Neutral Citation: 1996 ONICDRG 162
OIC A96-000142
ONTARIO INSURANCE COMMISSION
BETWEEN:
LEE TOMBOLINI
Applicant
and
JEVCO INSURANCE COMPANY
Insurer
DECISION on a PRELIMINARY ISSUE
Issue:
The Applicant, Lee Tombolini, was injured in a motor vehicle accident on November 3, 1990. He applied for and received statutory accident benefits from Jevco Insurance Company ("Jevco"), payable under Ontario Regulation 672.1 Weekly income benefits were terminated by Jevco on August 5, 1994. The parties were unable to resolve their disputes through mediation and on July 28, 1995 Mr. Tombolini issued a Statement of Claim in the Ontario Court (General Division) against Jevco. On January 17, 1996, he also applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
- Is an arbitration appropriate in these circumstances: which forum should be used to pursue the issues in dispute between the parties?
Mr. Tombolini also claims his expenses incurred in the hearing on the preliminary issue.
Result:
Mr. Tombolini may not proceed to arbitration on the issues in dispute. His Application for Appointment of an Arbitrator received January 17, 1996 is dismissed.
Mr. Tombolini will pay Jevco its costs of this proceeding, fixed at $250.00.
Hearing:
The hearing on the preliminary issue was held by teleconference call on September 10, 1996 before me, K. Julaine Palmer, Arbitrator. Mr. Tombolini was represented by James A. Scarfone, Barrister and Solicitor. Jevco was represented by David José, Barrister and Solicitor. No witnesses testified and no documents were filed as exhibits; however, the Application Record in Ontario Court (General Division) Divisional Court File no. 360/96 was provided to me, by agreement of the parties.
Evidence and Findings:
The Applicant asserts that he prefers to continue this arbitration and would consent to a stay of the court proceeding. He alleges that the issues in dispute are similar, but not identical in the two proceedings. In both the main issue is entitlement to ongoing weekly income benefits, but in the court action, punitive damages and costs, on a solicitor and his own client basis, are claimed. Mr. Tombolini would prefer to present his case before an arbitrator, since it would be heard more expeditiously than the court proceeding. However, his counsel submits that he has not discontinued the court proceeding "because he doesn't believe he's obliged to do so." The Applicant was not familiar with the case law in this area that has developed at the Commission since 1993.
As Arbitrator Sampliner suggested in his decision in AbdulBapoo and Cooperators General Insurance Company, OIC A-006212, October 3, 1994, the day a Statement of Claim was issued in the Ontario Court (General Division) on his behalf, the insured person made his election under section 281(1) of the Insurance Act, R.S.O. 1990, C. I.8, as amended. That section provides:
If mediation fails, the insured person may bring a proceeding in a court of competent jurisdiction or may refer the matter to an arbitrator.
Jevco's counsel wrote to Mr. Tombolini's solicitor in February 1996 requesting that he choose one forum or the other. The reply to that letter, almost two months later, stated: "We are prepared to have this matter dealt with by the Ontario Insurance Commission prior to proceeding with the litigation." Jevco responded that it was not prepared to be exposed to two separate proceedings. Finally, it brought an Application before the Divisional Court in June 1996 to dismiss or stay the action before this Commission. That application has not yet been heard by the Divisional Court. Jevco participated in this hearing on a preliminary issue with the greatest reluctance.
As in the case of Anne-Marie Barrett and Economical Mutual Insurance Company, OIC A-951153, September 21, 1995, a counter-claim has been filed by Jevco in the court action. According to the terms of the Insurance Act, an insurer cannot apply for arbitration. That right belongs only to an insured person. If the insured person commences an arbitration, then withdraws it, in the normal course an insurer must commence an action to recover any monies it alleges are owed to it. Jevco would prefer to continue with the court action, since it was commenced first and the court may deal with the counter-claim which has been advanced, no matter what action the plaintiff takes.
It is trite law that to put any party to the expense of proceeding in two concurrent forums amounts to an abuse of process. A multiplicity of legal proceedings is to be avoided, as far as possible. That principle is enshrined in section 138 of the Courts of Justice Act, R.S.O. 1990, c.C. 43, as amended.
In 1992, Madam Justice E. Macdonald dealt with a case involving similar questions. She stayed the arbitration. Justice Macdonald wrote:
It is fundamental that multiplicity of proceedings is to be avoided, wherever possible.
I am guided by the considerations set out in Victoria Property and Investment Co. (Canada) Ltd. Et al v. Vatznau Management Ltd. Et al. (1978), 1978 CanLII 1286 (ON HCJ), 8 C.P.C. 38, at p. 41:
(1) which action began first;
(2) who has the chief burden of proof;
(3) which is the most comprehensive in scope.
On the basis of the above principle and considerations, I find Mr. Tombolini's arbitration should be dismissed. The court action is well under way. It is more comprehensive in scope than the arbitration. If Mr. Tombolini had wished to avail himself of the more expeditious nature of proceedings before the Commission, he ought to have discontinued his court action when the Insurer first requested it.
Expenses
The case law before the Commission with respect to multiplicity of proceedings is well established.2 I find that this arbitration was begun without proper consideration and was an abuse of process from the outset. Accordingly, I award the Insurer its costs in the requested amount of $250.00, under the provisions of section 282(11.2) of the Insurance Act. No expenses are awarded to the Applicant.
Order:
This Application for Appointment of an Arbitrator is dismissed.
Mr. Tombolini will pay Jevco $250.00 under the provisions of section 282(11.2) of the Insurance Act.
September 24, 1996
K. Julaine Palmer
Arbitrator
Date
Schedule A
Errol C. Barrow and Guardian Insurance Company, December 23, 1993, OIC File No. A-006082;
Abdul Bapoo and Cooperators General Insurance Company, October 3, 1994, OIC File No. A-006212;
John Gouliaeff and Commercial Union Assurance Company, July 24, 1995, OIC File No. A-003996;
Ana Oliveira and Markel Insurance Company of Canada, February 9, 1995, OIC File No. A-006434;
Stamatios Togias and Cooperators General Insurance Company, May 4, 1995, OIC File No. A-013485;
Citadel General Assurance Company v. Gogna, [1992] O.J. No. 1996
International Managed Health Care Inc. And Dich Quang Le v. Toronto Transit Commission, Toronto Small Claims Court, T6260/94, April 19, 1995, Thomson, J. (Summarized at 5059 O.A.B.C. Summaries, 1995 CCH Limited.
Footnotes
- Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
- See case list found at Schedule "A" to this decision