Neutral Citation: 2002 ONFSCDRS 72
FSCO A00-001250
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
TIMOTHY W. SUTHERLAND by his father, Sidney Keith Sutherland
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION ON A MOTION
Before:
David Muir
Heard:
February 19, 2002, in London, Ontario.
Written submissions were received on February 27 and March 11, 2002.
Appearances:
Ian S. Wright for Mr. Sutherland
Scott Smith for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Timothy W. Sutherland, is an 11-year-old boy. His mother was killed in a motor vehicle accident on November 16, 1999. He was not involved in the accident itself. His father, Sidney K. Sutherland, applied on Timothy's behalf for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.1 Some benefits have been paid and others have not. The parties were unable to resolve all of their disputes at mediation and Mr. Sutherland applied for arbitration on his son's behalf.
A pre-hearing discussion was held and dates for an arbitration hearing were set.
The parties participated in a settlement discussion on December 14, 2001 and came to what they both thought was an agreement. The settlement has not been finalized to date because of differences between the parties about the content of the purported agreement and no releases have been executed.
Mr. Sutherland, on behalf of his son, seeks enforcement of the purported settlement. In particular he seeks an order requiring Royal to pay to his solicitor in trust, pending Court approval, the sum he says it agreed to pay in the settlement discussion, plus interest on that amount from the date the settlement was purportedly made. Royal now disputes that a settlement was made between the parties. It is the present position of Royal that there was no consensus ad idem — no meeting of the minds when the purported agreement was reached and therefore there is no binding settlement.
I discuss in more detail below the disagreement between the parties about the contents of the purported agreement. For the moment it can be described as turning in part on whether the parties agreed to a full and final settlement of all of Timothy Sutherland's claims including any potential future claims to benefits, or was merely a settlement of the issues in dispute in the arbitration.
At the motion hearing I raised the issue of whether I had jurisdiction to order the payment of the sum the parties agree Royal promised to pay in exchange for a release of some kind. The parties were not prepared to argue the point and I asked for written submissions.
Mr. Sutherland also seeks a special award based on the alleged failure of Royal to comply with the terms of the purported settlement. However, at the hearing of the motion, the parties agreed that the special award issue should await my determination of the primary questions.
Because Mr. Sutherland is a minor any settlement is subject to approval of the court. In light of the result here there is no need to consider the issue in detail, it suffices to say that whatever conclusions I might have come to with respect to the enforcement of the purported settlement would be subject to the approval of the court.
The questions raised by the Applicant's motion are as follows:
Do I have jurisdiction to determine the existence of a binding settlement between the parties?
If the answer to question 1 is yes, was there a binding agreement between the parties on December 14, 2001?
If the answer to question 2 is yes, do I have jurisdiction to order that Royal pay a lump sum in favour of the minor Applicant as it agreed to do on December 14, 2001 in exchange for a Release of some or all of Mr. Sutherland's claims under the Schedule?
Result:
I have jurisdiction to determine whether or not there was a binding settlement agreement between the parties.
There was no binding agreement made between the parties on December 14, 2001.
I decline to determine whether or not I may order that Royal pay a lump sum to Mr. Sutherland as it agreed to do on December 14, 2001 in exchange for a Release of some or all of Mr. Sutherland's claims under the Schedule because of my conclusion about the answer to the second question.
Evidence and Analysis:
The Applicant relied upon his father's affidavit. Royal relied on the affidavits of Ms. Joan Takahashi and Ms. Amarin Tsujimura. Mr. Sutherland was cross-examined on his affidavit.
There were objections made by Mr. Sutherland to several passages in the affidavits of both Ms. Takahashi and Ms. Tsujimura primarily because the passages introduced alleged statements made by an arbitrator assisting the settlement discussions, or impressions that participants had based on things that the arbitrator was alleged to have said. The parties were able to resolve some of these objections. Submissions were heard in respect of other passages and with oral reasons given at the hearing, I ruled that these other passages ought to be excised as well for the reason that they tended to reveal alleged statements of the arbitrator assisting the parties during the settlement conference.
Jurisdiction:
The question of my jurisdiction is fundamental. There are two jurisdictional issues raised in this case as set out above. These issues must be decided, I cannot, by agreement of the parties, assume a jurisdiction that I do not have.
The existence of a settlement has often been considered by arbitrators, most often in the context of its being raised as