Neutral Citation: 1994 ONICDRG 106
File No. A-005546
ONTARIO INSURANCE COMMISSION
BETWEEN:
ROSIE BUCH
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Rosie Buch, was injured in a motor vehicle accident on March 13, 1993. She applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot") payable under Ontario Regulation 6721. Benefits were terminated by Pilot in May, 1993 and the Applicant referred her disputes to mediation.
Pilot claims that all the matters in dispute were settled at mediation, and therefore the Applicant cannot proceed to arbitration. The Applicant denies a settlement was concluded. The preliminary issue to be determined is:
Did the parties settle their disputes at mediation?
Result:
The matters in dispute between the parties were settled at mediation. Accordingly, the Applicant cannot refer these matters to an arbitrator for determination.
Hearing:
The hearing was held in Pembroke, Ontario, on August 3, 1994, before me, Frederika Rotter, Senior Arbitrator. The hearing was re-opened on September 26, 1994, at North York, Ontario, for the presentation of additional information. That information was not relevant to the determination of the preliminary issue before me, and so I have not referred to it in my reasons for decision.
Present at the Hearing:
Applicant: Rosie Buch
Applicant's Representative: Richard Llewellyn, Barrister and Solicitor
Insurer's Representative: Rudolph Lobl, Barrister and Solicitor
Witnesses: Rosie Buch, the Applicant; Brenda McKillen, Supervisor of Accident Benefits - Pilot Insurance
Documents before the Arbitrator
Exhibits:
Exhibit 1 Letter from Pilot Insurance, dated August 26, 1993
Exhibit 2 Letter from Pilot Insurance, dated November 22, 1993
Exhibit 3 Charts from Pilot Insurance, regarding benefits paid
Exhibit 4 Insurer's Production Brief
Exhibit 5 Letter from Pilot Insurance dated May 3, 1993
Exhibit 6 Copy of unexecuted Release
Other documents before the arbitrator
Report of Mediator dated August 30, 1993
Application for Appointment of an Arbitrator, dated October 13, 1993
Response by Insurer, dated November 29, 1993
Pre-hearing letter, dated March 31, 1994
Cases referred to:
Raj Aggarwal and Allstate Insurance Company of Canada, June 17, 1993, OIC File No. A-002621
Raj Aggarwal and Allstate Insurance Company , (Appeal decision) June 30 ,1994, OIC File No. P-002621
Fahimeh Abedi and Pilot Insurance Company, May 3, 1993, OIC File No. A-002705
Nikolaos Mouriopoulos and the Citadel General Assurance Company, March 23, 1993, OIC File No. A-002166
Samuel David and Simcoe & Erie General Insurance Company, July 15, 1994, OIC File No. A-006399
Mehmet Tuzin and Allstate Insurance Company of Canada, May 28, 1992, OIC File No. A-000596
Evidence and Submissions:
The question in this case is whether the parties settled their disputes at mediation. If a binding settlement was reached at mediation, then Ms. Buch cannot proceed to arbitration. The Insurance Act protects the rights of parties to resolve disputes through negotiation and settlement, by providing, at section 279 (2):
(2) Any restriction on a party's right to mediate, litigate, arbitrate, appeal or apply to vary an order as provided in sections 280 to 284 is void except where the restriction forms part of a settlement.
Pilot's evidence in support of its claim that this matter was settled was not seriously contested by Ms. Buch.
Brenda McKillen, a supervisor of accident benefits at Pilot's head office, testified that she participated in the mediation on behalf of Pilot. She testified that the mediation took place by means of a telephone conference call, and that the other parties present on the call were the mediator, the Applicant's representative, Mr. Llewellyn, and the Applicant herself.
Ms. McKillen testified that the Applicant was present at the telephone call and spoke on her own behalf from time to time. She remembered conversing directly with Ms. Buch. She stated that the Applicant's counsel did not have an intercom or speaker telephone, and so the Applicant and her counsel were obliged to share access to the telephone. However, the Applicant appeared to be present and available to her counsel at all times.
Ms. McKillen testified that the mediation discussion was lengthy and dealt with many different items. She testified that eventually, she made a proposal, through the mediator, to deal with Ms. Buch's claim for weekly income benefits. She testified that at that point, Ms. Buch and Mr. Llewellyn excused themselves for a few minutes. Mr. Llewellyn then returned to the telephone and accepted the offer for weekly income benefits, provided that an additional amount for mileage claims was also included.
Ms. McKillen testified that her understanding was that the parties were settling the claim for weekly income benefits and care benefits. She stated that Pilot accepted that Ms. Buch had ongoing claims for supplementary medical and rehabilitation benefits, which would be honoured.
Ms. McKillen testified that she felt both sides understood the agreement. The mediator reviewed the terms of the agreement, over the telephone, expressly to ensure that both sides understood. At that point, Ms. Buch made no comment that would indicate that she did not understand or agree to the proposed terms of the settlement.
Ms. McKillen stated that after the telephone discussion ended, she immediately had a release prepared, and issued two cheques, one to cover the