Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 1999 ONFSCDRS 1

Appeal P97-00005

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ZURICH INSURANCE COMPANY

Appellant

and

SYLVIA COATES-BOYCE

Respondent

Before:

Susan Naylor, Director's Delegate

Counsel:

David F. Smye (for Sylvia Coates-Boyce)

William J. McCorriston (for Zurich Insurance Company)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitration order dated January 13, 1997 is confirmed.
Ms. Coates-Boyce is entitled to her appeal expenses fixed at $200.

January 4, 1999

Susan Naylor

Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Zurich Insurance Company ("Zurich") appeals an arbitrator's order dated January 13, 1997. Sylvia Coates-Boyce responds that the appeal is moot.

II. BACKGROUND

Ms. Coates-Boyce applied for arbitration with respect to the amount of her weekly income benefits. The issue was whether she was limited to the minimum benefit of $185.60, or qualified for a higher amount based on an offer of employment as provided in s. 12(2) 1. iii and s. 12(7) 2. i of the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 1990, Reg. 672, as amended. Zurich took the position that the application was time-barred under s. 281(5) of the Insurance Act, R.S.O. 1990, c. I-8, as amended, and that, in any event, it had determined her benefit correctly.

The arbitrator dealt with both issues. She held, on the preliminary issue, that the application was not out-of-time, but ruled in favour of Zurich on the substantive issue of whether Ms. Coates-Boyce qualified for benefits above the minimum rate. The arbitrator therefore dismissed Ms. Coates-Boyce' claim for additional benefits. However, she exercised her discretion to award Ms. Coates-Boyce her arbitration expenses in accordance with the Commission's usual principles.

Zurich appealed the arbitrator's disposition of the preliminary question of whether Ms. Coates-Boyce's application was time-barred. It responds to the mootness argument by citing the importance of the underlying issue to insurers and insureds generally, and of the need for certainty.

Zurich also appealed the expenses award, taking the position that the order should be reversed if its appeal of the preliminary issue succeeds.

After filing a formal Response to Appeal, Ms. Coates-Boyce brought a motion to dismiss Zurich's appeal. I heard the motion by telephone conference call. At that time, Zurich asked for an opportunity to make supplementary written submissions. Ms. Coates-Boyce filed brief written submissions, but Zurich did not file further submissions.

II. CONCLUSION

I agree with Ms. Coates-Boyce that the appeal should be dismissed. It does not raise a concrete dispute between the parties. Ms. Coates-Boyce has no stake in the outcome of the appeal because the arbitrator dismissed her claim on the merits. Moreover, there is no real issue left in respect to expenses. Although Zurich has appealed the expenses order, its appeal in this regard rests solely on a reversal of the arbitrator's preliminary order. Since the arbitrator awarded expenses to Ms. Coates-Boyce in line with the Commission's usual policy of awarding expenses in legitimate, albeit unsuccessful, cases, there is no reason to think that the expenses order would be reversed, even if Zurich succeeded in its main ground of appeal.

The doctrine of mootness was discussed by Sopinka J. in Borowski v. Canada (Attorney-General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (S.C.C.) at p. 353. As a general rule, a court will not hear a case if its decision will have no practical effect on the rights of the parties, although there is a discretion to depart from this usual practise. The considerations underlying the doctrine, which also govern the exercise of the discretion to hear such cases, are three-fold: the view that a court's competence to resolve legal disputes is rooted in the adversarial system; the concern for judicial economy of limited resources; and the concern that courts not intrude into the function of the legislative branch.

These policy reasons are as sound in the case of Commission proceedings and apply in this case. Ms. Coates-Boyce cannot reasonably be expected to put her best efforts into participating in an appeal that does not affect her, nor should she have to fund a defence in such circumstances.

Also, the Commission's limited resources may be more effectively deployed, dealing with live disputes. Finally, the parameters of the adjudicative function must be recognised. The applicability of the mootness doctrine is reflected in the statutory provisions establishing the dispute resolution process, which provide for mediation and arbitration of issues in dispute.

Zurich's appeal is therefore dismissed. Ms. Coates-Boyce is entitled to her appeal expenses fixed at $200.