Neutral Citation: 1995 ONICDRG 107

File Nos. P-000951 & V-000951; P-004495 & V-004495

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BETWEEN:

DOROTHY SITTLER

Applicant (Respondent)

and

CANADIAN GENERAL INSURANCE COMPANY

Insurer (Appellant/Applicant on Variation)

AND BETWEEN:

DOROTHY SITTLER

Applicant (Respondent)

and

PILOT INSURANCE COMPANY

Insurer (Respondent)

DECISION

I. NATURE OF PROCEEDINGS

By Notice of Appeal filed March 18, 1994, Canadian General Insurance Company (the appellant) appeals from the decision of Arbitrator Nancy Makepeace, dated December 3, 1993 which determined the appellant, and not Pilot Insurance Company (the respondent insurer) is responsible for payment of any statutory accident benefits to which Dorothy Sittler (the respondent) may be entitled.

The orders sought by the appellant are:

1. An extension of time for requesting an appeal pursuant to s.283(3) of the Insurance Act, R.S.O. 1990, c.I-8 (the Act);

2. A finding that the respondent insurer is liable to pay any statutory accident benefits to which the respondent may be entitled;

3. Repayment of any statutory accident benefits paid to the respondent.

Accompanying the Notice of Appeal is an Affidavit of the appellant’s assistant vice-president setting out the appellant’s position in this appeal and in a Variation/Revocation Application, filed contemporaneously with the appeal.

The respondent insurer does not object to the filing of the Affidavit. The Affidavit was accepted as comprising part of the appellant’s written submissions which include Bulletin No. 3/94 issued by the Ontario Insurance Commission and the case of AXA Home Insurance Company v. Western Assurance Company, a decision of Mr. Justice Roberts of the Ontario Court (General Division) released February 16, 1994.¹

The respondent did not file a Response or take any position in the appeal and variation application. The respondent insurer filed Responses in both proceedings.

These proceedings are being determined on the record. In addition to the materials and submissions noted, the record includes the record of the arbitration hearing as set out in the arbitral decision. No arbitration has yet been held to determine whether the respondent is entitled to any benefits under the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (O.Reg. 672, R.R.O. 1990).

II. APPEAL

1. Extension of Time for Appeal

Section 283(2) of the Act provides that a written Notice of Appeal must be delivered to the Commission within 30 days after the date of the arbitrator’s order. Here, the Notice of Appeal was filed some three and one-half months after the decision’s release.

The Director may, by s.283(3) of the Act, extend the time for requesting an appeal either before or after the 30 days has expired if satisfied the appellant has met a two-fold test that:

• there are apparent grounds for granting relief to the person, and;

• there are reasonable grounds for applying for the extension.

In its Affidavit submissions, the appellant states:

“Upon review of the reasons of Arbitrator Makepeace, Canadian General Insurance Company considered an appeal. (It) did not agree with the conclusion reached...but did conclude there had been an enunciation of a clear rule which, applied equally to all insurers in all circumstances, was a rule that (it) could accept and deal with.”

The appellant changed its mind, however, when it came into possession of two documents it alleges show the arbitral decision is wrong in law.

The first is a bulletin issued March 2, 1994 by the Ontario Insurance Commission entitled “Rental Vehicles and the Priority Rules”. The bulletin notes that the “comments” in it are directed at “certain amendments to the Insurance Act arising out of Bill 164 and how these changes relate to the priority of payments with respect to rental cars”. The bulletin does not purport to deal with any specific situation nor with the pre-1994 Schedule being interpreted by the arbitrator in this case. I find the bulletin is not relevant to the issue under appeal nor does it provide an apparent ground for granting relief to the appellant.

Secondly, the appellant relies on the decision of Justice Roberts in the Axa Home case noted above. The impugned arbitral decision was cited to the court which disposed of it by indicating, in its view, the decision is incorrect in law. The court’s analysis of both the Act and the Schedule in the Axa Home decision is different from the arbitrator’s. Not surprisingly, the cases come to divergent conclusions on fairly similar facts.

In discharging their function as adjudicators concerned with the provision of statutory accident benefits to claimants, arbitrators enjoy a concurrent jurisdiction with the courts. The Commission provides an “alternative dispute resolution” mechanism, as claimants may choose either court proceedings or an arbitral process after mandatory mediation has proved unsuccessful. While it is preferable for courts and tribunals occupied with the same issues to, if not concur, at least not come to opposite conclusions on their resolution, such conflicts may inevitably arise.

The doctrine of stare decisis (binding precedent through various levels in the court system), does not apply in this case. It is not applicable to administrative decision makers at the same level. Nor does a decision of a first instance court necessarily create a binding authority for a tribunal of concurrent jurisdiction. The fact that a decision in another forum contradicts that of a Commission arbitrator is not, in my view, an apparent ground for granting relief to the appellant.

The test in s.283(3) of the Act, as stated in court and Commission appeal decisions², is broad and may include consideration of several factors, such as:

• the existence of a bona fide intention to appeal;

• the length of the delay in applying for the extension;

• the merits of the proposed appeal;

• any prejudice to the other party and whether it is compensable or not.

In this case there was no ongoing intention to appeal the arbitral decision. The appellant’s own submission is that an appeal was initially considered but finally not launched on the basis the appellant “could accept and deal with” the result. Not until several months later, when it appeared another result might be possible, did the appellant cast about for a means to set aside the original finding.

Chaos would result if, every time a court decision or a Commission pronouncement appeared to differ from a finding in an arbitration case, the Director granted an extension of time allowing an appeal of a decision that the parties have been living with peaceably to proceed. In the adjudicative scheme of the Act, decisions of the Director may be called into question on an application for judicial review before a court. The limits in that process are deliberate and recognize the need for flexibility when a specialized tribunal and a court consider similar issues. However, the fact that a trial court may disagree with a previous decision of the Commission, does not of itself lend significant weight in determining whether an extension of time for filing an appeal be granted.

As I find the matters raised by the appellant not to constitute apparent grounds for granting an extension of time to appeal, the appeal is dismissed.

III. VARIATION/REVOCATION APPLICATION

Canadian General Insurance Company (as applicant) also filed a variation application which is not subject to the temporal constraints of an appeal, thus extending the scope of possible avenues to overturn an arbitral decision. The relief sought by the applicant is the same; an order that it is not the insurer responsible for payment of statutory accident benefits to the respondent and repayment to it of any benefits paid.

Variation applications have limitations, however, as set out in s.284(3) of the Act:

“If the arbitrator or Director is satisfied that there has been a material change in the circumstances of the insured or that evidence not available in the arbitration or appeal has become available or that there is an error in the order, the arbitrator or Director may vary or revoke the order and may make a new order if he or she considers it advisable to do so.”

To demonstrate its application falls within the section, the applicant, in the initiating document states:

“The material circumstances of the entitlement of Dorothy Sittler to recover benefits from Canadian General Insurance Company has changed as a result of the promulgation of the Ontario Insurance Commission Bulletin No. 3/94 of March 2, 1994, the declaration of the Ontario Court (General Division) in Axa v. Western that the decision of Arbitrator Makepeace was an error in law. The order of Arbitrator Makepeace was in error.”

The affidavit in support of the appeal also speaks to the variation application:

“I believe there has been a material change in the circumstances of this case and of the evidence now available by way of the Insurance Commission’s bulletin which was not available at the time of the arbitration. Additionally, I believe that there is an error in the order of Arbitrator Makepeace. ...I therefore believe that this is an appropriate case for revocation or variation of the order of the arbitrator in this matter.”

I have no evidence that there has been any material change in the circumstances of the respondent, Dorothy Sittler. Her entitlement to statutory accident benefits has not been determined. Whether benefits are paid by this applicant or another insurer is of no real consequence to the respondent so long as any benefits ordered to be paid to her are indeed paid. In my view, the words “material change” in s.284(3) refer generally to the particular circumstances of an insured person, for example a change in his or her ability to perform the essential tasks of his or her occupation or employment. This aspect is highlighted where an order already exists for payment of benefits to an insured person, and an insurer must continue to pay under s.287 of the Act.

The Commission’s bulletin points out that the Regulation governing payment of statutory accident benefits was amended but that does not concern the respondent here. The court decision also is not a change in the respondent’s circumstances.

The affidavit asserts that the Commission’s bulletin is evidence not available at the time of the arbitration. The bulletin is a commentary that does not satisfy any evidentiary test, nor is it applicable to the legislation governing this case.

Lastly, the applicant says there is an error in the arbitrator’s order. The error alleged is that the decision itself is wrong in law - not simply a mistake or discrepancy in the order requiring correction, for example an arithmetic error or the formal order not accordingly with the reasons for decision. In my view, errors of law are precisely those caught by the appeal sections of the Act. There would be no reason for appeals to be circumscribed by timelimits, or carry with them the possibility of interventions and the ability to substitute a new order for that of an arbitrator, if errors of law could merely be subsumed under s.284. The submission that the arbitrator is wrong in finding the applicant responsible to answer the respondent’s claims is one to be addressed on appeal and is not properly the subject of an application de novo.

As none of the grounds set out in s.284 have been met, I decline to vary or revoke the arbitrator’s order.

III. ORDER

1. The appeal from the order of Arbitrator Makepeace is dismissed.

2. The application to vary or revoke the order of Arbitrator Makepeace is dismissed.

August 11, 1995

Elisabeth Sachs

Director of Arbitrations

Date

Footnotes

1. 1Now reported at 1994 CanLII 19785 (ON CTPD), [1994] I.L.R., 1-3033, 21 C.C.L.I. (2d) 120
2. 2See Miller Manufacturing and Development Co. v. Alden (1979), 13 C.P.C. 64 (Ont.C.A.); Joynson v. Williams (1984), 44 C.P.C. 203 (Ont.H.C.); Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont.C.A.); Epps and Co-operators General Insurance Company, (O.I.C. File No. P-002340, December 14, 1992).