Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 2

Appeal P99-00032

OFFICE OF THE DIRECTOR OF ARBITRATIONS

RAYMOND BUDD

Appellant

and

PERSONAL INSURANCE COMPANY OF CANADA

Respondent

Before:

Stewart McMahon, Director's Delegate

Counsel:

Mr. Stephen R. Moore (for the Appellant)

Ms Rita Bambers (for the Respondent)

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.
The parties will bear their own appeal expenses.

January 8, 2000

Stewart M. McMahon

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

The Appellant, Mr. Raymond Budd, appeals from an arbitration order dated June 21, 1999, in which it was determined that pursuant to section 30(1)(a) of the SABS-96,¹ the Personal Insurance Company of Canada (" the Personal") was not required to pay him further weekly income replacement benefits ("IRBs"), because at the time of the accident, he was knowingly operating a motor vehicle that was uninsured. In addition, Mr. Budd appeals the order that he repay the IRBs he received from the Personal.

II. BACKGROUND AND THE ARBITRATION DECISION

The Budd family is made up of the Appellant, his wife Rose Budd, and their adult daughter. The family often owned two or three cars at a time. The vehicles were insured under a policy issued by the Personal in the name of Rose Budd. Each car had a principal driver listed, but the family members tended to use the cars interchangeably. The vehicle we are concerned with was a 1991 Honda owned by Mrs. Budd.

Early in 1997, Mr. and Mrs. Budd discussed transferring ownership in the Honda to Mr. Budd, who intended to trade it in for a truck he needed for his business. They attended at the Ministry of Transportation where they were advised that they could save the tax payable on transfer, if they swore a declaration that the transfer was between spouses. On March 8, 1997, 11 days before the accident, the couple attended at their bank to swear the declaration.

Mrs. Budd then spoke with Mr. Mike Almas, a representative of the Personal, about the intended transfer of ownership and insurance. She then effected the transfer and called Mr. Almas again. The parties disagree about what transpired during those conversations. What is beyond dispute is that after speaking with Mr. Almas the second time, Mrs. Budd faxed him a note on March 14, that stated; "please remove 1991 Honda and leave everything else the same." In accordance with those instructions, Mr. Almas arranged to have the Honda deleted from the policy. The change was not entered into the company's computer system until March 31, 1997, but the effective date of the deletion was recorded as March 14, 1997.

In the interim, on March 19, Mr. Budd was involved in an accident while he was driving the Honda. Mr. Budd applied for accident benefits before the deletion was entered into the computer system. His application was accepted and the Insurer began to make payments. At some point later, someone in the claims department realized that coverage on the Honda had been deleted. After paying benefits for approximately a year, the Personal advised Mr. Budd that it was taking the position that he knew or ought to have known that he was operating the Honda while it was uninsured, and that in accordance with section 30(1)(a) of the SABS-96, it would no longer be paying weekly benefits, and was seeking repayment of the benefits paid to date.

At the arbitration hearing, Mr. Budd contested the Personal's right to rely upon section 30(1)(a) on a number of bases.

First, Mr. Budd relied upon his wife's evidence concerning the two conversations with Mr. Almas. She testified that she had told Mr. Almas she wanted the coverage deleted on March 31, when the policy was up for renewal, and asked him to arrange for a separate policy to be issued to her husband, effective April 1. She also testified that she sought and received an assurance from Mr. Almas, that notwithstanding the transfer in ownership, the Honda would still be covered under her policy until the end of the month.

Mr. Almas had no recollection of the conversations, but testified that in light of the change in ownership, he would not have agreed to continue the coverage under Mrs. Budd's policy until the end of the month. He also stated, that in no event would he have agreed to issue a policy in Mr. Budd's name without talking to him first.

The arbitrator preferred Mr. Almas' evidence, indicating it was more consistent with the written records. She found that at Mrs. Budd's request, coverage on the Honda had been deleted effective March 14.

Second, Mr. Budd submitted that even if the coverage had been cancelled, he was not aware at the time of the accident of either the transfer in ownership or the deletion of coverage. He testified that at the time, he and his wife were having marital difficulties and that he was residing with his mother. Mrs. Budd admitted that prior to the accident, she had placed the new ownership papers in the car's glove-compartment, but testified that as of the date of the accident she had not yet told her husband that she had effected a change in either the ownership or insurance coverage.

The arbitrator rejected Mr. and Mrs. Budd's evidence, and found that Mr. Budd knew the Honda was uninsured at the time of the accident.

Third, Mr. Budd relied upon the doctrine of estoppel by representation, arguing that because the Personal had paid benefits for a year, when it knew or ought to have known that the coverage had been deleted, it was now estopped from relying upon section 30(1)(a).

The arbitrator concluded that the doctrine did not assist Mr. Budd, because he was unable to demonstrate that he relied upon the representation to his detriment.

III. PROCEDURAL MATTERS

Mr. Budd has been represented by four different solicitors since the inception of this appeal. The second solicitor filed an amended Notice of Appeal, raising new grounds for the appeal. This solicitor then retained counsel to argue the appeal who filed amended submissions that raised more new arguments.

On the first day of oral argument, the Personal argued that the amended Notice of Appeal ought to be rejected, and that I should not consider the most recent submissions. Counsel argued that because these documents had been filed outside of the time prescribed for the filing of a Notice of Appeal, the documents should only be admitted if they met the criteria set out in Sittler and Canadian General Insurance Company, (FSCO No. P-000951, V-000951, P-004495, and V-004495 , August 11, 1995), for extending the time for filing an initial Notice of Appeal. I ruled that because an initial Notice of Appeal had been filed in a timely fashion, the criteria in Sittler were not applicable.

Relying on the long line of cases that have dealt with amendments to pleadings in civil actions, I indicated that the amendments should be allowed unless the Personal could point to some prejudice that could not be compensated for by expenses. The Personal was unable to point to any such prejudice, and accordingly I agreed to hear the new arguments.

Mr. Budd also sought to introduce fresh evidence. However, his counsel had not come prepared to deal with the test for the admission of new evidence. At his request, I adjourned the matter upon payment of the Personal's expenses payable forthwith. I will discuss the nature of this new evidence below.

In the interim between the adjournment and the resumption of the appeal hearing, Mr. Moore became Mr. Budd's new solicitor. Mr. Moore did not seek to formally amend the Notice of Appeal, but he did ask to file an amended factum that included a new issue, and additional fresh evidence beyond what his predecessor had sought to introduce.² The introduction of the fresh evidence and the addition of the new grounds for appeal were argued at the commencement of the resumption. I provided my rulings on the introduction of the fresh evidence, but reserved on the new issue raised by Mr. Moore. My rulings on these preliminary matters follow.³

(i) Should Mr. Budd be permitted to introduce the complete text of the certificate of renewal?

The parties filed a joint exhibit brief at the arbitration hearing. The brief contained copies of a number of renewal certificates. For unexplained reasons, the renewal certificate that was applicable to the time in question, was not included in the brief. This oversight would appear to be immaterial, as the crucial wording is the same in all of the certificates. More to the point, the front sides of the two-page certificates were copied and included in the brief, but the reverse sides were omitted. It would appear that this was not noted until after the release of the arbitrator's reasons.

On the reverse side of page 2, the text of OPCF 23A, the Lienholder Protection endorsement, is reproduced. Mr. Budd notes that the endorsement requires an insurer to give a lienholder 15 days notice prior to cancellation. He submits that because there is no evidence of such notice, the cancellation undertaken at his wife's request was ineffective. He further submits that if this evidence and argument had been before the arbitrator, she would have had no choice but to rule that the coverage on the Honda was in full force and effect at the time of the accident. Accordingly, he argues that her decision that the coverage had been deleted, cannot stand.

Before I consider Mr. Budd's submissions on the effect of the notice requirement, I must decide whether or not the fresh evidence should be admitted. As a general comment, an appeal will proceed on a review of the evidence presented at the arbitration hearing. However, in limited circumstances, the Director or his delegates should consider what impact the fresh evidence has upon the validity of the arbitrator's decision.

The principles that guide the introduction of fresh evidence at the appellate levels of Canadian courts are well established. In Palmer v. The Queen, [1980] l S.C.R. 759, an appeal on a criminal matter, the Supreme Court of Canada, set out the following four criteria:

The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
The evidence must be credible, in the sense that it is reasonably capable of belief;
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and
The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The fourth criteria, which deals with the strength of the fresh evidence, has been worded in various fashions. In civil cases there has been a tendency to impose a higher standard. See for example, Mercer, v. Sijan (1977), 14 O.R. (2d) 13 (C.A.), where the standard was "practically conclusive of an issue."

These criteria were first considered by the Commission in Plows andJevco Insurance Company (OIC P-000175, P-000588, May 22, 1992). Director's Delegate Richardson noted that they were not binding upon the Commission, but she was clearly influenced by them. The Director's delegate made express reference to the underlying rational: the need to balance the benefits of finality, against the desire to resolve the matter on a factually sound basis. These criteria have been routinely referred to in subsequent appeal decisions.

The need to balance the competing goals of finality and correctness means that the four criteria must be weighed together, rather than in isolation. In fact, I note that in the traditional wording of the first criteria, the caution against admitting evidence that could have been produced at first instance, is qualified by the word "generally."

In considering Mr. Budd's request, it is significant that the Appellant is not asking that an entirely new document be introduced. Rather, he is asking that I consider the full text of a document that was already properly in evidence.

In Mercer, the Court of Appeal spoke of the need to avoid the affront to common sense involved in a court shutting its eyes to a fact which falsifies the assessment. In my view, if the arbitrator was potentially mistaken as to the import of the document, because the parties had provided her with an incomplete copy, it would approach an affront to common sense to embark on an appeal with my eyes closed to the balance of the document.

In this case, the evidence offered by Mr. Budd as to why the complete text of the document could not have been provided at the hearing, is weak at best. However, as noted above, the document is found in a joint brief, and accordingly both parties must take some responsibility for the oversight.

The value of the evidence turns on the legal effect of the endorsement. If the Appellant's analysis is correct, it is decisive of a critical issue.

I ruled that the complete text of the document could be entered as evidence,

(ii) Should Mr. Budd be permitted to introduce the salvage documentation?

The second piece of fresh evidence was tendered in support of the estoppel argument.

At the hearing, Mr. Budd had asserted that the Insurer should be estopped from relying on section 30(1)(a), because it had continued to pay benefits after it knew coverage on the Honda had been deleted. On appeal, Mr. Budd sought to introduce a letter which indicates that the Personal was paid the salvage value of the vehicle after the deletion had been noted in the computer system. He seeks to introduce this letter as further evidence that the Personal continued to treat the Honda as an insured vehicle after the deletion was noted in the computer system, and accordingly it should now be estopped from arguing that it was uninsured at the time of the accident.

The estoppel argument had been put in issue at the hearing by Mr. Budd's counsel, who should have been aware of the potential value of evidence concerning the treatment of the salvage. In my view, Mr. Budd failed to adequately explain why this evidence could not have been obtained and presented at the arbitration stage. On appeal, Mr. Budd's present counsel attempted to distinguish between what Mr. Budd knew or appreciated, and what his then counsel knew or appreciated. While I may sympathise with Mr. Budd's reasoning, it is not sound at law. Mr. Budd asserted his case through his counsel. The fact that he personally did not appreciate the potential significance of the salvage documentation until after the release of the arbitrator's reasons, is no answer to the argument that this counsel could have sought out and then put into evidence the salvage documentation.

More importantly, I am not satisfied that the introduction of the salvage documentation would have changed the result. The strongest evidence in support of the estoppel argument was the payment of income replacement benefits. This evidence was before the arbitrator. The estoppel argument did not fail due to a paucity of evidence concerning the Personal's conduct, but because the arbitrator was not satisfied that Mr. Budd had acted to his detriment.

The request to introduce the salvage documentation was denied.

(iii) Should Mr. Budd be permitted to argue the waiver issue?

Finally, I turn to Mr. Budd's request that I overturn the arbitrator's ruling on the grounds the Personal waived its right to rely upon section 30(1)(a) because it continued to pay IRBs at a time when it knew coverage on the Honda had been deleted. From Mr. Budd's perspective, the waiver argument is more attractive that the estoppel argument, because unlike estoppel, there is no need to demonstrate detrimental reliance.

The previous amendments to the grounds of appeal all dealt with issues that were considered at arbitration. However, the issue of a waiver was not raised at arbitration.

In Sopinka and Gelowitz, The Conduct of an Appeal, Second Edition (Toronto: Butterworths, 2000), the authors note at page 63 that there is a general rule "that an appellant may not raise a point that was not pleaded, or was not argued in the trial court, unless all relevant evidence is on the record." At page 64, the authors cite the British Columbia Court of Appeal decision in BlockBros. Realty Ltd. v. Boese (1988), 1988 CanLII 3011 (BC CA), 24 B.C.L.R. (2d) 178, as support for the proposition that an appellant seeking to raise such an issue, must prove beyond a reasonable doubt that all of the facts relevant to the new argument are before the appellate court.

Mr. Budd noted that there are no formal pleadings in the arbitration process. In addition, he argued that the question of waiver is not truly a new issue. He suggests that the issue at the arbitration was whether or not Mr. Budd knew or ought to have known that he was operating a motor vehicle while it was uninsured. He submitted that the waiver argument was simply a challenge to the Insurer's right to raise this defence.

It is true that the Commission's processes do not include formal pleadings, but the mediation process, the Application for Arbitration and the Response, and the pre-hearing discussions, are all designed to give each party a general sense of the case it must meet. There is no suggestion that a waiver argument was raised at any of the pre-hearing stages. If the waiver issue had been raised at any stage of the arbitration process, even in closing submissions, the Personal could have attempted to challenge Mr. Budd's position by seeking to put evidence before the arbitrator. By not raising it until the Appeal stages, the Personal is denied this opportunity.

Mr. Budd contends that the Personal could not possibly have elicited any further critical evidence, and accordingly, there is no prejudice to the Insurer if the issue is dealt with for the first time on appeal. To determine if this is so, it is necessary to briefly examine the doctrine.

Both parties referred to an excerpt from Justice Sopinka's decision in Marchischuk v. Dominion Industrial Supplies Ltd. (1991), 1991 CanLII 59 (SCC), 3 C.C.L.I.(2d) 173 in which he quotes with approval from Kennedy J's trial decision:

The...issue of waiver comes into effect when a party knowingly acts in a manner where he waives or foregoes reliance upon some known right or defect. It is important that the right or defect, as the case may be, be known, since one should not be able to waive rights of which he was not fully aware or apprised.

In addition to the requirement for knowledge, it is also essential that the conduct purporting to be a waiver, be express and unequivocal, see Northern Life Assurance Co. Of Canada v. Reison, 1976 CanLII 156 (SCC), [1977] 1 S.C.R.. 390 at 398.

In Saskatchewan River Bungalows Ltd. et al. v. Maritime Life Assurance Co. (1994), 1994 CanLII 100 (SCC), 115 D.L.R. (4th) 478 (S.C.C.), Justice Major noted that what must be ascertained is a conscious intention to abandon a known right. He justified such a stringent test by reference to the fact that there is no consideration from the party in whose favour a waiver operates.

An insurer can rely upon section 30(1)(a) of the SABS-96 if it can establish two things. One, the vehicle was uninsured, and two, the operator of the vehicle knew, or ought to have known that it was uninsured. Accordingly, to establish a waiver in this case, Mr. Budd would need to establish three things. One, when the Personal made the payments, it knew the coverage had been deleted. Two, the Personal had reason to believe that Mr. Budd knew, or ought to have known the coverage had been deleted. Three, in making the payments, the Personal consciously intended to waive its right to deny benefits based upon the fact that Mr. Budd was knowingly operating an uninsured vehicle.

Mr. Budd notes that the arbitration brief contains a letter dated October 9, 1997, that explains why the deletion of coverage on the Honda did not show up in the computer records at the time Mr. Budd applied for benefits. Mr. Budd argues that it is apparent from this letter that the claims department was aware as early as October 1997, while it was still paying benefits, that the coverage had been deleted.

The memo demonstrates that the claims department was aware of the deletion. However, the memo does not speak to what, if any, conclusions the company had reached about Mr. Budd's knowledge of the deletion. It is not at all clear to me that if the question of waiver had been raised, that the Insurer could not have called evidence on this latter question. Nor does the memo establish that the insurer intended to abandon its right to rely upon the deletion. If this matter had been raised, the Personal might have been in a position to call the author of the memo to explain what if any decisions had been made about its intentions in regards to denying benefit based upon section 30(1)(a). The appellant has not satisfied me that all of the critical facts were put into evidence at the arbitration stage. Accordingly, the Appellant is not permitted to raise the issue at this stage.

I turn now to the substantive issues raised on the appeal.

IV. CHALLENGES TO THE ARBITRATOR'S FINDINGS AND CONCLUSIONS

(i) Did the arbitrator err in finding that Mrs. Budd had requested coverage on the Honda be deleted effective March 14, 2000?

Section 283(1) of the Insurance Act restricts appeals to questions of law. Accordingly, Mr. Budd can only succeed if he demonstrates that the arbitrator's treatment of the evidence was so deficient that she committed an error of law. Mr. Budd argues that the arbitrator erred in law by failing to consider relevant evidence, drawing unwarranted inferences, and making findings in the absence of evidence.

The arbitrator considered the testimony given by both Mrs. Budd and Mr. Almas. In addition, she reviewed the letter instructing the Personal to delete coverage on the Honda. In my view, she properly weighed Mrs. Budd's assertion against the fact that there is no mention in the letter that the deletion should be delayed until March 31, 1997.

In rejecting Mrs. Budd's assertion that the wording of the letter was dictated to her by Mr. Almas, (and hence he was responsible for the absence of any reference to March 31 as the effective date for the deletion), the arbitrator quite correctly considered the fact that Mrs. Budd had written similar letters in the past without any assistance.

When considering the submission that it was logical to presume Mrs. Budd would have wanted the deletion to take effect at the end of the term, the arbitrator correctly looked at Mrs. Budd's history of deleting vehicles, including instances in which she deleted coverage within days of the expiry of the term.

The arbitrator also weighed a number of internal inconsistencies in Mrs. Budd's testimony.

The arbitrator also considered the possibility that Mr. Almas had failed to record Mrs. Budd's verbal request that the deletion be effective on March 31, and mistakenly provided instructions to update the computer system to show the deletion as effective March 14. However, she concluded that for the Budds' version of events to be correct, Mr. Almas would have had to have compounded these errors by a remarkable series of additional errors, that she considered to be unlikely.

I am satisfied that the arbitrator carefully considered the relevant evidence, and that the inferences she drew were available to her.

I have also considered the salvage documentation as potential evidence that the Personal had agreed to extend coverage until the end of the month, however, I am not satisfied that when considered in the face of all of the other evidence it would have changed the result.

It remains to consider the effect of the Lienholder endorsement..

The wording of the endorsement is central to the analysis. I set it out in full.

Purpose of This Change

This change is part of your policy. It protects the lienholder's interest in your automobile if you have a claim for a loss covered under Section 7 of your policy, "Loss or Damage Coverages (Optional)."

Joint Payment

If we are settling a claim with you and your automobile is not repaired or the lost or damaged parts are not replaced, we will jointly pay you and the lienholder for any loss covered under Section 7 of your policy, "Loss or Damage Coverages (Optional)."

Notifying the Lienholder

If any coverage in a subsection of Section 7 of your policy is cancelled, we must notify the lienholder in writing at least fifteen days before the cancellations. However, this obligation ends on the expiry date shown on this form. All other terms and conditions of your policy remain the same.

As mentioned above, Mr. Budd relies upon the requirement that the insurer give any lienholders 15 days notice in advance of cancellation. In this case, there is no evidence that the Personal provided such notice. Mr. Budd argues that absent notice, the deletion is ineffective and the policy continued in full force and effect. Therefore, he contends, the Personal must respond to all claims regardless of their nature, and regardless of who is asserting them.

Mr. Budd relies upon Jackson v. Dennis, 1998 CanLII 31604 (ON CTPD), [1998] O.J. No. 288. Mr. Dennis leased the insured vehicle from Leggat Leasing. As part of the lease agreement, Leggat retained a lien on the vehicle, and was to be shown as a named insured on the policy of insurance. The policy of insurance contained a lienholder endorsement identical to the one in this case. Some months later Mr. Denis planned to put the car in storage, and asked the insurer to delete the third party liability, accident benefits, and collision coverages, but to leave the comprehensive coverage in place. The insurer complied with this request, without first notifying Leggat. Mr. Dennis subsequently took the car out of storage without restoring full coverage, and while driving it was involved in an accident that gave rise to multiple claims, including accident benefit claims. The court was asked to consider whether the insurer was responsible for responding to any of these claims.

The court examined the insurer's obligation to notify Leggat. It found that by virtue of the lienholder endorsement, the insurer was obliged to give notice of the deletion of the collision coverage. It then noted that the insurer was aware that Leggat's interest was more than that of a mere lienholder, and that it retained an ownership interest in the vehicle and as such would be personally exposed to claims if the third party liability and accident benefit coverages were deleted. Finally the court noted that as a named insured, statutory condition 8(a) [now 11(1)] obliged the insurer to give Leggat 15 days notice of any cancellation.

The court found that the combined effect of the lack of notice, the lienholder endorsement, and the statutory provisions, meant that the policy remained in effect and Liberty was obliged to respond to all the claims. Because the court spoke of the "combined effect", it is not clear if it was suggesting that a breach of the lienholder endorsement had any effect beyond Leggat's claim pursuant to the property damage coverage. I find it significant that in the portion of the decision that specifically refers to the lienholder endorsement, only the collision coverage is referred to.

The court in Jackson v. Dennis relied upon the Supreme Court's decision in London and Midland General Insurance Co. v. Bosner Estate, 1972 CanLII 18 (SCC), [1973] S.C.R. 10, (S.C.C.) which considered a notice requirement in a standard mortgage endorsement. The policy had been cancelled without notice to the mortgagee. After the building was destroyed by fire, the mortgagee sought payment of the mortgage pursuant to the endorsement. The insurer resisted on the basis that the policy had been cancelled effectively at the behest of the insured person.

The court quoted with approval the following passage from the Court of Appeal's decision: "It was not open to the insurer...to give effect to [the] notice of termination by cancelling the policy to the prejudice of the plaintiff mortgagee..." The court was concerned solely with a claim asserted by the mortgagee to whom notice was owed. The mortgage clause contained a proviso that it only protected the interests of the mortgagee, and the Court consistently spoke of the insurer's obligations to the mortgagee, not to the world at large. I do not read this judgement as support for the contention that breach of notice to a mortgagee exposes the insurer to claims by all comers.

One of the tenets of the modern rule of statutory interpretation is that the proposed meaning should be consistent with the legislative intent. See Dreidger on the Construction of Statutes, Third Edition, Ruth Sullivan (Toronto, Butterworths, 1994) at page 131. The form of the policy and its endorsement are approved by the Financial Services Commission and are contained in a Regulation. Although interpreting the endorsement is not purely a matter of legislative interpretation, it strikes me that the effect to be given to endorsement should mirror as closely as possible its stated purpose. More specifically, where possible, the operation of the endorsement should not extend privileges, or expose the insurer to claims beyond those necessary to fulfill the endorsement's purposes.

The stated purpose of the endorsement is to protect the lienholder's interest, and in particular to protect its financial interest in the event that the car is damaged. This purpose suggests two natural limitation. If possible, the provisions should be read in such a way as to extend privileges to the lienholder, but not to others, and any such privileges should be limited to property damage claims.

The concluding words of the endorsement are that "all other terms and conditions of your policy remain the same." Statutory condition 11(2) states that the contract may be terminated by the insured at any time, without any mention of a notice requirement. In this case, the arbitrator found that the insured had requested such a termination, and effect should be given to these instructions to the fullest extent possible.

To my mind, if the notice obligation to the lienholder is breached, the proper question is not to ask whether the policy remains in effect for all purposes, but rather to ask if the cancellation, which is effective in all other respects, is effective as against a property damage claim asserted by the lienholder. The answer is that the cancellation is no defence to such a claim. This consequence is consistent with the privileges granted to the lienholder, but does not expose the insurer to additional claims that are beyond those it has agreed to protect by the terms of the endorsement.

I conclude that the absence of notice to the lienholder does not preserve Mr. Budd's right to assert a claim for accident benefits.

I see no reason to disturb the arbitrator's ruling that coverage on the Honda had been deleted as of the date of the accident.

(ii) Did the arbitrator err in finding that Mr. Budd knew that coverage on the Honda had been deleted?

Mr. Budd argues that there was no evidentiary basis for the arbitrator's finding that Mrs. Budd told her husband she had effected the transfer, and deleted coverage on the vehicle. Mr. Budd relies heavily upon the fact that he was living at his mother's residence at the time, and the brief interval between the deletion of the coverage and the date of the accident. The arbitrator noted that notwithstanding they were living apart during this period, the transfer of the ownership was a joint plan that both had participated in. She referred to the fact that they attended together at the Ministry of Transport office and then the bank. She also noted that after effecting the transfer Mrs. Budd put the new ownership papers in the car's glove-compartment. She commented on the fact that it would have been "strange" if having fulfilled her part in the joint plan, she then failed to advise her husband that the arrangements had been completed. In my view, the arbitrator was entitled to infer that Mrs. Budd would have told her husband once she had completed the transfer and deleted the coverage. I see no basis for interfering with her findings of fact on this issue.

(iii) Did the arbitrator err in failing to apply the doctrine of estoppel?

Mr. Budd contends that the arbitrator erred in failing to find that he relied to his detriment on the continued payment of IRBs. Mr. Budd admitted that the doctrine of estoppel would not assist him in his claim for further benefits, but maintained that it should apply so as to prevent the Personal from recouping the benefits it had already paid.

The arbitrator noted that Mr. Budd failed to adduce any evidence that he relied on the payments to his detriment. On appeal, Mr. Budd argues that given he was not working, it follows that the IRBs were his only source of income. He suggest that the arbitrator should have taken judicial notice of the fact that he would have spent the benefits, and would not be in a position to repay them, and that it would be demeaning to expect Mr. Budd to testify about this matter. This is an appealing argument at a superficial level, but if fails to account for the wide variety of human circumstances. In my view, the arbitrator was correct in ruling that Mr. Budd had an obligation to present positive evidence of detrimental reliance.

V. CONCLUSION

For all of the reasons set out above the appeal is dismissed.

VI. EXPENSES

The appeal was largely an attack on the arbitrator's findings of fact. The only true legal issues related to matters that arose on appeal because Mr. Budd failed to deal with them adequately at first instance. I see no reason to award Mr. Budd his expenses. However, the arguments raised on appeal were not without merit. In the circumstances, neither party is awarded expenses.