Court File and Parties
CITATION: Wang v. Unifund Assurance Company, 2019 ONSC 4217
DIVISIONAL COURT FILE NO.: 196/18
DATE: 2019/07/11
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Yong Wang, Moving Party/Appellant
AND:
Unifund Assurance company, Responding Party/Respondent
BEFORE: Sachs J.
COUNSEL: Yong Wang, appeared in person
Jocelyn Tatebe, for the Responding Party
HEARD at Toronto: July 10, 2019
ENDORSEMENT
[1] On June 19, 2017 Arbitrator Dory found that Mr. Wang was not entitled to attendant care or housekeeping benefits. On March 5, 2018 this decision was upheld by Director’s Delegate Rogers. On April 3, 2018 Mr. Wang filed his Notice of Appeal appealing both these decisions. On April 26, 2019 Mr. Wang’s appeal was dismissed by the Registrar for delay.
[2] This is a motion by Mr. Wang seeking to set aside the Registar’s order of dismissal.
[3] In exercising my discretion as to whether or not to set aside the Registrar’s order I must take into account the following four factors:
Was there a settled intent to appeal within the time prescribed to appeal?
The length of the delay and the explanation for the delay.
Prejudice to the responding party.
The merits of the appeal. (Lichtenstein v. Bathurst Towers Inc., 2013 ONSC 1432 at para.11)
[4] In this case Mr. Wang filed his Notice of Appeal within the prescribed time.
[5] Since filing his appeal Mr. Wang has taken no steps to perfect it. His explanation for this delay of over a year is that he cannot afford to pay the costs of the transcripts. In fact, he wished me to make an order that Victory Verbatim, the reporter who transcribed the arbitration, be ordered to hand over their recordings to another, allegedly cheaper service for transcription. I question my ability to make such an order, but certainly it would not be appropriate to make the order without hearing from Victory Verbatim. At this point, absent such an order, Mr. Wang (who insists the transcripts are necessary to pursue his appeal) has no plan to move forward with his appeal.
[6] Other than the prejudice that arises to any party from delay the Respondent has put forward no evidence of prejudice.
[7] The last issue I must examine is whether Mr. Wang’s appeal has any merit. Mr. Wang was unsuccessful at the arbitration because he provided no evidence to support his claims for attendant care or housekeeping expenses. His appeal to the Director’s Delegate was dismissed because the Director’s Delegate found that Mr. Wang’s Notice of Appeal to him did not identify any errors of law that had been committed by the arbitrator.
[8] The Divisional Court’s jurisdiction on appeals from the Director’s Delegate is also confined to errors of law. In his Notice of Appeal to this court Mr. Wang asserts that:
(a) The Arbitrator acted in bad faith and lied to him.
(b) The Arbitrator abused his power and made up the truth. According to Mr. Wang, this is supported by the fact that at the mediation Mr. Wang was offered money to resolve the issues that were the subject of the arbitration.
(c) The Arbitrator arbitrarily enlarged the period for which benefits were claimed.
(d) The Arbitrator randomly expanded his legal jurisdiction by finding that Mr. Wang was not entitled to interest on overdue benefits.
(e) The Arbitrator applied a double standard when he found that Mr. Wang could not address the issue of whether Mr. Wang had a catastrophic impairment because that issue had not been the subject of mediation and yet the arbitrator did address the issue of interest when it had not been mediated.
(f) The Arbitrator had no ability to make a correct decision on the evidence provided.
(g) The Arbitrator abused the law.
(h) The Director’s Delegate and the Arbitrator did not follow the law because the insurer had made Mr. Wang a settlement offer at the mediation.
[9] In my view, none of these grounds of appeal have any merit. Offers to settle cannot be disclosed to decision makers until after they have made their decision. The fact that the insurer may have been prepared to settle prior to the hearing says nothing about whether Mr. Wang put forward sufficient evidence at the hearing that he was entitled to benefits. The Arbitrator appropriately decided what period of time Mr. Wang could claim benefits for and appropriately decided that Mr. Wang could not claim that he was catastrophically impaired at such a late date. The fact that the Arbitrator dismissed the claim for interest flows from the fact that Mr. Wang was not entitled to any benefits. There is no basis for the allegations of bad faith, lying or abuse.
[10] If I had found that Mr. Wang’s appeal had merit I would have set aside the Registrar’s order and granted him more time to perfect his appeal. However, because I have found that his appeal has no merit, I am dismissing Mr. Wang’s motion to set aside the Registrar’s order.
[11] The Respondent is not claiming costs and none are ordered.
Sachs J.
Date: July 11, 2019