Neutral Citation: 2003 ONFSCDRS 99

FSCO A02-001305

FINANCIAL SERVICES COMMISSION OF ONTARIO

Before:

Fred Sampliner

Heard:

March 25, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Jadranka Cavrak for Mr. Pinhasov

Gregory Van Berkel for Guarantee Company of North America

Issues:

On October 25, 2001, Guarantee Company of North America ("Guarantee") was ordered to pay Mr. Pinhasov ongoing income replacement benefits under the Schedule,¹ arising out of a January 4, 1996 motor vehicle accident. Mr. Pinhasov's claim concerning the amount of that benefit was unsuccessfully mediated in July/August 2002, and he requested that an arbitrator at the Financial Services Commission of Ontario (FSCO) determine the quantum under authority of the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Guarantee filed a lawsuit in the Ontario Superior Court for determination of Mr. Pinhasov's income replacement benefit, whether it overpaid him and seeking a repayment order. Guarantee asks for a stay of this arbitration proceeding so that the Court may determine these issues.

The preliminary issue is:

1. Should Guarantee be granted a stay of Mr. Pinhasov's arbitration?

Result:

1. Guarantee should not be granted a stay of this arbitration.

EVIDENCE AND ANALYSIS:

Mr. Pinhasov's September 5, 2002 Application for Arbitration was received by this Tribunal on September 10, 2002. Guarantee's Statement of Claim was filed in the Ontario Superior Court on September 6, 2002. Both actions were filed at approximately the same time, but Guarantee argues that this arbitration should be stayed pending the outcome of its lawsuit primarily because it was filed earlier.

The following is a summary of the criteria for judging whether arbitration or court is the most appropriate forum:²

1. Are the issues and relief sought similar?

2. How far along are the actions?

3. What are the impediments to dealing with the issues in court and arbitration?

4. Would duplicate proceedings raise the spectre of inconsistent results, create delay or raise costs?

In the lawsuit, Guarantee asks the court to find that Mr. Pinhasov's income replacement benefit is $2.90 per week and that he be ordered to repay the difference between its $339.05 payments and this sum,³ plus interest on the overpaid amount.⁴ In the arbitration, Mr. Pinhasov seeks a determination that his income replacement benefit is $339.05 per week, that is the weekly rate that Guarantee initially paid him. I find that Guarantee's lawsuit and this arbitration ask an adjudicator to make determinations concerning the same essential issue, the amount of Mr. Pinhasov's income replacement benefit.

The parties advise me that no affidavits of documents have been produced and no discoveries have occurred or been scheduled in the lawsuit. However, there have already been two pre-hearing conferences in this arbitration.⁵ At these conferences, the parties, their representatives and a FSCO arbitrator identified the main and preliminary issues, agreed on the document/information exchanges, and fixed a hearing date for September 22 through 25, 2003.

I find that the arbitration process has advanced more rapidly and efficiently than the lawsuit. I further find that Mr. Pinhasov's claims will face considerable delay if he is forced to proceed in the Court system.

The Court has no jurisdiction to issue a special award, which Mr. Pinhasov claims for unreasonable delay or withholding of his benefits.⁶ Staying this arbitration to await a judge's determination of quantum causes him to face the expense and delay of a second hearing at FSCO on the special award issue. I find that a stay of this arbitration frustrates the goal of avoiding multiple proceedings and speedy access to justice.