Financial Services Commission of Ontario
Neutral Citation: 2001 ONFSCDRS 188 Appeal: P00-00067
Office of the Director of Arbitrations Superintendent of Financial Services, Appellant and Belende Ndem, Insured and General Accident Assurance Co. of Canada, Insurer
Before: David R. Draper, Director of Arbitrations
Counsel: Leslie McIntosh and Elaine Atkinson (for the Superintendent) Louise A. Hurteau (for the Association des juristes d’expression francaise de l’Ontario) Mr. Ndem and General Accident did not participate
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The appeal is withdrawn without conditions or expenses.
December 14, 2001
David R. Draper Director of Arbitrations
REASONS FOR DECISION
I. NATURE OF THE APPEAL
The Superintendent of Financial Services appealed from arbitration orders dated September 21, 2000 and April 2, 2001, claiming the arbitrator erred in law in concluding that the French Language Services Act, R.S.O. 1990, c.F.32, applies to the Minister’s Committee on Designated Assessment Centres (Minister’s Committee) and the Designated Assessment Centres (DACs). However, due to the settlement of all issues between Mr. Ndem and General Accident Assurance Co. of Canada (General Accident), the Superintendent now asks to withdraw the appeal.
II. ANALYSIS
This case stems from a dispute between Mr. Ndem and General Accident concerning Mr. Ndem’s entitlement to accident benefits. At arbitration, General Accident argued that Mr. Ndem could not proceed because he had failed to attend an insurer examination (IE) and a DAC assessment.
In the arbitrator’s first decision, dated May 9, 2000, he held that Mr. Ndem was not entitled to insist that an IE under s.42 of the SABS-19961 be conducted by a French-speaking assessor. As a result, he found that Mr. Ndem had not made himself reasonably available and, according to s.50 of the SABS- 1996, was not entitled to proceed with the arbitration until he made himself available.
With respect to the DAC assessment, the arbitrator held that the Minister’s Committee and the Superintendent of Financial Services were “parties in the controversy” and, therefore, should be given an opportunity to present evidence and make submissions on whether, as a French-speaking person, Mr. Ndem was entitled to a DAC assessment by someone who was also French-speaking.
The next stage of the arbitration hearing was done in writing. The Superintendent participated by filing submissions that the Minister’s Committee and the DACs are not government agencies within the meaning of the French Language Services Act and, therefore, are not required to provide services in French. Mr. Ndem took the opposite view, while General Accident and the Minister’s Committee did not provide submissions.
On September 21, 2000, the arbitrator issued his second preliminary decision. He held that:
the Minister’s Committee and the DACs are “government agencies” under the French Language Services Act;
DAC assessments and the related functions of the Minister’s Committee are “services” under the French Language Services Act; and
the French Language Services Act requires the Minister’s Committee and the DACs to ensure that French-speaking persons wishing to be evaluated in French are assessed by French-speaking assessors, without the assistance of interpreters.
This did not end the matter because the French Language Services Act includes exemptions from the obligation of government agencies to provide services in French. Therefore, the arbitrator invited the Minister’s Committee and the Superintendent to make written submissions on the following two questions:
Is the onus on the government to prove circumstances preventing the implementation of the French Language Services Act?
Are regional circumstances to be considered?
Neither the Minister’s Committee nor the Superintendent made submissions. Instead, the Superintendent asked for leave to appeal the arbitrator’s conclusion that the French Language Services Act applies to the Minister’s Committee and the DACs. On December 13, 2000, I denied leave on the basis that the appeal was premature. It was my view that the arbitrator should be allowed to complete his determination before any appeal went ahead.
The Superintendent did not file any submissions on the exemptions under the French Language Services Act. Nor did any of the other participants, although given an opportunity to do so. As a result, the arbitrator dealt with the two questions set out above without the benefit of any further input. In a third preliminary decision, dated April 2, 2001, he held that the Minister’s Committee had the onus of proving that the DAC’s failure to provide French language services was a permissible limitation under the French Language Services Act. In the absence of any evidence or submissions, the arbitrator held that the onus was not met.
As a result, the arbitrator ordered that Mr. Ndem was not prevented from proceeding to arbitration due to his non-attendance at the DAC. However, he had already held that Mr. Ndem’s failure to attend the IE prevented him from proceeding until he made himself available. To deal with this, the arbitrator included the following paragraph in his order:
- in accordance with the decision of May 9, 2000, Mr. Ndem is not entitled to be examined on behalf of the Insurer by French-speaking persons; he, therefore, failed to make himself reasonably available for Insurer’s examinations under section 42 of the Schedule and, by virtue of section 50 of the Schedule, is not entitled to proceed to arbitration until he makes himself so available; no date will, therefore, be set for a resumption of the proceeding unless, within 30 days of this decision, Mr. Ndem informs me in writing that he will make himself reasonably available for such examination(s).
Following the release of this decision, the Superintendent filed a Notice of Appeal challenging the arbitrator’s second and third preliminary orders, dated September 21, 2000 and April 2, 2001. I acknowledged the appeal under Rule 47.3 of the Dispute Resolution Practice Code (Third Edition), but neither Mr. Ndem nor General Accident chose to respond. The consequence, as they were advised, was that they were not entitled to participate in the appeal.
Before I took any further steps, the arbitrator extended the time for Mr. Ndem to express his willingness to attend an IE, and scheduled a resumption of the hearing in September 2001 to deal with any outstanding issues. The resumption did not go ahead because Mr. Ndem and General Accident reached a settlement, resolving all issues in dispute between them.
By this time, I had been contacted by the Association des juristes d’expression francaise de l’Ontario. This organization had previously expressed an interest in intervening in the appeal, and in November 2001, filed an Application for Intervention. Before receiving this application, I had written to counsel for the Superintendent asking for submissions on whether the settlement between the parties rendered the appeal moot. On December 6, 2001, still before deciding on the intervention, I received a letter on behalf of the Superintendent, stating that although he had not changed his position on the issues raised in the appeal, he accepted that the settlement raised questions about mootness. As a result, he asked to withdraw the appeal.
The Association des juristes responded that the Minister should either abandon the appeal without reservations or proceed. It suggests that I issue a decision confirming the withdrawal and stating that the arbitrator’s decision is upheld, including the parts dealing with the French Language Services Act.
In my view, there is no reason to refuse the withdrawal. Mr. Ndem and General Accident have not participated in the appeal and, as a result, have not incurred any expenses. The Superintendent does not wish to proceed. The fact that he cites mootness as the reason does not affect the status of the arbitration decisions. They stand as arbitration decisions which, although appealed, have not been reviewed on the merits due to the withdrawal.
December 14, 2001
David R. Draper Director of Arbitrations
Footnotes
- Ontario Regulation 403/96, as amended, the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996.