Court File and Parties

CITATION: Sidhu v. Aviva Canada Inc., 2017 ONSC 5666 COURT FILE NO.: 467/17 DATE: 2017-09-25

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Dharam Sidhu, Applicant AND: Aviva Canada Inc. and Financial Services Commission of Ontario, Respondents

BEFORE: Kiteley J.

COUNSEL: Kevin Doan, for the Applicant Robert Rogers, for Aviva Canada, Respondent Jessica Spence, for Financial Services Commission of Ontario, Respondent

HEARD at Toronto: September 21, 2017

Endorsement

[1] This is a motion on behalf of Sidhu for a stay of the order made by Arbitrator Tanaka dated February 3, 2017 in which the Arbitrator ordered that the arbitration arising from the motor vehicle accident on August 4, 1990 would not proceed because the applicant had signed a full and final release on December 2, 2003. For the reasons that follow, the motion is dismissed.

[2] Mr. Sidhu was involved in three motor vehicle accidents: August 4, 1990, January 19, 1996 and March 10, 1997.

[3] In October 2015, at a pre-hearing in relation to all of the accidents, the parties agreed to a preliminary issues hearing, in-writing and in advance of the arbitration hearing, to address a number of questions including these:

Should the arbitration proceed as the Applicant has signed a full and final release on December 2, 2003?

Should Mr. Sidhu’s claim for entitlement to the income replacement benefits be time-barred, as this benefit was stopped by the Insurer on July 30, 1993?

[4] At that pre-hearing, it was also agreed to address several preliminary issues arising from the accident in January 1996 including entitlement to weekly income replacement and supplementary medical expenses.

[5] In a letter dated November 23, 2016 the Arbitrator directed that the hearing for the three accidents would be back to back and she set aside 9 days in July 2017 with 3 days allocated to each accident. On consent those dates were changed to start October 31, 2017.

[6] By a decision dated February 3, 2017, on the motion to determine the two preliminary issues arising out of the August 4, 1990 accident, the Arbitrator responded to the first question by ordering that the arbitration proceedings before FSCO arising out of that accident would not proceed. The Arbitrator held that the new Settlement Regulation did not apply so as to require the respondent to provide the specified disclosure and as a result, the full and final released dated December 2, 2003 barred the proceedings.

[7] Given that answer, the Arbitrator held that it was not necessary to answer the second question. The Arbitrator also decided the preliminary issue arising from the 1996 accident namely that the Applicant’s claim for entitlement to income replacement benefits was not time-barred.

[8] The Applicant appealed the decision with respect to the first accident and Aviva appealed the decision as it related to the second action.

[9] The decision of the Director’s Delegate dismissing the appeal with respect to the first accident is dated July 21, 2017. He too held that since the full and final release was a bar to the Arbitration, the question of entitlement to income replacement benefits need not be answered.

[10] On August 11, 2017, counsel for Mr. Sidhu issued a Notice of Application to Divisional Court for Judicial Review of the decision of the Director’s Delegate issued July 21, 2017 in which he asked for an order setting aside that order; and an order requiring the Arbitrator to adjudicate the remaining issues and arguments before her.

Motion for a Stay

[11] Although the Notice of Application contemplates a review of the order of the Director’s Delegate, in the motion before me the request is for an order granting a stay of the order of the Arbitrator dated February 3, 2017.

[12] The test for a stay is set out in RJR MacDonald Inc. v. Canada (Attorney General,[^1] namely the moving party must persuade the court that there is a serious issue to be tried; that the applicant will suffer irreparable harm if the stay is not granted; and that the balance of convenience favours the applicant.

A. Issues to be tried

[13] Counsel for the applicant takes the position that the first issue is whether the Director’s Delegate failed to consider the impact of s. 66(3) of the Courts of Justice Act on the decisions in Igbokwe v. HB Group Insurance Management Ltd.,[^2] and Walker v. Allstate Insurance Co.[^3] The second issue is whether the Director’s Delegate misread s. 9.1(10) and (11) of the Amended Settlement Regulation, R.R.O. 1990, Reg. 664.

[14] Counsel for Aviva responded in detail to the applicant’s factum on this point. However, in response to my question counsel for Aviva acknowledged, for purposes of this motion only, that the issues as framed could be construed as “serious” within the context of the low threshold that the moving party in a stay motion must cross. Counsel emphasized that while he acquiesced in the first aspect of the test, he did not accept that the “apparently plain misreading of the Amended Regulation” was so serious that it should favour a stay.

[15] While the Applicant may not succeed on either of those issues, neither is a frivolous issue. The Applicant has met the first aspect of the test.

B. Irreparable Harm

[16] The factum and submissions on behalf of the Applicant focused on delay and denial of justice. Counsel speculated about prospective appeals and the risk of irreparable harm by potentially inconsistent decisions if the adjudication on the merits is fragmented.

[17] According to counsel for the Applicant the main issues in dispute in the three arbitrations are significantly related and intertwined. In the first accident, the main issue is weekly income loss benefit since 1993, when the benefit was terminated, and on-going. In the second accident, the main issue is also the weekly benefit since 1996 and on-going. In the third accident, a main issue is the level of disability to support a claim for weekly non-earner benefit from 1997 and on-going. Counsel takes the position that all three must be heard and decided by the same Arbitrator.

[18] In support of the motion for a stay, counsel has provided the affidavit of a law clerk who set out the procedural history. It is silent on irreparable harm. The motion record also included an affidavit of the Applicant sworn January 15, 2016 in the context of the preliminary issues but it did not address irreparable harm. There is no evidence from the Applicant as to irreparable harm.

[19] As the Supreme Court held in RJR MacDonald at page 341, “irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

[20] It does not lie in the mouth of the Applicant to argue that delay will cause him irreparable harm given that the accidents were in January 1990, January 1996 and March 1997 yet he took many years to pursue these claims. Furthermore, speculation as to delay and, if the Application for Judicial Review is successful, the prospect of having an arbitration arising from the first accident on a different occasion and before a different arbitrator do not constitute irreparable harm. It may be that it would be more efficient to have all three arbitrations heard at the same time but that does not create irreparable harm. Ultimately the Applicant could be financially compensated if his claims are allowed.

[21] The Applicant has not met the second aspect of the test.

C. Balance of Convenience

[22] Counsel for the Applicant took the position that a stay would permit the adjudication of the disputes with respect to the three accidents to be heard on their merits. Counsel was of the view that if the stay were granted, that the hearing of the three arbitrations back to back now scheduled for October 31, 2017 would proceed. I will comment below on whether it is realistic to expect that the hearing arising from the first accident will occur if a stay is granted.

[23] Counsel for the Applicant also asserted that a refusal of the stay would likely represent significant harm amounting to a failure of justice for the applicant.

[24] Counsel for Aviva took the position that a stay would not permit the arbitration hearing on the merits of all three actions to proceed more quickly. He argued that a stay achieves nothing more than a suspension of the order presumably pending a decision by the Divisional Court in relation to the Judicial Review Application. Furthermore, if the hearing on the first accident took place before the Divisional Court decided on the judicial review of the preliminary ruling, it would result in the time, expense and inconvenience of an unnecessary hearing.

[25] Since the issues at stake are financial, the balance of convenience is a neutral factor and hence the Applicant has not met the third aspect of the test.

D. Just and Equitable

[26] In this case there is an additional concern as to whether it is just and equitable to grant a stay.

[27] In responding to my questions about the impact of the stay order, if granted, Mr. Doan took the position that the stay would have the effect of maintaining the “status quo” namely that the combined hearing of all three Arbitrations would take place in October, 2017 as contemplated in the letter dated November 23, 2016.

[28] I disagree for these reasons. First, an order for stay has no impact when the order in question directs that a hearing not be held. There is nothing to stay[^4]. The letter dated November 23, 2016 that assigned a combined hearing at 3 days each was predicated on the in-writing hearing on the preliminary issues. Indeed, depending on the outcome of the rulings on the preliminary issues, the hearing might not have been needed. It is unrealistic to assume that a stay would resurrect a planned combined hearing.

[29] Second, according to that scenario, the Applicant would achieve on his motion to stay his ultimate objective in the Notice of Application. In other words he would obtain the outcome he seeks without a hearing into the merits of the Application for Judicial Review. That is not a proper use of an equitable remedy.

[30] Third, the parties agreed that certain issues would be decided in a preliminary in-writing procedure. They are expected to comply with their consent and carry on with the remaining hearing. It would introduce inappropriate fragmentation if the court granted a stay on one aspect of the preliminary issues.

Costs

[31] Counsel for the Applicant and for Aviva agreed to costs in the amount of $5000 but did not agree as to timing of payment, whether left to the panel hearing the application for judicial review or paid in the immediate future. The Applicant has not been successful and is required to pay costs. But I will not impose a deadline for payment.

ORDER TO GO AS FOLLOWS:

[32] The motion for a temporary stay of the order of the Arbitrator dated February 3, 2017 and of the Director’s Delegate dated July 21, 2017 is dismissed.

[33] The Applicant shall pay costs to the Respondent Aviva in the amount of $5000. No costs payable by or to the Financial Services Commission of Ontario.

Kiteley J.

Date: September 25, 2017

[^1]: 1994 117 (SCC), [1994] 1 S.C.R. 311 [^2]: 2001 3804 ONCA [^3]: [2002] 44970 ONCA [^4]: Sarpong v. TD Home and Auto Insurance Co., [2008] O.F.S.C.D. No. 39 at para. 16; Harper v. Canada (Attorney General) 2000 SCC 57, [2000] S.C.J. No. 58 at para. 7