, “This application is dismissed for oral reasons delivered by Harvison Young J. Costs to the respondent S.R. fixed in the amount of $5,000 all inclusive, payable by State Farm.”
HARVISON YOUNG J.
MOLLOY J.
SACHS J.
Date of Reasons for Judgment: April 8, 2013
Date of Release: April 15, 2013
CITATION: State Farm Mutual Automobile Insurance Company v. S.R. and Financial Services Commission of Ontario, 2013 ONSC 2086
DIVISIONAL COURT FILE NO.: 85/12
DATE: 20130408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Applicant
– and –
S.R. and FINANCIAL SERVICES COMMISSION OF ONTARIO Respondents
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: April 8, 2013
Date of Release: April 15, 2013