CITATION: Sahinbay v. Unica Insurance Inc., 2016 ONSC 4031
DIVISIONAL COURT FILE NO.: 227-15 DATE: 20160616
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
H. McLEAN, C. HORKINS, and L.A. PATTILLO JJ.
BETWEEN:
Arif Sahinbay
Applicant
– and –
Unica Insurance Inc.
Respondent
James Cooper, agent for the Applicant
Harry Brown, for Unica Insurance Inc.
Michael Spagnolo, for The Financial Services Commission of Ontario
HEARD at Toronto: June 16, 2016
C. HORKINS, J. (ORALLY)
[1] The applicant, Arif Sahinbay, has brought an application for judicial review of the decision of Arbitrator Robinson dated March 9, 2015.
[2] By way of background, the applicant was involved in a motor vehicle accident on April 9, 2010 and as a result, he sustained injuries.
[3] The applicant claimed Statutory Accident Benefits (“SABs”) under the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 R.R.O. 1990 O Reg. 403/96 under the Insurance Act R.S.O. 1990 c.I.8., from Unica Insurance Company (“Unica”). Specifically, he sought enhanced benefits due to being catastrophically impaired under s.2 (1.2), weekly non-earner benefits under s.12(1), payment for attendant care under s.16(1) and housekeeping expenses under s.22(1).
[4] The applicant also sought a special award against Unica under s. 282(10) of the Insurance Act, which an arbitrator may grant when the insurer has unreasonably delayed or withheld payment.
[5] A dispute arose between the applicant and Unica regarding his entitlement to certain SABs.
[6] The applicant and Unica could not resolve their dispute and the applicant requested arbitration at the Financial Services Commission of Ontario (“FSCO”). On March 9, 2015, after a lengthy hearing before Arbitrator Robinson, the applicant was awarded certain benefits and denied others.
[7] Section 283(1) of the Insurance Act, provides the applicant with a right to appeal the Arbitrator’s decision on a question of law only, to the Director. The applicant did not follow the direction of s. 283(1). Instead, he commenced an application for judicial review of Arbitrator Robinson’s decision.
[8] On September 29, 2015, Unica brought a motion before Justice Sanderson in the Divisional Court seeking an order that the applicant had no right to appeal the decision of Arbitrator Robinson.
[9] She correctly noted that the applicant has an obligation to follow the review process in the Insurance Act. Specifically he must exhaust his right of appeal under the Insurance Act. As a result, she stayed the application for judicial review.
[10] The applicant then returned to FSCO and filed a notice of appeal dated November 30, 2015, seeking to appeal Arbitrator Robinson’s decision. The appeal was assigned to David Evans, the Director’s Delegate.
[11] In a letter to the parties dated December 7, 2015, the Director’s Delegate stated that the appellant had filed his notice of appeal, after the expiration of 30 day time period for appealing. The Director’s Delegate refused to extend the time for the appeal.
[12] The only reason given by the applicant for his extension request was the fact that he had elected to proceed directly to Divisional Court rather than following s. 283(1) under the Insurance Act.
[13] The Director’s Delegate dismissed the appeal and stated as follows in his letter:
“The only reason for the delay is that Mr. Sahinbay elected to proceed in another forum. I do not find that a reasonable ground for providing an extension where Mr. Sahinbay was fully aware of our process and chose to ignore it.
Accordingly, the appeal is rejected, and we will be closing our file.”
[14] The matter before us today is an application for judicial review of Arbitrator Robinson’s decision and not the decision of the Director’s Delegate. The applicant’s right to review the Arbitrator’s decision is limited by s. 283(1) of the Insurance Act. It is the decision of the Director’s Delegate that he should be seeking judicial review of and not the decision of Arbitrator Robinson.
[15] This court has no jurisdiction to hear an application for judicial review directly from the Arbitrator. As Sanderson J. explained, courts do not review administrative decisions until a final decision has been rendered in the administrative process.
[16] In this case, the applicant now has a final decision from the Director’s Delegate and it is that decision from which he should be seeking judicial review.
[17] In summary, we have no jurisdiction to hear the judicial review application that is before us and accordingly it is dismissed.
COSTS
[18] I have endorsed the application record as follows: “For oral reasons, application is dismissed and there will be no costs.”
___________________________ c. horkins, J.
H. mclean, J.
l.a. pattillo, J.
Date of Reasons for Judgment: June 16, 2016
Date of Release: June 20, 2016
CITATION: Sahinbay v. Unica Insurance Inc., 2016 ONSC 4031
DIVISIONAL COURT FILE NO.: 227-15 DATE: 20160616
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. McLEAN, C. HORKINS, and L.A. PATTILLO JJ.
BETWEEN:
Arif Sahinbay
Applicant
– and –
Unica Insurance Inc.
Respondent
ORAL REASONS FOR JUDGMENT
C. HORKINS, J.
Date of Reasons for Judgment: June 16, 2016
Date of Release: June 20, 2016