Sushil Dhir v. Non-Marine Underwriters, Mbrs. of Lloyd's, 1999 ONFSCDRS 186

Neutral Citation: 1999 ONFSCDRS 186

FSCO A98-001394

BETWEEN:

SUSHIL DHIR

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Eban Bayefsky

Heard:

May 4, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Submissions were completed July 23, 1999.

Appearances:

Mr. Dhir, representing himself

Rita Bambers for Non-Marine Underwriters, Mbrs. of Lloyd's

The Applicant, Sushil Dhir, was injured in a motor vehicle accident on May 22, 1996. He applied for, but was refused, statutory accident benefits from Non-Marine Underwriters, Mbrs. of Lloyd's ("Lloyd's"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Dhir applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing in this matter, held May 4, 1999, the Insurer requested that this case be combined with another arbitration between itself and Mr. Dhir, Commission File A98-001070, currently scheduled to be heard from November 15-18, 1999. Mr. Dhir was not represented at the pre-hearing. He indicated that he would retain counsel for the arbitration, but ultimately advised on July 23, 1999 that he had not retained counsel and would be proceeding on his own. He also confirmed his earlier position that he objected to the consolidation of the two matters.

The preliminary issue is:

Should Mr. Dhir's two arbitrations, Commission Files A98-001394 and A98-001070, be combined and heard together at the hearing scheduled to commence on November 15, 1999?

Mr. Dhir's arbitrations should not be combined.
The parties shall within two weeks of the date of this decision advise the Commission of mutually acceptable dates for the commencement of Mr. Dhir's arbitration, Commission File A98-001394.

The present case arises from a 1996 motor vehicle accident in which Mr. Dhir was involved and concerns his entitlement to income replacement and loss of earning capacity benefits, the quantum of income replacement benefits, supplementary medical expenses (namely, psychiatric/pain treatment and physiotherapy), potential housekeeping expenses and a repayment of benefits to the Insurer. The November 1999 hearing pertains to a January 22, 1994 motor vehicle accident in which Mr. Dhir was involved and will address his entitlement to supplementary medical benefits (namely, dental services, chiropractic, psychological treatment, transportation, the assistance of a spiritual healer and airfare for a trip to India) as well as benefits for social rehabilitation. The Insurer has requested that the issues in both matters be combined in one hearing to be held in November 1999. Mr. Dhir and the Insurer are the only parties in both proceedings.

The Insurer submits that the two matters involve common issues and witnesses, and that combining the proceedings will result in the quickest and least expensive resolution of the dispute. In particular, the Insurer submits that combining the two cases will avoid the possibility of inconsistent factual and legal results. The Insurer relies on Rule 30 of the Dispute Resolution Practice Code (the"Practice Code") concerning "combining applications" and argues that I have the jurisdiction to combine the proceedings without Mr. Dhir's consent pursuant to section 9.1(4) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the "SPPA") and section 21 of the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

Mr. Dhir objects to consolidating the two proceedings on the basis that the Insurer is simply using this as an excuse for not paying him benefits. He submits that the Insurer is "playing games" with him and that the Insurer has continually attempted to attribute his current injuries to other accidents.

The Insurer's request raises two issues. The first is whether I have the jurisdiction to combine the two proceedings without Mr. Dhir's consent. Assuming I have this jurisdiction, the second issue is whether this is an appropriate case in which to combine the two proceedings.

Jurisdiction to Combine the Applications:

Rule 30 of the Practice Code allows an arbitrator to combine applications where "they have an issue or question of law, fact, or policy in common" or where "the application of this Rule will result in the quickest, most just, and least expensive means to deal with the Applications..."

Rule 30 requires a party to provide written notice of any objection to the application of the Rule. An arbitrator is then given the authority to "make any order...on such terms as he or she considers just." On its face, this would permit applications to be combined without the consent of the parties.

As stated in Rule 1.4, Rules under the Practice Code are made by the Director pursuant to her authority under section 21 of the Insurance Act and section 25.1 of the SPPA. Section 21 of the Act states, in part, that "the Director may make rules for the practice and procedure to be observed for a proceeding before him or her or before an arbitrator." Section 25.1 of the SPPA states, in part, that "a tribunal may make rules governing the practice and procedure before it...[and that] the rules shall be consistent with [the SPPA] and any other Acts to which they relate...." These provisions give the Commission broad rule-making authority.

However, section 9.1 of the SPPA specifically addresses the authority of tribunals to combine proceedings. It states, in part, that where "two or more proceedings...involve the same or similar questions of fact, law or policy, the tribunal may...combine the proceedings or any part of them, with the consent of the parties...." Section 9.1(4) of the SPPA states that "the consent requirements of clauses (1)(a) and (b) do not apply if another Act or a regulation that applies to the proceedings allows the tribunal to combine them or hear them at the same time without the consent of the parties." The question is whether, by virtue of section 21 of the Insurance Act, and within the meaning of section 9.1(4) of the SPPA, the Insurance Act "allows" the Commission to combine proceedings without the consent of the parties. For the following reasons, I find that it does not.²

While the Commission has broad rule-making authority with respect to the practices and procedures before arbitrators, section 9.1 of the SPPA specifically addresses the issue of combining proceedings. It contains specific conditions under which proceedings may be combined, including the general requirement that parties provide their consent, as well as the circumstances under which the parties' consent is not required. In my view, given the specificity of section 9.1, a general rule-making power (such as that under section 21 of the Insurance Act) is not sufficient to satisfy the requirement under section 9.1(4) that another statute must allow for proceedings to be combined without the parties' consent. Further, section 9.1(4) only permits proceedings to be combined without the parties' consent if such is authorized by an "Act or regulation," not by rules made under a general rule-making provision. Rules under the Practice Code also do not have the status of regulations such that they would allow for cases to be combined without consent. Therefore, in my view, neither section 21 of the Insurance Act nor Rule 30 of the Practice Code is sufficient to satisfy section 9.1(4)'s requirement that an Act or regulation must allow for proceedings to be combined without the parties' consent.

Both section 25.1 of the SPPA and section 21 of the Insurance Act are general rule-making provisions. Various provisions under the SPPA permit tribunals to implement certain procedures provided they adopt rules that deal with those matters, pursuant to section 25.1. For example, under section 5.3, a tribunal can conduct pre-hearing conferences if it adopts rules that deal with such proceedings. However, section 9.1, which addresses the procedures that can be implemented in relation to proceedings involving similar questions, specifically sets out what can and cannot be done and under what circumstances. It does not grant tribunals the discretion to develop special rules for cases involving similar questions. In my view, section 9.1(4)'s reference to "another Act or a regulation" must refer to something more than a general rule-making provision. Otherwise, section 9.1(4) would simply need to say that cases could be combined without the parties' consent pursuant to a tribunal's rules (made either under the tribunal's enabling statute or under section 25.1 of the SPPA). Therefore, since section 9.1(4) refers to an "Act or regulation" and not to a tribunal's rules, I find that section 9.1(4) requires more than rules made under a general rule-making provision to allow proceedings to be combined without a party's consent.

Rule 1.4 of the Practice Code states that its rules are made pursuant to section 25.1 of the SPPA. However, as indicated, section 9.1(4) does not grant tribunals the discretion to develop special and potentially different rules for proceedings that involve similar questions. In my view, the Practice Code rules are different from the SPPA provisions on combining proceedings since, for example, the Practice Code permits an arbitrator to make any order "on such terms as he or she considers just," whereas the SPPA identifies only certain orders a tribunal can make in cases involving similar questions. Therefore, despite the statement in the Practice Code that its rules are made pursuant to section 25.1 of the SPPA, I find that the Insurance Act would have to more specifically provide for the combining of cases in order for Rule 30 of the Practice Code to supplant or to modify the strict terms of section 9.1 of the SPPA.

Section 25.1(3) of the SPPA states that a tribunal's procedural rules must be consistent with the SPPA. Section 32 states that, unless expressly provided otherwise in another Act, the SPPA prevails over conflicting provisions or rules under that Act. The Insurance Act does not contain a provision specifically exempting its terms from the purview of the SPPA. In my view, sections 25.1(3) and 32 suggest that the more specific provisions of the SPPA regarding combining hearings would prevail over any conflicting rules adopted pursuant to the Director's general rule-making authority. Again, therefore, in order to conform to the detailed provisions of the SPPA, the Insurance Act would have to more specifically provide for proceedings to be combined without a party's consent.

Pursuant to section 23(1) of the SPPA, a tribunal has the authority to "make such orders...as it considers proper to prevent abuse of its processes." A similar provision is found in Rule 63.5 of the Practice Code. Section 282(11.2) allows an arbitrator to order an applicant to pay an amount to the insurer where he or she has commenced an arbitration that is frivolous, vexatious or an abuse of process. While it is conceivable that under certain circumstances this might permit an arbitrator to combine cases without a party's consent (or, at least, to make "punitive" orders against an applicant), I find that these provisions do not apply to the case at hand. While I find no support for Mr. Dhir's claim that the Insurer is attempting to subvert his application or to avoid its legal obligations under the Schedule, I also find nothing to suggest that Mr. Dhir's objection to the consolidation of his two applications amounts to an abuse of the Commission's process. Therefore, even assuming I could combine Mr. Dhir's cases without his consent on the basis of an abuse of process, I find that he has not committed such an abuse.

I also find that any inherent or common law power arbitrators have to control their own processes is not sufficient to oust the specific provisions of the SPPA concerning combining hearings. I note, in this regard, the following comments of Margot Priest in Amendments to the Statutory Powers Procedure Act (Ontario): Analysis and Comment in P. Anisman and R.F. Reid, eds., Administrative Law: Issues and Practice.³

"Some commentators take the view that these provisions are necessary to authorize joinder, but I believe that where the parties have consented, this explicit authority is not necessary, but is available as part of a tribunal's inherent ability to control its own process. In fact, tribunals that are authorized to commence proceedings on their own initiative may have the power to require joinder of parties or proceedings even without consent. Fortunately, the amendments also include a provision that if the Act under which the proceeding arises allows the tribunal to combine proceedings or hear them at the same time without consent, then no consent is required. It is less clear whether the power to initiate proceedings in the enabling Act would overcome the requirement for consent for joinder if there are not explicit provisions empowering the tribunal to order joinder without consent."

Arbitrators under the Insurance Act are, of course, not authorized to commence proceedings on their own initiative. There are also no provisions in the Act itself allowing applications to be combined without the parties' consent. Therefore, on Ms. Priest's reasoning, despite an inherent authority to control their own process, arbitrators would likely require the consent of the parties to combine proceedings.

Even assuming arbitrators could potentially proceed without the parties' consent, the legislature has, in my view, instituted a specific and comprehensive procedural scheme or code for the combining of proceedings, this being sufficient to oust any common law power arbitrators might otherwise have to control the arbitration process. I note the general principle of statutory interpretation that, in respect of both substantive and procedural law, "once the legislature indicates expressly or by implication that it has dealt with a matter fully to its own satisfaction, it is impermissible to vary or add to the legislation by resorting to the common law" (see, Sullivan, Driedger on the Construction of Statutes, Third Edition, (Toronto: Butterworths, 1994), at p. 298). I find that my general authority to control the arbitration process cannot replace or modify the SPPA’s clear provisions regarding combining proceedings. I, therefore, conclude that despite Section 21 of the Insurance Act, Rule 30 of the Practice Code and my general common law authority, I do not have the jurisdiction to combine Mr. Dhir’s arbitrations without his consent.

Appropriateness of Combining the Applications:

If I had had the authority to combine these proceedings over Mr. Dhir’s objection, I would have done so. While the cases arise from different accidents and, to a certain extent, involve different issues, they are legally and factually quite similar. Combining the two cases would also likely limit the time and expense involved, and would reduce the possibility of inconsistent results. As indicated, I find no basis for Mr. Dhir’s assertion that the Insurer is attempting to avoid its obligations under the Schedule by seeking to combine the two proceedings. Therefore, as a practical matter, I would have favoured combining the arbitrations.

In this context, I find it advisable that the same arbitrator be assigned to hear both cases and that, to the extent possible, the evidence from one hearing be used in the second, assuming that both cases proceed to arbitration. This would assist in alleviating some of the difficulties that might arise from conducting the hearings separately.

The parties shall within two weeks of the date of this decision provide mutually acceptable dates for the commencement of Mr. Dhir's second arbitration, FSCO File A98-001394.

September 28, 1999

Eban Bayefsky Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 186

FSCO A98–001394

FINANCIAL SERVICES COMMISSION OF ONTARIO