Mooney v. Wawanesa Mutual Insurance Company, 2023 ONSC 781

CITATION: Mooney v. Wawanesa Mutual Insurance Company, 2023 ONSC 781

DIVISIONAL COURT FILE NO.: 133/19 DATE: 20230207

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Nishikawa and Shore JJ.

BETWEEN:

CAROLYN MOONEY

Leonard Kunka, for the Applicant

Applicant

– and –

WAWANESA MUTUAL INSURANCE

Katherine E. Kolnhofer and Brenda

COMPANY and FINANCIAL SERVICES

Lockwood, for Wawanesa

COMMISSION OF ONTARIO

Jessica Fiore, Kari Chan and Kathleen

Respondents

Lindsey, for FSCO

HEARD at Toronto (by videoconference):

September 13, 2022

REASONS FOR DECISION

D.L. Corbett J.

1This application for judicial review arises from a decision of Director’s Delegate David Evans (the “Delegate”) dated February 13, 2019 (the “Decision”), upholding a decision of Arbitrator Huberman dated June 26, 2017, respecting claims for interest and costs.

2I conclude that the Applicant’s interest argument is foreclosed by this court’s decision in Grigoroff v. Wawanesa Mutual Insurance Company, 2015 ONSC 3585 (“Grigoroff”). I conclude that the Arbitrator’s costs decision was discretionary and the Director’s Delegate’s decision upholding the Arbitrator’s costs award was reasonable. Therefore, for the reasons that follow, this application is dismissed.

Jurisdiction and Standard of Review

3There is no right of appeal from the Decision: Insurance Act, RSO 1990, c.I.8, s.283.

4This court has jurisdiction over an application for judicial review of the Decision pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, RSO 1990, c.J.1.

5The presumptive standard of review of the Decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 10; Wawanesa Mutual Insurance Company v. Renwick, 2020 ONSC 226, paras. 42-49; Belair Direct Insurance Company v. Green, 2018 ONSC 2782, para. 17. The issues raised by the applicant concern a specific statutory framework and its application to awards of interest and costs associated with accident benefit claims. The applicant argues that these issues raise questions of general importance to the legal system. I do not accept that argument: these are issues particular to accident benefits claims and fall squarely within the specialized expertise and mandate of the tribunal below. The proper standard of review in this court is reasonableness.

The Interest Issue

6The interest issue concerns a retroactive calculation of benefits entitlement. In respect to this issue, the Delegate found as follows:

In Grigoroff, there had been an initial assessment of attendant care needs for the period January 20, 2002 to August 1, 2003. The revised assessment was not filed until February 2009. The Court found that the payment was only overdue 10 business days after that later assessment. In this case, there were initial assessments that were later overridden by the higher assessment, just as in Grigoroff….

The Arbitrator had evidence before him that Wawanesa had calculated and paid interest owing from 10 days after Ms Kadanoff’s first retroactive form was filed. He was therefore correct to state that Ms Mooney was not entitled to an award of interest for the overdue payment of attendant care benefits. (Reasons, p.11)

7The case referenced by the Delegate, Grigoroff, is indistinguishable from the case at bar. In that case, retroactive application was made following a decision by a jury in related civil proceedings. This court, construing the SABS regime, determined that interest did not run as of the date of the jury’s verdict, but as of the (much) later date the first retroactive claim form was filed.

8The Applicant’s submissions fail to distinguish Grigoroff, which is established long-standing authority directly on point. In trying to distinguish Grigoroff, the applicant made the following arguments:

a. Arguments based on the text of the applicable legislation, but as subsequently amended. Grigoroff is based upon the same legislation that applies to the case at bar and cannot be distinguished by recourse to amendments to the legislation.

b. Arguments from first principles about the compensatory, rather than punitive, nature of awards of interest, with particular reliance on the Court of Appeal’s decision in Attavar v. Allstate Insurance Co. of Canada (2003), 2003 7430 (ON CA), 63 OR (3d) 199 (CA). Arguments from first principles cannot overcome express statutory language. Further and in any event, these arguments from first principles do not assist the applicant. Interest awards are compensatory, as was the interest award made in this case. The law generally fixes the commencement date for interest at one of two times: (i) the date the payor committed a legal wrong giving rise to the liability to pay the claimant, and (ii) the date on which the claimant commenced the claim. In the case at bar, the legislature has fixed the commencement date as the date on which the claim was commenced, and in particular, the date on which the first retroactive claim was filed.

c. Arguments that this case is distinguishable from Grigoroff because, in this case, the initial benefits were calculated based on an assessment by an occupational therapist retained by Wawanesa, and Ms Mooney was unrepresented at the time. I do not accept that this is a basis for distinguishing the cases. It was Ms Mooney’s decision to proceed unrepresented. That decision cannot establish an exception to the statutory language governing the date on which interest commences.

9This court reviewed this issue in Grigoroff (at paras. 12-19, 25-26), including addressing arguments based on Attavar (Decision paras. 21-25). There is no need for this panel of this court to repeat that analysis. Grigoroff disposes of the interest issue authoritatively, and there is no basis for this court to interfere with the Delegate’s decision to this effect.

Claim for Costs

10The Applicant raises two issues of principle in respect to the award of costs: the failure to take proper account of the Applicant’s “Offer to Settle” and (ii) the conclusion that an award cannot be made for costs under the authority to make a “special award”.

11I conclude that the Delegate addressed both of these issues of principle reasonably. In particular, the Rules of Civil Procedure do not apply to the proceedings below. The Arbitrator was entitled to take account of the “conduct of the parties” in exercising his discretion as to costs. He did that. Offers to settle could be considered under this rubric, but it is not necessary that they be so considered. The legislation contains provisions addressing costs, and these provisions were reviewed in detail and applied by the Arbitrator and by the Delegate. The Delegate concluded that the costs provisions in the legislation cannot be sidestepped by making an additional “special award” based on legal costs not recoverable under the legislation. I see no basis upon which to interfere with this conclusion.

12Costs awards are highly discretionary. No error in principle has been identified in the costs award made by the Arbitrator, and the Delegate’s decision to uphold that award was reasonable.

Disposition

13I would dismiss the application for judicial review, with costs payable by the Applicant to the Respondent Wawanesa fixed at $10,000, payable within thirty days. There shall be no costs for or against FSCO.

“D.L. Corbett J.”

I agree “Nishikawa J.”

I agree “Shore J.”

Date of Release: February 7, 2023

CITATION: Mooney v. Wawanesa Mutual Insurance Company, 2023 ONSC 781

DIVISIONAL COURT FILE NO.: 133/19 DATE: 20230207