Neutral Citation: 1995 ONICDRG 46
File No. A-013485
ONTARIO INSURANCE COMMISSION
BETWEEN:
STAMATIOS TOGIAS
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION ON PRELIMINARY ISSUE
Issues:
On January 30, 1995, Stamatios Togias filed an Application for Arbitration. The Co-operators General Insurance Company takes the position that Mr. Togias is precluded from pursuing arbitration on the grounds that he selected his forum when he issued a Statement of Claim against the Insurer.
The preliminary issue is:
Is Mr. Togias precluded from referring his dispute with Co-operators as to statutory accident benefits to an arbitrator?
Result:
Mr. Togias may proceed with the arbitration.
Hearing:
The preliminary issue was dealt with by oral submissions made at the pre-hearing discussion of this matter on April 24, 1995 in North York. The following documents were before me:
Report of Mediator dated December 16, 1994.
Application for Arbitration dated January 25, 1995.
Response by Insurer dated February 24, 1995.
Notice of Discontinuance dated March 23, 1995 discontinuing court action against Co-operators Insurance Company only.
Letter from counsel for the Insurer dated April 19, 1995 giving Notice of Application.
Reasons for Decision:
The Applicant was injured in a motor vehicle accident on September 17, 1991. On September 24, 1991, the Insurer commenced paying weekly income benefits pursuant to section 12 of the Schedule1. On September 14, 1993, the Applicant issued a Statement of Claim in Ontario Court (General Division) against the tortfeasor for personal injury damages and against Co-Operators General Insurance Company for statutory accident benefits. Counsel for the Applicant said that he included a claim against the Insurer in the tort action out of caution, because the limitation period for claiming against the tortfeasor was about to expire. There was no suggestion by the Insurer that the Applicant issued the Statement of Claim to gain a tactical advantage.
On September 24, 1994, the Insurer stopped paying weekly income benefits.
The Applicant then referred the dispute of entitlement to weekly income benefits to a mediator pursuant to section 280(1) of the Insurance Act, and in a report dated December 16, 1994, the mediator indicated that mediation had failed.
On January 30, 1995, the Applicant filed this Application for Arbitration with respect to entitlement to weekly income benefits and the Insurer filed its Response.
It appears that in early March 1995, the Insurer took the position that the Applicant was precluded from pursuing this arbitration on the grounds that he had selected his forum when he issued a Statement of Claim against the Insurer. By Notice of Discontinuance dated March 23, 1995, the Applicant discontinued his court action against the Insurer.
In this application, the Insurer argues that issues in the court action and in this arbitration are closely connected and deal with the Applicant's ability to work. Similar evidence will be adduced at both proceedings, and in order to avoid multiple proceedings and to eliminate the possibility of inconsistent findings, it is more appropriate that all matters be dealt with in the court proceeding as it is more encompassing. The Insurer referred me to section 107 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, Ana Oliveira and Markel Insurance Company of Canada, February 6, 1995, OIC File No. A-006434 and Abdul Bapoo and Co-operators General Insurance Company, October 3, 1994, OIC File No. A-006212.
The Applicant argued that he decided to refer the dispute concerning his entitlement to weekly income benefits to arbitration, instead of bringing a proceeding in court, because the arbitration process is speedier and less expensive than court.
Section 281(1) provides as follows:
281(1) If mediation fails, the insured person may bring a proceeding in a court of competent jurisdiction or may refer the matter to an arbitrator.
Section 107 of the Courts of Justice Act provides for transferring, consolidating and staying proceedings involving two or more proceedings in two or more courts. An arbitrator is not a court and section 107 does not apply to this tribunal.
Nor do the Bapoo and Oliveira arbitration decisions apply to this fact situation.
In Bapoo, the arbitrator declined jurisdiction to determine the insured person's claim for a special award pursuant to section 282(10) of the Insurance Act, and for interest pursuant to section 24 of the Schedule, not because there was a proceeding in court dealing with the same issue, but because there was no claim for benefits in the application for arbitration upon which a special award or an award of interest could be based.
In Oliveira the issue was whether the Applicant was precluded from referring one accident benefit issue in dispute to arbitration where she had brought a court action against the same insurer in respect of another accident benefit dispute arising from the same accident. The Insurer relied on a statement in that decision that an insured's right to refer a matter in dispute to a court or an arbitrator is limited by three factors. The third factor is that the "insured person must not have commenced a proceeding in the other forum with respect to the same matter". However, that limitation must be read in the context of the entire reasons for decision.
The Oliveira decision recognizes that the legislation does not compel an insured to refer all disputes with the insurer to one forum only. The decision recognizes that the insured person may in some circumstances refer certain accident benefit issues to the courts for resolution and other accident benefit issues to arbitration.
The fact situation in this case is similar to that of John Gouliaeff and Commercial Union Assurance Company, August 26, 1993, OIC File No. A-003996. Mr. Gouliaeff commenced a court action for accident benefits. He then applied for mediation, and after mediation failed, he applied for arbitration. The arbitrator held:
According to section 281(1) of the Insurance Act, the insured person is allowed to decide between court and arbitration after mediation has failed. Following the mediation in this case, Mr. Gouliaeff promptly applied for the appointment of an arbitrator. In my opinion, this was an election to proceed by way of arbitration, rather than in court.
Similarly, in the instant case, Mr. Togias promptly applied for appointment of an arbitrator following the failure of mediation. This was an election to proceed by way of arbitration, rather than in court. He confirmed the election to refer the accident benefits dispute to arbitration by discontinuing his court action against the Insurer.
One of the purposes of the statutory accident benefits regime is to provide a speedy, informal and inexpensive process for adjudicating disputes concerning accident benefits. This purpose would be defeated in the case of Mr. Togias if he was compelled to have his claim for accident benefits adjudicated along with his tort claim.
Order:
- The Applicant may proceed with this arbitration.
May 4, 1995
William J. Renahan
Arbitrator
Date