Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2002 ONFSCDRS 107

Appeal P01 -00047

OFFICE OF THE DIRECTOR OF ARBITRATIONS

GUARANTEE COMPANY OF NORTH AMERICA

Appellant

and

TIMOTHY MCDONALD

Respondent

Before:

Nancy Makepeace, Director's Delegate

Counsel:

Greg Van Berkel (for Guarantee)

Richard J.T. Shaheen (for Mr. McDonald)

APPEAL ORDER

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

1. The appeal is allowed. The Arbitrator's order, dated October 30, 2001, is revoked and replaced with the following:

Subsection 30(4) of the SABS-1996 applies to income replacement benefits that would otherwise be payable, whether the amounts relate to a period before or after the insured person is found guilty of an offence described in s. 30(5), or an included offence.

The parties may approach the Arbitrator with respect to the other issues that arise in relation to the application of s. 30 to Mr. McDonald.

2. Guarantee shall pay Mr. McDonald's appeal expenses.

July 5, 2002

Nancy Makepeace Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal is about the "criminal offences" exclusion in subsections 30(4) and (5) of the SABS-1996.¹ Guarantee appeals from the Arbitrator's conclusion that the exclusion does not apply to benefits payable after a conviction, and therefore Mr. McDonald is not precluded from proceeding to arbitration of his claim. Although this is an appeal from a preliminary issue decision, I granted leave to appeal under Rule 50.2 of the Dispute Resolution Practice Code²because of the novelty and importance of the issue. Oral appeal submissions were heard on March 20, 2002.

For the following reasons, I find that the Arbitrator's conclusion was in error.

II. THE ARBITRATION DECISION AND THE ISSUE IN DISPUTE

Mr. McDonald was injured in the early morning hours of June 6, 1998. On August 18, 1998, he appeared in Provincial Court and pleaded guilty to a charge of assault under s. 266 of the Criminal Code arising out of the events of that night. At arbitration, the parties agreed on the facts, which had been read into court by the Crown prosecutor.

After leaving a bar at 2:30 a.m., Mr. McDonald, who was very intoxicated, got into a fight with another patron, Richard Staples, in the parking lot. In the words of the Crown prosecutor:

Staples started to walk away toward a vehicle in the parking lot that was going to give him a ride home. He managed to get into the passenger side of the pick up truck only to be followed by the accused. He did not have a chance to get the door closed because the accused was trying to get at him. Mr. Staples then managed to get his foot up on Mr. McDonald's chest and push him away from the open door of the vehicle. Before Mr. Staples could get the door closed, Mr. McDonald, once again, was back at Mr. Staples, grabbing him by the shirt. All the time, the driver of the truck was telling Mr. McDonald, the accused, to get away from his truck. The driver of the pick up truck then put his vehicle into gear and left the area.

Mr. Staples sustained several abrasions to the right elbow and wrist as a result of being thrown to the ground. He also received a scratch to his chest as a result of being grabbed.

Mr. McDonald was struck by Mr. Staples' vehicle as it pulled away. On his application for accident benefits, he stated, "[Mr. Staples] back up and dragged me down parking lot. Fractured Vertabrae (L5)" [uncorrected].

On conviction for assault, Mr. McDonald was fined $400, plus a 15 per cent surcharge.

In October 1998, two months after his conviction, he applied for weekly income benefits under s. 7 of the SABS-1996. The application for accident benefits includes the question, "were you charged?," followed by checkboxes labelled "Yes (Give Details)" and "No." Mr. McDonald checked off the "yes" box, but did not supply details about the charge.

Guarantee paid IRBs until November 24, 2000, when benefits were terminated on the basis that Mr. McDonald did not meet the test for benefits more than 104 weeks after the accident.³ Six months later, Guarantee became aware of Mr. McDonald's conviction. On June 25, 2001, Guarantee served notice, under ss. 47(1)(b) and 47(2) of the SABS-1996, that it sought repayment of benefits paid in the 12-month period prior to the notice — between June 24, 2000 and November 24, 2000. The claim was limited to benefits paid within the last 12 months, in accordance with s. 47(3).⁴

Mr. McDonald commenced mediation, followed by arbitration of his claim for ongoing benefits. At the preliminary issue hearing before the Arbitrator, Guarantee submitted that ss. 30(4) and (5) of the SABS-1996 preclude Mr. McDonald from receiving weekly benefits. Mr. McDonald submitted that s. 30(4) does not apply to benefits paid after his conviction. Subsections 30(4) and (5) are as follows:

30(4) If a person sustains an impairment as a result of an accident and,

(a) at the time of the accident, the person was engaged in, or was an occupant of an automobile that was being used in connection with, an act for which the person is charged with a criminal offence; or

(b) the person is charged under section 254 of the Criminal Code (Canada) with failing to comply with a lawful demand to provide a breath sample in connection with the accident, the insurer shall hold in trust any amounts payable under an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22 until the charge is finally disposed of, at which time the amounts and any income on the amounts,

(c) shall be returned to the insurer, if the person is found guilty of the offence or an included offence; or

(d) shall be paid to the person entitled to the payment, if the person is not found guilty of the offence or an included offence.

The Arbitrator considered the language of s. 30(4), its legislative evolution, and its context in s. 30.⁵ He concluded that s. 30(4) applies only to benefits that would otherwise be payable before the insured person's conviction:

The only exclusion [in s. 30(4)] is set out by necessary implication in clauses 30(4)(c) and (d): since the person found not guilty of the offence is "the person entitled to the payment" under clause (d), it follows that the person found guilty of the offence was not entitled to - that is, disqualified from - payment. However, the "payment" in question is only "any amounts payable under an income replacement benefit . . . until the charge is finally disposed of."⁶

The Arbitrator concluded:

Since the Schedule does not specifically provide that Mr. McDonald is disentitled to benefits after his charge was finally disposed of, it follows that he is not precluded from receiving income replacement benefits because of the application of subsections 30(4) and (5) of the Schedule⁷

On appeal, Guarantee submits that while ss. 30(4) and (5) set out a complete procedural code, the substantive basis for a general conviction-based exclusion is found by implication in s. 30, considered as a whole. It relies on the heading to Part IX, "general exclusions," and argues that the phrase, "until the charge is finally disposed of," modifies "the insurer shall hold in trust," not "any amounts payable," as the Arbitrator found. Guarantee also submits that the Arbitrator's interpretation of s. 30(4) offends public policy.

III. ANALYSIS

On its face, s. 30(4) applies to benefits that would otherwise be payable pending disposition of a charge on one of the offences listed in s. 30(5), or an included offence. It contains no express exclusionary language. The only part of s. 30(4) that authorizes an insurer to withhold benefits that would otherwise be payable is the phrase, "at which time the amounts and any income on the amounts . . . shall be returned to the insurer, if the person is found guilty of the offence or an included offence." The word "returns" implies that the "amounts" at issue are the amounts that were held in trust pending disposition of the charge. As the Arbitrator noted, "the trust mechanism never took effect in this case" because Mr. McDonald did not apply for benefits until after he had been convicted.⁸ The section is silent with respect to the disposition of "any amounts payable" after final disposition of the charge.

Three interpretive principles support Mr. McDonald's submission that s. 30 does not create an exclusion with respect to benefits payable after a conviction.

Exclusion Clauses. Mr. McDonald's interpretation is consistent with the principle that exclusion clauses are to be interpreted narrowly, and coverage provisions broadly.⁹

Implied Exclusion: Applying the principle of implied exclusion ("to express one thing is to exclude another"), the legislature's explicit treatment of benefits before final disposition of the charge implies that its silence about benefits payable afterwards is intentional.¹⁰

Consistent Expression: The language of s. 30(4) contrasts with s. 30(1) and (2), which open with the words, "[t]he insurer is not required to pay an income replacement benefit . . ." I agree with the Arbitrator that these words "create a general disqualification from payment of IRBs that is not limited to a certain time period."¹¹ Guarantee's interpretation violates the presumption of consistent expression.¹²

Other interpretive aids point the other way.

Heading: Headings are now accepted as appropriate aids to statutory construction, at least in case of ambiguity.¹³ The weight to be given a heading depends on a number of factors:

The extent of the influence of a heading . . . will depend upon many factors including (but the list is not intended to be all-embracing) the degree of difficulty by reason of ambiguity or obscurity in construing the section; the length and complexity of the provision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; the presence or absence of a system of headings which appear to segregate the component elements of the [legislation] and the relationship of the terminology employed in the hearing to the substance of the headlined provision.¹⁴

Subsection 30(4) is part of s. 30, which is the only section in Part IX of the SABS-1996, headed "General Exclusions." The predecessor provisions in the SABS-1990 and SABS-1994 were headed "Exclusions." Whatever the reason for the addition of the word, "general," in the SABS-1996, it certainly does not suggest any retrenchment from the application and operation of the exclusions. In my view, retention of the term "exclusions" suggests that the legislature intended s. 30 to have the same effect as its predecessors. This supports Guarantee's submission that the silence of s. 30(4) with respect to benefits payable after conviction reflects only a formal change.

Legislative Evolution: The predecessors of s. 30(4) and (5) — s. 17(1) of the SABS-1990 and s. 58(1) of the SABS-1994 - begin with the same general exclusionary words used in s. 30(1) and (2) of the current regulation, "[t]he insurer is not required to pay . . ." When the conviction-based exclusions were given separate treatment in the SABS-1996, these words were omitted. The omission of key operative language strongly suggests an intention to narrow the consequences of that exclusion.

Arbitrators and appeals adjudicators have frequently relied on legislative evolution as an aid to statutory construction.¹⁵ However, legislative evolution "must be used cautiously because the adjudicator may not be able to distinguish amendments that are meant to clarify or confirm the law from amendments that are meant to change the law.'"¹⁶ In this case, several factors tend to rebut the presumption that the omission of rules about benefits payable after a conviction was deliberate.

The earlier Schedules included an exclusion for convictions "of an indictable offence related to the operation of the automobile."¹⁷ The application of the exclusion has been expanded. Section 30 is not limited to indictable offences. In addition, clause 30(5)(d) applies to "any other criminal offence, whether or not the offence is related to the operation of an automobile." As the Arbitrator noted,

Under the previous Schedules, the assault conviction would not have precluded Mr. McDonald from receiving benefits, as he was not operating the automobile at the time of the accident nor could the offence be related to the operation of an automobile. However, the assault conviction could preclude him under clause 30(5)(d), as it is "any other criminal offence," provided that Mr. McDonald was engaged in the assault at the time of the accident.¹⁸

The legislature broadened two of the other exclusions at the same time it introduced the provision at issue in this proceeding. Section 30(1)(b) excludes a driver who was driving the automobile without a valid driver’s licence, including licence suspensions. The previous versions of this provision exempted licence suspensions resulting from non-payment of a fine,¹⁹ but that exemption has been removed from the SABS-1996. In addition, previous versions excluded drivers of uninsured vehicles only if convicted.²⁰ No conviction is required by s. 30(1)(a) of the SABS-1996, although the insurer must show that the driver knew or ought reasonably to have known the vehicle was uninsured. There is no suggestion that these amendments, which broadened the scope of the exclusions, put a temporal limit on the consequences of exclusion. I find that s. 30 was intended to make a strong public policy statement than its predecessors. Mr. McDonald’s interpretation runs counter to that policy direction. I find it more likely that the legislature intended consistent treatment of all exclusions.

Legislative History: As extrinsic evidence of legislative intent, Guarantee relies on statements made in the Legislative Assembly by Robert Sampson, MPP, when the legislation was introduced:

Under this new system, somebody injured in a vehicle while using it to commit a criminal offence will not be entitled to income replacement benefits. Those caught drunk driving, failing to provide a breath sample, operating their own uninsured vehicle, operating a vehicle without an owner's consent and driving without a valid driver's licence will be ineligible for income replacement benefits, non-earner and student benefits, housekeeping benefits or visitor benefits. These measures return accountability to Ontario drivers.²¹

Although this passage is not very helpful about the details of the amendments, it clearly expresses the government's intention that the persons affected be "ineligible" for weekly benefits. I am confident the ineligibility was intended to apply to weekly benefits payable both before and after a conviction.

Legislative Purpose and Avoiding Absurdity: Mr. McDonald urges me to follow the approach taken by the Divisional Court in Wawanesa Mutual Insurance Co. v. Ontario Provincial Police (Commissioner).²² The issue in that case was whether Wawanesa had a subrogated right against the defendants with respect to statutory accident benefits arising out of a motor vehicle accident on January 10, 1998. Although the case was decided on the basis that the lower court judge had misconstrued s. 218.8(18), the Court criticized Wawanesa's argument that its interpretation would allow automobile insurers to decrease premiums, in keeping with the purposes of Bill 59:

In my view, this argument is frivolous and invites unbridled judicial law-making. It is not the role of courts to go through a statute and give it other than its literal meaning just because the court believes to do so would further only one of the many policies of the legislation. This legislation is extremely complex, and contains many policy compromises.²³

If Wawanesa represents a rather conservative approach to statutory construction, it is, nevertheless, one of many judicial statements indicating that a liberal and remedial approach to legislative text is not open-ended. No doubt it was the Arbitrator's respect for the text that led him to suggest that the legislature may have put a temporal restriction on the "engaged in a criminal offence at the time of the accident" exclusion in order to counterbalance its breadth.²⁴However, as there is no evidence of any intention to lessen the burden of the exclusion, I am not persuaded.

More persuasive is the Arbitrator's suggestion that the legislature did not find it necessary to address entitlement to benefits after a conviction because they assumed that "a trial and any appeals or even re-trials after appeals could easily take more than 104 weeks from the time of the accident, the maximum period of benefit for many claims under the Schedule." I agree that s. 30(4) is intended to address the inevitable delay between a charge and its ultimate disposition.

Subsections 30(4) and (5) depend on a conviction, unlike the exclusions defined in s. 30(1) and (2). I find that s. 30(4) has two purposes. The first is to permit insurers to withhold payment of benefits that would otherwise be payable, allowing them, instead, to put the money in trust. Without this provision, insurers would arguably have to pay the benefits, with little practical hope that they would be able to recover what could be a substantial overpayment after a conviction. The second purpose of s. 30(4) is to ensure that the affected exclusions apply only in the case of a conviction, in accordance with the presumption of innocence. I accept that the legislature did not intend s. 30(4) to allow an excluded insured person to receive benefits after conviction on a referenced charge.

I also accept Guarantee's submission that Mr. McDonald's interpretation produces absurd consequences. It allows a person convicted of an offence to receive benefits after being found guilty, despite forfeiting the benefits otherwise payable pending final disposition of the charge. It creates uncertainty because the amount forfeited depends on the duration of the judicial process, and whether the person pleads guilty or not guilty. Mr. McDonald did not offer any reason to think these consequences were intentional.

Mr. McDonald's interpretation of s. 30(4) also violates the principle that the penalty should be proportionate to the misconduct. For example, it would impose harsher consequences on a person excluded under s. 30(1)(b) for driving while his driver's licence was suspended than on someone who used the vehicle to commit a criminal offence for which he was convicted. Finally, Mr. McDonald's interpretation has the effect of narrowing all the conviction-based exclusions, including impaired driving and failing to provide a breath sample, not just the expanded exclusion described in s. 30(4)(d).

I do not accept the legislature intended these results, which violate public policy.

Modern courts reject technical or literal approaches to statutory interpretation. I adopt the approach described by the Ontario Court of Appeal in Bapoo v. Co-Operators General Insurance Company:

The modern approach to statutory interpretation calls on courts to interpret a legislative provision in its total context. The court's interpretation should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning.²⁵

Although some textual clues support Mr. McDonald's interpretation of s. 30(4), the implications of that reading dictate another interpretation, in my view. The evolution of the exclusions also supports Guarantee's construction because the other changes substantially broaden the scope of the exclusions, and Mr. Sampson's comments to the legislature point in the same direction. The heading for Part IX ("general exclusions") adds weight to Guarantee's interpretation.

In my view, s. 30(4) should be amended to clarify legislative intent. Nonetheless, I find its meaning clear enough. I have little doubt that it was intended to create a general exclusion with similar effect to the other exclusions in Part IX. I find that the Arbitrator erred by giving insufficient attention to legislative purpose and the need to avoid absurdity. I accept Guarantee's submission that the temporal clause - "until the charge is finally disposed of" - modifies "the insurer shall hold in trust," and does not modify "any amounts payable." I find that "any amounts payable" must be given a broad interpretation, including benefits payable before or after a conviction on a defined offence.

This does not end the matter.

IV. THE REMAINING ISSUES

Mr. McDonald submits that "at the time of the accident," he was not engaged in the act for which he was charged. The parties disagreed about whether the Arbitrator made a finding on this issue and whether the issue should be addressed in this appeal. Guarantee relied on the following comment, at the end of the Arbitrator's reasons:

For clarity, I do find that Mr. McDonald was disqualified for payment of IRBs up to the time of the conviction for the purposes of the repayment provisions.²⁶

Guarantee argued that this implies a finding that the assault continued at the time of the accident. However, in an earlier comment, the Arbitrator said,

Mr. McDonald argued that the assault had concluded by the time of the accident. While I have my doubts on that point, it is not necessary for me to decide it because of the time-limitation set out in subsection 30(4). . .²⁷

I considered this issue in the context of the parties' dispute about whether the appeal should be rejected or acknowledged under Rule 51.2(c) of the Code. I find the decision ambiguous, given the different contexts of these two statements. On balance, I conclude that the Arbitrator did not decide the issue, mainly because of the brevity of his comments. The scope of the events that constitute an "accident," as defined in the SABS-1996 and earlier regulations, has been the subject of much debate in FSCO case law. I am persuaded that the Arbitrator would have discussed the relevant principles if he had reached a conclusion. Accordingly, the issue is not before me in this appeal.²⁸

Mr. McDonald also submitted at arbitration that Guarantee had waived its right to rely on s. 30, or was estopped from doing so. The Arbitrator did not address this issue in his reasons, presumably because of his conclusion on the issue under appeal. Given the outcome of this appeal, the parties may wish to request that the Arbitrator issue written reasons on these points.

V. EXPENSES

Despite the outcome of the appeal, Guarantee shall pay Mr. McDonald's appeal expenses. In my view, ensuring access to justice requires that insured persons should not be deterred from applying for arbitration because of the risk that a favourable arbitration decision might be successfully appealed by the insurer. In this case, Mr. McDonald's application for arbitration raised novel and important issues, and I find there is no compelling reason for departing from that principle.

I may be contacted if the parties are unable to agree on the amount owing.

July 5, 2002

Nancy Makepeace Director's Delegate

Date

APPENDIX: PART IX - GENERAL EXCLUSIONS

30. (1) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22²⁹ in respect of a person who was the driver of an automobile at the time of the accident,

(a) if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy;

(b) if the driver was driving the automobile without a valid driver's licence;

(c) if the driver is an excluded driver under the contract of automobile insurance; or

(d) if the driver knew or ought reasonably to have known that he or she was operating the automobile without the owner's consent.

(2) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22,

(a) in respect of any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in the risk material to the contract; or

(b) in respect of an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner's consent.

(3) Clause (2) (b) does not prevent an excluded driver or any other occupant of an automobile driven by the excluded driver from recovering accident benefits under a motor vehicle liability policy in respect of which the excluded driver or other occupant is a named insured.

(4) If a person sustains an impairment as a result of an accident and,

(a) at the time of the accident, the person was engaged in, or was an occupant of an automobile that was being used in connection with, an act for which the person is charged with a criminal offence; or

(b) the person is charged under section 254 of the Criminal Code (Canada) with failing to comply with a lawful demand to provide a breath sample in connection with the accident,

the insurer shall hold in trust any amounts payable under an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22 until the charge is finally disposed of, at which time the amounts and any income on the amounts,

(c) shall be returned to the insurer, if the person is found guilty of the offence or an included offence; or

(d) shall be paid to the person entitled to the payment, if the person is not found guilty of the offence or an included offence.

(5) In clause (4) (a),

"criminal offence" means,

(a) operating an automobile while the ability to operate the automobile is impaired by alcohol or a drug,

(b) operating an automobile while the concentration of alcohol in the operator's blood exceeds the limit permitted by law,

(c) failing to comply with a lawful demand to provide a breath sample, or

(d) any other criminal offence, whether or not the offence is related to the operation of an automobile.

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00.
2. 2Fourth Edition (May 31, 2001)
3. 3Pursuant to s. 5(2)(b), the insurer is not required to pay IRBs "for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience."
4. 4Pursuant to s. 47(4), the 12-month limitation on repayments in s. 47(3) does not apply if the benefits were paid as a result of wilful misrepresentation or fraud. Guarantee's repayment request did not allege misrepresentation or fraud. At arbitration, Mr. McDonald argued that Guarantee had waived its right to rely on s. 30, or was estopped from doing so. The Arbitrator did not find it necessary to decide that issue, and it is not in dispute in this appeal.
5. 5Section 30 is set out in its entirety in an appendix to this decision.
6. 6Arbitration decision, pp. 8-9.
7. 7Arbitration decision, p. 10.
8. 8Arbitration decision, p. 8. This comment was contained in a footnote, and it is not clear whether it formed an independent ground for the Arbitrator's decision. My decision does not turn on it.
9. 9For example, see Madil v. Chu, 1976 CanLII 32 (SCC), [1977], 2 S.C.R. 400 (S.C.C.); Redd Crowtther & Partners v. Simcoe & Erie General Insurance Company, 1993 CanLII 150 (SCC), [1993] 1 S.C.R. 252 (S.C.C.); Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 (S.C.C.); Van Dehwal v. State Farm Mutual Automobile Insurance Company, [1994] O.J. No. 948 (Ont.Gen.Div.); Chilton v. Co-operators General Insurance Co, 1997 CanLII 765 (ON CA), [1997] O.J. No. 579 (Ont.C.A.); Sullivan Entertainment Inc. v. General Accident Assurance Co. of Canada, [1998] O.J. No. 2214 (Ont.Gen.Div.); Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551; Monenco Ltd. v. Commonwealth Insurance Company, 2001 SCC 49, [2001] 2 S.C.R. 699 (S.C.C.);Bird Estate v. Canada Life Insurance Co, (2001), 2001 CanLII 28078 (ON SC), 57 O.R. (3d) 180 (Ont.S.CJ.); Snaak v. Dominion of Canada General Insurance Company, unreported decision of Ontario Court of Appeal, April 19, 2002 (Court File No. C36897); Brown and Menzies, Insurance Law in Canada, Second Edition, (Carswell, 1991), p. 131.
10. 10Driedger on the Construction of Statutes, Third Edition, Ruth Sullivan (Butterworths:1994), p. 168.
11. 11Arbitration decision, p. 5.
12. 12Sullivan, ibid., p.163.
13. 13Law Society of Upper Canada v. Skapnnker (1984), 1984 CanLII 3 (SCC), 9 D.L.R. (4th) 161 (S.C.C.); African Lion Safari & Game Farm Ltd. and Kerrio et al. (1987), 1987 CanLII 4079 (ON CA), 59 O.R. (2d) 65 (Ont. C.A.); Paty v. Ontario (Attorney General), 1997 CanLII 12210 (ON CTGD), [1997] O.J. No. 5040 (Ont. Gen. Div.); Vanscoy v. Ontario, [1999] O.J. No. 1661 (Ont. S.C.J.); Sullivan, ibid., pp.268-273. The earlier view is expressed in s. 9 of the Interpretation Act, R.S.O. 1990, c. 1.11, as amended, which states that headings "shall be deemed to be inserted for convenience of reference only."
14. 14Law Society of Upper Canada v. Skapinker, ibid., at 176 P.L.R.
15. 15I considered the role of legislative evolution as an aid to statutory interpretation in Shearstone and York Fire & Casualty Insurance Company, (FSCO P01-00013, January 8, 2002), at p.8.
16. 16Bapoo v. Co-Operators General Insurance Company, (1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616 (Ont. C.A., per Laskin J.A., Labrosse J.A. concurring), leave to appeal to the Supreme Court of Canada dismissed with costs, June 11, 1998 (S.C.C. File No. 26466). The same point was recognized in Vijeyekumar v. State Farm (1998) 1998 CanLII 14669 (ON CTGD), 38 O.R. (3d) 590 (Ont. Gen. Div.), upheld (1999), 1999 CanLII 1640 (ON CA), 44 OR (3d) 545 (Ont. C.A.), leave to appeal to the Supreme Court of Canada dismissed with costs, May 3, 2000, [1999] S.C.C.A. No. 438. The Court did rely on legislative evolution, along with other considerations, in both cases. See also ss. 17-19 of the Interpretation Act, R.S.O. 1990, c.I11.
17. 17Clause 17(1)(a) of the 1990 Schedule, clause SS(1)(a) of the 1994/1995 Schedule. [footnote in original]
18. 18Arbitration decision, p. 7.
19. 19Sections 17(1)(d) and 17(2) of the SABS-1990 and ss. 58(1)(d) and 58(2) of the SABS-1994.
20. 20Section 17(1)(c) of the SABS-1990 and s. 58(1)(c) of the SABS-1994.
21. 21Hansard, June 13, 1996.
22. 22(2001), 2001 CanLII 38746 (ON SCDC), 54 O.R. (3d) 112.
23. 23At 122 O.R.
24. 24Arbitration decision, p. 9.
25. 25(1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616.
26. 26Arbitration decision, p. 10. I do not find it necessary to consider whether this statement is inconsistent with the Arbitrator's general conclusion on the issue on appeal.
27. 27Arbitration decision, p.7. Later, the Arbitrator stated, "even assuming that Mr. McDonald was engaged in the assault at the time of the accident, I find that subsection 30(4) only applies to benefits payable during the period up to the time the charge was 'finally disposed of,' which was the conviction on August 18, 1998." [p.9, italics added] The Arbitrator's use of "even" suggests that the issue remained open.
28. 28My ruling on this point was set out in my letter, dated December 4, 2001, acknowledging the appeal.
29. 29These sections govern, respectively, lost educational expenses, visitors' expenses, and housekeeping and home maintenance expenses.