CITATION: Aviva Canada Inc. v. Comegna, 2019 ONSC 4435

DIVISIONAL COURT FILE NO.: 558/17 DATE: 20190723

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, BACKHOUSE, and WILTON-SIEGEL JJ.

BETWEEN:

AVIVA CANADA INC.

Derek Greenside, for the Applicant

Applicant

– and –

COLLEEN COMEGNA and the FINANCIAL SERVICES COMMISSION OF ONTARIO

Andrew Franzke, for the Respondent Colleen Comegna

Kari Chan and Sona Dhawan, for the Respondent Financial Services Commission of Ontario

Respondents

HEARD at Toronto: July 23, 2019

WILTON-SIEGEL J. (Orally)

1The applicant, Aviva Canada Inc. (the “applicant”), seeks judicial review of the appeal order made August 24, 2017 of the Director’s Delegate Jeffrey Rogers (the “Director’s Delegate”) of the Financial Services Commission of Ontario (the “Order”). The Order partially rescinded the arbitration award dated February 21, 2017 of Arbitrator Charles Matheson (the “Arbitrator”) (the “Arbitration Award”) and directed that the issues of entitlement of the respondent, Colleen Comegna (the “Respondent”), to non-earner benefits (“NEBs”) and to any special award be remitted to a de novo hearing before a different arbitrator.

Motion for Fresh evidence

Motion for Fresh Evidence

2As a preliminary matter, the applicant sought an order permitting the introduction of fresh evidence in the form of the facta submitted to the Arbitrator, the transcript of the arbitration hearing, and the written submissions to the Director’s Delegate. The motion was dismissed earlier for the following reasons.

3This proceeding is not an appeal. Therefore, s. 134(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 does not apply.

4On an application for judicial review like the present one, this Court is tasked with determining the reasonableness of the administrative decision-maker’s decision based on the evidence that was before the decision-maker.

5As set out in Namgis First Nation v. Canada (Fisheries & Oceans), 2019 FCA 149, evidence that was not before the administrative decision-maker is only admissible in judicial review proceedings in exceptional circumstances – for example, to demonstrate bias or a denial of procedural fairness (at para. 10). This is because the initial decision-maker is the “merits decider”, not the courts. There are no exceptional circumstances in the present case that justify the admission of this evidence.

6In this case, this Court is reviewing the decision of the Director’s Delegate who was hearing an appeal on a question of law from a decision of an arbitrator. This Court should do so on the basis of the record before the Director’s Delegate.

7In any event, none of the evidence that the applicant seeks to introduce will assist this Court in its judicial review function. In particular, insofar as the applicant seeks the introduction of such evidence to demonstrate that the Director’s Delegate erred in proceeding on the basis that the Arbitrator failed to address certain issues, such evidence is unnecessary. The parties agree that such issues were raised in the arbitration.

8Accordingly, the motion to admit fresh evidence was dismissed.

the merits of the application

The Merits of the Application

9The parties agree that the standard of review of the Order is reasonableness. As mentioned, the appeal before the Director’s Delegate was limited to questions of law and accordingly the issue for this Court is whether the determination of the Director’s Delegate on the legal issues raised before him was unreasonable.

10In our view, the Order was reasonable on the following grounds.

11The Director’s Delegate made two principal determinations.

12First, he determined that the Arbitrator failed to address the respondent’s submissions that the scheduled examination by Dr. Syed was not reasonable and necessary and that her conduct did not constitute a failure or refusal to comply with s. 44 of the Statutory Accident Benefits Schedule, O.Reg 34/10. Without addressing these issues, the Arbitrator held that the respondent’s failure to attend the examination precluded commencement of a mediation proceeding and therefore proceeding to arbitration.

13Second, he determined that the Arbitrator had failed to address the respondent’s claim for NEBs for the period prior to the date of the scheduled examination by Dr. Syed. The applicant concedes that the Arbitrator failed to address this issue and that the Arbitrator failed to make the necessary findings that would permit a determination to be made by the Director’s Delegate or otherwise on this issue.

14In our view, the Director’s Delegate reasonably concluded that, with respect to both issues, the Arbitrator erred in law. Indeed, the applicant conceded that the Arbitrator erred in failing to address the respondent’s entitlement to NEBs prior to the scheduled examination.

15With respect to the first issue, the applicant submits that the Arbitrator did address these issues even if not explicitly. It suggests that the evidence that the examination was reasonable, and that the respondent’s conduct amounted to a failure or refusal to comply with s. 44, was so overwhelming that it must be inferred that the necessary findings were implicit in the Arbitrator’s determination.

16In our view, it was reasonable to conclude that the Arbitrator’s failure to address these issues on an explicit basis constituted an error of law. It is not clear from the Arbitration Award that the Arbitrator addressed these questions which are material to any determination regarding a claimant’s entitlement to mediation and arbitration. In this regard, we note that in the decision of Volpe v. Co-operators General Insurance Company, 2017 ONSC 261, to which the Arbitrator referred in the Arbitration Award, an explicit finding was made on the reasonableness of the request for an examination.

17As mentioned, the Director’s Delegate set aside the Arbitration Award and remitted the foregoing issues to a different arbitrator to be determined in a de novo hearing.

18The applicant argues that the Director’s Delegate erred in law in so doing. It submits that the Director’s Delegate should have made the necessary findings of fact relevant for a determination of the foregoing issues or alternatively remitted the determination of these issues to the Arbitrator.

19It is not clear that the Director’s Delegate had the authority to make the necessary findings of fact to decide the foregoing issues. Even if he did however, the Director’s Delegate’s decision involved the exercise of a discretion. We see no error in principle in his decision, particularly in view of the number of findings required to address these issues.

20In fairness to all parties, it is also reasonable to have the matter reheard by a new arbitrator to avoid any appearance of pre-determination of the issues by the decision-maker. We note that in view of the need for findings of credibility it also is not reasonable to conduct a new hearing on the basis of a written record.

21Finally, we note that the applicant also submitted that this Court should make the necessary factual findings in order to determine these issues. In our view, in this administrative scheme, the Legislature has conferred the fact-finding role on the Arbitrator with an appeal on a question of law to the Director’s Delegate. It is not this Court’s role to act as a fact finder in this case.

22For the foregoing reasons, the application for judicial review is dismissed.

SWINTON J.

Endorsements

23I have endorsed the Motion Book as follows: “For oral reasons delivered today, the motion for fresh evidence is dismissed.”

24I have endorsed the Application Record of the applicant as follows: “This application is dismissed for oral reasons delivered today. Costs to the respondent fixed at $7,500. FSCO does not seek costs.”

___________________________ Wilton-Siegel J.

I agree

Swinton J.

I agree

Backhouse J.