Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2002 ONFSCDRS 86

Appeal P01-00058

OFFICE OF THE DIRECTOR OF ARBITRATIONS

CGU INSURANCE COMPANY OF CANADA Appellant

and

JACOB BITTAN Respondent

Before: David R. Draper, Director of Arbitrations

Counsel: Frank A. Benedetto (for the Appellant) David R. Neill (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 allowed in part. The arbitration order dated November 27, 2001, is revoked and replaced by the following:
1. The arbitration application filed on behalf of the late Jacob Bittan may proceed on the condition that, forthwith, Mr. Leon Bittan confirms in writing that he is pursuing this arbitration on behalf of his late father's estate, and requests that the style of cause be amended to reflect his involvement.
2. If the arbitration proceeds, the estate of the late Jacob Bittan shall pay the arbitration expenses incurred by CGU Insurance Company of Canada between April 12, 2001 (the date of the first pre-hearing) and November 27, 2001 (the date of the arbitrator's decision). This amount need not be paid forthwith, but shall be taken into account in any further arbitration order.
The parties will bear their own appeal expenses.

May 30, 2002

David R. Draper Director of Arbitrations

Date

REASONS FOR DECISION

I. ISSUE

This is an appeal by CGU Insurance Company of Canada ("CGU") from a preliminary arbitration order dated November 27, 2001. At issue is the status of an application for arbitration filed by Mr. Bittan's lawyer without knowing that his client had passed away a few days earlier. In CGU's submission, the application is a nullity and, therefore, the arbitrator erred in law in allowing it to proceed on the authority of an estate trustee appointed a year later. For reasons that follow, I agree with the result reached by the arbitrator, but not his analysis.

II. BACKGROUND

Mr. Bittan was hit by an automobile on September 19, 1997. At the time, he was 90 years old, married and had an adult son, Leon Bittan. Mr. Bittan completed an application for accident benefits the day after his accident. CGU paid certain benefits under the SABS-1996,¹ but denied others. In the spring of 2000, Mr. Bittan applied for mediation. The Report of Mediator, dated July 7, 2000, indicates that Mr. Neill from the law firm Thomson, Rogers represented him at mediation. CGU was represented by its ADR Coordinator. The mediation was partially successful, but the parties were unable to resolve the following issues:

weekly non-earner benefits from March 19, 1998, to date and ongoing;
medical and rehabilitation expenses based on a "future care report" dated October 13, 1999;
attendant care benefits for services provided by various family members from September 19, 1997 to September 18, 1999, at a rate higher than the rate paid by CGU; and,
the cost of weekly housekeeping and home maintenance services provided from September 17, 1997 to September 18, 1999.

On or about September 27, 2000, the Commission received an Application for Arbitration signed and filed by Mr. Neill on behalf of Mr. Bittan. Mr. Neill signed this application on instructions from Mr. Bittan, without knowing that his client had passed away a few days earlier on September 21, 2000. When he learned of Mr. Bittan's death, Mr. Neill promptly advised CGU — within a week of the application being filed.

Mr. Benedetto filed a Response by Insurer to an Application for Arbitration on behalf of CGU. It notes that Mr. Bittan had passed away, but does not specifically challenge the application as a nullity. In other respect, it is a "boiler plate" response, contesting Mr. Bittan's entitlement to the additional benefits claimed.

The Commission scheduled a pre-hearing, which took place on April 12, 2001, nearly seven months after Mr. Bittan's death. The pre-hearing letter indicates that Mr. Neill and a law clerk " represented Mr. Bittan," and provides the following summary:

Our discussions at the pre-hearing focussed on the effect of Mr. Bittan's death on the proceeding that has been commenced. I was advised that Mr. Bittan died intestate, and that no executor or administrator has been appointed to administer his estate. I was also advised that a power of attorney was executed by Mr. Bittan prior to his death in favour of his son, Leon Bittan, authorising him to look after his father's financial affairs. CGU takes the position that the application cannot proceed as currently constituted in the absence of anyone with proper authority to provide consent for the disclosure of necessary documents or to make decisions regarding the claims being pursued.

Mr. Neill advised that he would take the necessary steps to have a "litigation administrator" appointed, pursuant to Rule 9 of the Rules of Civil Procedure.

In follow-up letters dated April 17 and 24, 2001, Mr. Benedetto clarified that CGU was maintaining its position that the application for arbitration was a nullity. In doing so, he referred to The Late Kok Keung Au and State Farm Mutual Automobile Insurance Company, (FSCO A00-000852, April 3, 2001), a recently released arbitration decision in which Arbitrator Wilson held that an application brought in the name of a deceased person, without the involvement of his estate, was a nullity.

Two further pre-hearings were held on May 16 and June 28, 2001. A single pre-hearing letter followed, stating again that Mr. Neill "represented Mr. Bittan," and providing the following update:

The insurer initially took the position that the proceeding, as currently constituted, was a nullity as no litigation guardian or administrator had been appointed. After some discussion of the matter, counsel for the Applicant undertook to have Leon Bittan, the Applicant's son, appointed as "estate trustee." Mr. Neill advised on June 28 that he was in the process of obtaining the requisite court order but had not yet done so because he was awaiting the return of the Applicant's spouse to Canada in mid-July.

CGU objected to the contents of this letter, maintaining its position that the arbitration was a nullity, and asking for a preliminary hearing to determine this issue. As a result, a preliminary hearing was arranged before Arbitrator Wilson to be conducted by way of written submissions filed according to a timetable established by the pre-hearing arbitrator. I note that at this point, more than ten months after Mr. Bittan's death, there was still no one appointed to administer his estate.

CGU filed its submissions by August 24, 2001, as ordered. Mr. Neill was given an extension to file his submissions due to other demands on his time. His submissions were sent by covering letter dated September 24, 2001. The gist of his argument was that Mr. Bittan's death made the application for arbitration an irregularity that would soon be corrected, and that the person being appointed as trustee, Leon Bittan, had provided full authority to continue the arbitration proceeding on behalf of his late father's estate. Two days later, on September 26, 2001, Leon Bittan was named trustee of his father's estate by the Ontario Superior Court of Justice. Mr. Neill sent the Certificate of Appointment of Estate Trustee Without a Will to the Commission and Mr. Benedetto the following day.

CGU filed its reply submissions on October 5, 2001, within the time frame established by the pre-hearing arbitrator. It claimed that the appointment of Leon Bittan took too long and that his involvement was inappropriate due to his personal interest in the claims for housekeeping, home maintenance and attendant care benefits. More fundamentally, CGU argued that the appointment did nothing to regularize the arbitration proceeding. In its submission, Mr. Neill's authority ended with the death of his client, Mr. Bittan, making the application a nullity. Further, it claimed that neither the common law doctrine of relation back nor the Rules of Civil Procedure was available to regularize the proceeding.

Arbitrator Wilson released his decision on November 27, 2001. He rejected CGU's contention that the arbitration was a nullity, and allowed it to proceed. Specifically, the order states:

The arbitration application made on behalf of the late Mr. Jack Bittan may proceed.

The duly appointed representative of the estate of the late Jack Bittan shall have 60 days from the date of this decision to confirm, in writing, the continuance of this matter, and to formally request an appropriate change in the style of cause.

The estate of the late Leon Bittan [sic] shall have its expenses in this matter. If the parties are unable to agree on the amount of such expenses, I remain seized of this matter and may be spoken to.

The arbitrator's decision rests on two key points. First, he held that the common law doctrine of relation back was applicable, allowing Leon Bittan, as the duly appointed representative of his father's estate, to validate the application for arbitration filed after his father's death, but before he was appointed as trustee of the estate. Alternatively, he concluded that arbitration proceedings under Part VI of the Insurance Act are subject to Rule 9.03(3) of the Rules of Civil Procedure and, therefore, the arbitration was not a nullity. That Rule states as follows:

A proceeding commenced in the name of or against a person who has died before its commencement shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the executor or administrator or a litigation administrator appointed for the purpose of the proceeding and the title of the proceeding shall be amended accordingly.

On appeal, CGU challenges both aspects of the arbitrator's decision.

III. ANALYSIS

It is not obvious to me that this dispute was inevitable. While CGU had no reason to doubt that Mr. Neill acted on instructions from Mr. Bittan in applying for arbitration, a lawyer's authority does not survive the death of his client. This principle has been applied consistently by the courts and was accepted by Arbitrator Wilson in Au.² Therefore, when CGU learned that Mr. Bittan had died intestate before the application was filed, it had legitimate questions about the validity of the application and the nature of Mr. Neill's ongoing role. The problem, in my view, is that Mr. Neill did not provide prompt, clear answers.

As noted above, the pre-hearing letters continued to describe Mr. Neill as Mr. Bittan's representative. That cannot be correct. His client had died, ending any authority to pursue the claim on behalf of that client. The issue was whether he could proceed on behalf of Mr. Bittan's estate and, if so, whether he had authority to do so. While Mr. Neill's statements to the pre-hearing arbitrator suggested that he had been retained by Leon Bittan, this was not clarified. Paragraph 15 of CGU's submissions, filed almost a year after Mr. Bittan's death, but before an estate trustee was appointed, reflects this uncertainty. It states: "there was no entity as at the date of the applicant's death to proceed with the application for arbitration, whether it be an executor or an administrator, and there is no evidence that the estate has become involved in this matter at all."

Mr. Neill's responding submissions describe his law firm "Solicitors for the Applicant," namely, "Jacob Bittan a.k.a. Jack Bittan." They include assertions that the family was involved, but fall short of confirming a retainer from the estate. For example, in attempting to distinguish the Au decision, the submissions claim that:

(a) . . . the family of Jacob Bittan was in contact with Thomson, Rogers and fully supported commencing Arbitration following the failed mediation.

(b) . . . the family of Jacob Bittan was in contact with Thomson, Rogers and fully supported commencing Arbitration, following the failed mediation.

(c) . . . the action of launching the arbitration was commenced pursuant to the instruction of Jacob Bittan, prior to his death and was validated by a subsequently appointed administrator of the estate.

(d) . . . Thomson Rogers was given authorization to proceed to arbitration prior to Jacob Bittan's death and that authorization was not subsequently withdrawn by his estate and/or his family upon his death.

Paragraph 5 of the submissions provides an arguably clearer explanation of Thomson, Rogers' role, at least upon Leon's Bittan's appointment as Estate Trustee. It states: "As the Estate Trustee, Leon Bittan has provided full authority to continue these proceedings on behalf of his late father's estate."

In my view, this proceeding would have been greatly assisted if Mr. Neill had confirmed at an early stage that he had been retained by the estate (or by Leon Bittan as the person pursuing appointment as trustee), asked that the application for arbitration be corrected to reflect Mr. Bittan's death, and pursued the appointment of Leon Bittan more quickly. Nevertheless, like the arbitrator, I am not persuaded that the arbitration must, or should, be treated as a nullity. My reasons for reaching this conclusion, however, differ from his.

A. The Doctrine of Relation Back

The arbitrator relied on the doctrine of relation back. As he states at page 4 of his decision, relation back was developed by the courts "to give an administrator ability to validate actions taken on behalf of the estate." The theory, as expressed by Boyd J. in Trice v. Robinson (1888), 16 O.R. 433,³ is that "when a person is entitled to obtain letters of administration he may begin an action as administrator before he has fully clothed himself with that character." The problem in this case is that the application for arbitration was not filed on behalf of the estate by the person entitled to obtain letters of administration. It was filed on behalf of Mr. Bittan for his own benefit.

This is an important distinction in the relation back cases. In MacKenzie v. Carroll, cited above, Lieff J. considered the doctrine of relation back. Like the arbitrator, he refers to Halsbury's and Bodger v. Arch (1854), 10 Ex. 333, 156 E.R. 474, but draws a clear distinction between actions taken on behalf of the deceased and those taken on behalf of the estate:

The first thing to note from the above statement [from Bodger] is that in order for the doctrine of relation back to apply, the agent must have been acting on behalf of the estate, not the deceased. Secondly, the contract must have been for the benefit of the estate, not the deceased.

The involvement of a lawyer does not change this analysis. In Kopec v. Carlson, [1993] B.C.J. No. 2369 (B.C.S.C.), Ms. Kopec was hit by an automobile on Christmas eve 1990. She started a court action a few months later seeking damages for pain, suffering and loss of enjoyment of life.

In August 1993, she died of unrelated causes. The next day, her lawyer accepted a settlement offer unaware that his client had died. Following Ms. Kopec's death, her husband took over prosecution of the action. He acknowledged that the lawyer's authority to accept the offer did not survive his wife's death, but argued that he could validate the settlement based on the doctrine of relation back once he obtained letters of administration.

Lowry J. set out the following excerpt from Williams and Mortimer on Executors, Administrators and Probate (1970), summarizing the decision in Bodger v. Arch, cited above:

... whenever anyone acting on behalf of the intestate's estate, and not on his own account, makes a contract with another before any grant of administration, the administration will have relation back, in order not to lose the benefit of the contract, so that the administrator may sue upon it, as made with himself.⁴

Based on this formulation of relation back, Lowry J. found Mr. Kopec's position to be misconceived:

Even assuming Mr. Kopec was to be named the administrator of the estate, the doctrine of relation back has no application here. The solicitor was acting neither on behalf of the deceased nor her estate when he communicated acceptance of the offer: MacKenzie et al v. Carrol et al (1974), 1974 CanLII 508 (ON HCJ), 6 O.R. (2d) 706 at pp. 709-710 (Ont. H.C.) and McCallum et al.v. Trans. North Turbo Air (1971) Ltd. et al. (1978), 8 C.P.C. 1 (N.W.T.S.C.). There was no acceptance.

Recently, the Alberta Court of Appeal followed a similar analysis. In Stout Estate v. Golinowski Estate, 2002 ABCA 49, [2002] A.J. No. 247, a court action was brought by an administrator ad litem appointed under Rule 50 of the Alberta Rules of Court for the purpose of commencing an action in respect of the death of her child.⁵ The defendant brought a motion to strike the claim, arguing that an administrator ad litem can only defend, not sue. In discussing the application of relation back, the Court states:

There is also a distinction between a suit brought by an administrator ad litem and a suit brought in the name of the deceased. In the latter case there would be no existing person as plaintiff, and suits in this situation have also been characterized as nullities. The distinction is made in Clay v. Oxford (1866), L.R. 2 Ex 54 at 55:

This is not a case where it can be said that persons, not formally entitled to be parties, have brought an action to try certain matters perfectly well known to both sides . . . But here the plaintiff is altogether wrong, or there is no plaintiff; the man in whose name the action was brought was dead. It cannot be said that this is an amendment "necessary for the purpose of determining in the existing suit the real question in controversy between the parties," nor is this an application made between the parties to the suit; for there is no plaintiff, and, therefore, no existing suit, and no question in controversy between the parties. If we could see some person suing who had a beneficial interest in the claim made, though not legally entitled to sue, the case would be within the principle of the authorities cited. But the power of amendment is limited to cases where there was originally a party suing, possessed, though with a variety in legal description, of the same interest with the party to be substituted.

Consequently, I find little support for the arbitrator's conclusion that relation back is available to regularize an action started on behalf of a deceased person, even assuming that the broader judicial interpretations of relation back apply in Ontario. However, I also have difficulty with the arbitrator's treatment of McEllistrum v. Etches, cited above, dismissing it as an "anomalous Ontario case which could be read to support the Insurer's proposition."

In McEllistrum, the plaintiff sued for damages arising out of the death of his son, both personally under the Fatal Accidents Act, R.S.O. 1950, c. 132, and as administrator of his son's estate under the Trustee Act, R.S.O. 1950, c. 400. The defendant argued that the action was a nullity because it was started two weeks before the plaintiff was appointed as administrator. The Court of Appeal considered the old relation back cases cited by the arbitrator, including Chard v. Rae, cited above, and Johnson v. General Accident Assurance Co., 1928 CanLII 403 (ON SCHCD), 63 O.L.R. 296, [1929] 1 D.L.R. 597, but specifically declined to follow them:

After the most careful consideration I can give to the important question in controversy, I have decided that I cannot follow the earlier decisions in this Province. I think the statement of Boyd C. in Trice v. Robinson, supra, that "It was sufficient for all purposes that he [a plaintiff] should obtain letters before the case was heard, as they related back to the death", is too wide. The doctrine of "relation back" does not apply, in my opinion, to every case and is not available "for all purposes". It is my considered opinion that it is applicable only in cases where it is necessary to protect the estate in the interval between the death of the intestate and the grant of letters of administration.

The plaintiff appealed to the Supreme Court of Canada. Although leave was apparently granted on the relation back issue, the Court based its decision on other grounds. It held that because the action included a valid personal claim under the Fatal Accidents Act, it was not a nullity and, therefore, it was open to the trial judge to add the plaintiff as administrator for the purposes of the action under the Trustee Act once letters of administration were granted:

In view of the course of the trial, it is not necessary to decide whether the writ of summons so far as it related to the cause of action under The Trustee Act asserted by the plaintiff in the character of administrator was a nullity. Assuming without deciding that, in Ontario, an action under s. 37 of The Trustee Act for damages for a tort for personal injury caused to a deceased cannot be initiated by a person in the capacity of administrator before the grant of letters of administration and that in an action so commenced where no other claim is asserted the writ would be a nullity, it will be observed that in the case at bar the writ admittedly asserted a valid claim by the plaintiff in his personal capacity for damages under The Fatal Accidents Act. The writ therefore was not null in toto. It follows that when it was brought to the attention of the learned trial judge, on October 26, 1953, that letters of administration had not been granted to the plaintiff until after the issue of the writ it would have been open to him, on the view that so far as the writ related to the claim made qua administrator it was void, to order that the appellant in his capacity of administrator be then added as a party plaintiff. At that time no period of limitation had intervened, and the reason that the necessary steps to regularize the matter were not taken was that counsel for the respondent [defendant] made it plain that he was not raising the point that the action was improperly constituted.

In my opinion, this decision did not disturb the Court of Appeal's reasoning on the scope of relation back to an extent that the arbitrator was free to rely on decisions that the Court specifically rejected. In reaching this conclusion, I note that the Court of Appeal's analysis has been applied in later decisions. For example, in MacKenzie v. Carroll, cited above, Lieff J. considers the Court of Appeal and Supreme Court decisions and then states: "It appears that the doctrine of relation back can only apply in the case at bar so as to validate the authority of the plaintiffs' solicitor to enter into a settlement for claims of the estate under the Fatal Accidents Act."

Finally, I note that legislation was introduced to modify the approach taken by the courts. As the arbitrator states, s. 38 of the Trustee Act, R.S.O. 1980, c. 512, which was enacted to recognize certain actions brought on behalf of or against estates, was later repealed and replaced by Rule 9.03 of the Rules of Civil Procedure. The purpose of this Rule was discussed by Trotter D.C.J. in Raiz v. Vaserbakh, [1986] O.J. No. 1920, as follows:

The commentary to the rules by Watson and McGowan states that rule 9.03 contains a series of new remedial provisions to overcome a body of pre-existing case holding that, in a variety of situations, the improper constituting of proceedings against the estate made the proceedings a nullity. The rule is intended to be a specific application or an extension of the general principle found in rule 2.01 which provides that a failure to comply with the rules is an irregularity and does not render a proceeding or a step, document or order a nullity.

The need for Rule 9.03 reinforces my conclusion that the common law doctrine of relation back does not assist Mr. Bittan or his estate.

B. The Rules of Civil Procedure

As set out above, Rule 9.03(3) of the Rules of Civil Procedure states that a proceeding commenced in the name of someone who died before its commencement is not a nullity. Instead, the court is given a discretion to allow the proceeding to be continued by the executor, administrator or litigation administrator. CGU concedes that if Mr. Neill had acted on instructions to proceed in court instead of arbitration, the action would not have been a nullity. The question is whether, as the arbitrator held, "an arbitration proceeding, as an adjudication of legal rights, is a 'proceeding' as contemplated in Rule 9.03 of the civil Rules."

I am unable to agree with the arbitrator's analysis. According to s. 281(1) of the Insurance Act, arbitration and court are alternative options, with the choice of forum being given to the insured person. It would be surprising, therefore, if the same procedures applied to both. The better view, as has been stated many times, is that arbitration is meant to provide a relatively quick, inexpensive and informal means of dispute resolution. To this end, arbitrators appointed under the Insurance Act are statutorily obliged to follow the procedures established in that legislation, including rules enacted by regulation under s. 121(1)25 and rules made by the Director of Arbitrations under s. 25, as well as the minimum procedural rules in the Statutory Powers Procedure Act, R.S.O. 1990.

In contrast, the Rules of Civil Procedure are rules of court. They are enacted under the authority of the Courts of Justice Act, R.S.O. 1990, c. C.43, with the Civil Rules Committee being given authority to make rules, subject to the approval of the Lieutenant Governor in Council, "for the Court of Appeal and the Superior Court of Justice in relation to the practice and procedure of those courts in all civil proceedings, including family law proceedings." The application of the Rules to the courts is also reflected in Rule 1.02, which provides:

1.02 (1) These rules apply to all civil proceedings in the Court of Appeal and in the Superior Court of Justice, subject to the following exceptions:

They do not apply to proceedings in the Small Claims Court, which are governed by Regulation 201 of the Revised Regulations of Ontario, 1990.

They do not apply to proceedings in the Family Court of the Superior Court of Justice, which are governed by Ontario Regulation 114/99 (Family Law Rules), except as provided in those rules. The Family Court has jurisdiction in the areas listed in the Schedule to this subrule.

They do not apply if a statute provides for a different procedure.

In my view, it is immaterial that dictionary definitions and common usage of "proceeding," the term used in Rule 9.03(3), may be broad enough to include arbitrations. "Proceeding" is defined in the Rules of Civil Procedure and is clearly meant to encompass various types of court processes, whether commenced by application, statement of claim, notice of action, counterclaim, crossclaim, third or subsequent party claim, or divorce petition or counterclaim. It does not extend the court rules to all statutory decision makers involved in any process that can be called a "proceeding." As this is the term used in the Statutory Powers Procedure Act, the consequences of the arbitrator's approach would be startling, with discoveries and other court procedures becoming available in a broad range of non-court proceedings. Nor am I persuaded by the arbitrator's statement that the Rules of Civil Procedure "can and do reach beyond mere court procedure to codify aspects of public policy and the greater judicial role in society." The fact that some steps, such as the approval of settlements in respect of a person under a disability, must be taken in court according to the Rules of Civil Procedure does not suggest that the Rules apply to arbitrations under the Insurance Act. On the contrary, it reinforces that arbitrators have a limited jurisdiction to determine disputes in respect of entitlement to statutory accident benefits and the amount of those benefits, a role that is exercised according to specific procedures different from the Rules of Civil Procedure.

Although I disagree with the arbitrator's conclusion that "proceedings at the Commission are subject to Rule 9.03," that does not mean the Rules are irrelevant. There is every reason to consider court rules and practices in determining appropriate procedures for arbitration. After all, arbitration is meant to provide an alternative to court. This is reflected throughout the Dispute Resolution Practice Code, which provides simpler, streamlined versions of many court practices, with its underlying philosophy articulated in the first three Rules:

1.1 These Rules will be broadly interpreted to produce the quickest, most just, and least expensive resolution of the dispute.

1.2 Where something is not specifically provided for in these Rules, the practice may be decided by referring to similar Rules in this Code.

1.3 A defect in form or other technical breach will not make a proceeding invalid.⁶

It would be an odd result if the more formal, technical court rules could deal with a defect in the form of an originating document, but the purportedly more flexible, user-friendly alternative of arbitration could not. Therefore, it is my view that the arbitrator's authority should be interpreted in this broader context, including Rule 9.03(3), and that the Dispute Resolution Practice Code provides sufficient authority to correct the defect in the original application for arbitration. While a specific rule might have clarified the situation, the Dispute Resolution Practice Code is intentionally less detailed than the Rules of Civil Procedure. Therefore, I am not persuaded that the lack of a specific rule dealing with applications filed on behalf of a deceased person means there is no authority to respond to that application in a manner that produces "the quickest, most just, and least expensive resolution of the dispute."

In reaching this decision, I draw some comfort from the Divisional Court decision in Clancy v. Fransky (1985), 1985 CanLII 2146 (ON HCJ), 52 O.R. (2d) 793. In that case, an action was commenced against three individuals as "Co-administrators of the Estate of Vincent A. Fransky." As it turned out, letters of administration had not been issued to anyone at the time the writ was issued. Subsequently, two of the people named as co-administrators of the estate were appointed administrators of the estate. After the limitation period expired, the defendants asked that the action be dismissed as a nullity. The Court decided to apply Rule 9.03, although that meant giving it retrospective effect, because to do otherwise would have defeated the cause of action on a "mere technicality," which would be contrary to the direction in Rule 1.04(1) that the Rules should be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."

Like Clancy, this case involves an action started before the expiration of the limitation period, with someone eventually obtaining authority to act on behalf of the estate. CGU was aware of the claim and, apart from the delay discussed below, it is difficult to see any real prejudice.

For these reasons, I conclude that this arbitration need not, and should not, be treated as a nullity. However, Leon Bittan, as estate trustee, must confirm forthwith that he is pursuing this arbitration on behalf of his late father's estate and ask that the style of cause be amended to reflect this change.

III. EXPENSES

As noted above, the problem in this case was the lengthy period of uncertainty. CGU had legitimate questions about the status of the application, Mr. Neill's ongoing role, and whether any steps could be taken pending clarification of these issues. In my view, it should not bear the cost of this delay. Therefore, I conclude that if this arbitration proceeds, the estate of the late Jacob Bittan should pay the arbitration expenses incurred by CGU between April 12, 2001 (the date of the first pre-hearing) and November 27, 2001 (the date of the arbitrator's decision). However, this amount need not be paid forthwith, but should be taken into account in any further arbitration order.

My view on appeal expenses is different. By the time CGU filed its appeal, there was a trustee in place. While it raised a valid legal issue on appeal, it was unsuccessful in overturning the outcome of the arbitration. In the circumstances, I conclude that the parties should bear their own appeal expenses.