Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2004 ONFSCDRS 15

Appeal P02-00035

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ZURICH NORTH AMERICA CANADA

Appellant

and

STEVEN H. STELZER

Respondent

Before:

Nancy Makepeace

Representatives:

Jennifer Guth for Zurich

Kelly Siegner for Mr. Stelzer

Hearing Date:

July 18, 2003, in Ottawa

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 dismissed, and the arbitration order, dated November 20, 2002, is confirmed.

2. If the parties are unable to agree on appeal expenses, they may request a determination of the issue by writing to the Commission within 30 days of this order, as set out in Rule 79.1 of the Dispute Resolution Practice Code.

February 6, 2004

Nancy Makepeace

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal is about the application of issue estoppel (res judicata) in accident benefits adjudication. On August 17, 2000, Arbitrator Miller dismissed Mr. Stelzer’s claim for medical benefits for the period between January 1, 1997 and June 16, 1998.¹ In the decision under appeal, Arbitrator Muir allowed Mr. Stelzer’s claim for medical benefits for the period between June 17, 1998 and October 21, 2001. Zurich North America Canada (“Zurich”) appeals. It claims that Arbitrator Muir erred in rejecting its submission that the doctrine of issue estoppel precluded Mr. Stelzer from pursuing these benefits in a second arbitration. In Zurich’s view, the matter was already decided in the earlier arbitration decision. Zurich also challenges Arbitrator Muir’s analysis with respect to the burden and onus of proof, and the weight given the DAC report.²

For reasons that follow, I am not persuaded the Arbitrator erred.

II. BACKGROUND

Mr. Stelzer was injured in a motor vehicle accident on April 29, 1996. After attending at an accident reporting centre, he went to a hospital because he began to feel ill. He was discharged after a few hours. The next day, he saw his family doctor, Dr. F. Pietrobon, who diagnosed a mild cervical strain. Mr. Stelzer returned to his job as a structural engineer, but took medications and attended physiotherapy for ongoing mid-scapular pain and tightness.

On June 15, 1996, after about six weeks, he stopped working because his symptoms compromised his ability to stoop over or sit at a desk or drafting table for prolonged periods. He received disability and medical-rehabilitation benefits from his personal insurance carrier, and secondarily from Zurich.

On October 18, 1996, Mr. Stelzer was assessed at Zurich’s request by Dr. Douglas Ritter, an orthopaedic surgeon. Dr. Ritter diagnosed thoracic strain, and recommended a stretching and strengthening program, or perhaps physiotherapy or a back education course. He expected that Mr. Stelzer could return to work part time on November 1, 1996, and progress to full time over that month, “with appropriate ergonomics.” Based on Dr. Ritter’s report, Zurich notified

Mr. Stelzer that it would stop his income replacement benefits (“IRBs”) unless he requested a disability DAC assessment. Mr. Stelzer did request a DAC, and accordingly his IRBs were reinstated pursuant to s. 64 of the SABS-1994. However, he returned to work soon afterwards, and his IRBs were terminated on that basis on February 12, 1997. He does not claim additional income replacement benefits.

Mr. Stelzer has been treated since the accident with medication and a number of hands-on therapies, including chiropractic, physiotherapy, massage and acupuncture. He began receiving chiropractic treatment from Dr. Ken Brough in October 1996. Dr. Brough discharged him from active treatment on January 15, 1997, reporting that he had reached maximal medical rehabilitation.

After returning to work, Mr. Stelzer resumed chiropractic treatment in August 1997, this time in Hamilton, where he now lived. His chiropractor, Dr. Heather Norman, also provided occasional therapeutic massage. Mr. Stelzer’s disability carrier paid the first $88 of the $127 treatment fees, and Mr. Stelzer claimed the balance ($39 per treatment) from Zurich in August 1997. Zurich asked for additional information from Dr. Norman. Though the information was never provided, Zurich made a partial payment of $130.97 for chiropractic treatment from June 25, 1997 to December 1, 1997. No payments were made for treatment after December 1, 1997. Mr. Stelzer testified that he submitted additional invoices for chiropractic fees totalling $179.95, but Zurich denied receiving them.

In March 1998, Zurich referred Mr. Stelzer for a Medical-Rehabilitation DAC assessment, as permitted under s. 39 of the SABS-1994. On July 21, 1998, the DAC assessors (a physiatrist, physiotherapist and chiropractor) reported that he had “had a reasonable course of therapy, but without complete resolution of his symptoms.” They concluded that further formal physiotherapy or chiropractic treatment would “offer no benefit.” On the basis of the DAC report, Zurich wrote to Mr. Stelzer on September 10, 1998:

As per the Medical & Rehabilitation D.A.C. no further treatment is reasonable & necessary. Funding of ALL treatment discontinues effective immediately, our file is now closed.

Mr. Stelzer continued to receive chiropractic treatment from Dr. Norman and, after he moved back to Montreal, from Dr. Denise Perron. He applied for mediation of the dispute, and when mediation failed, he applied for arbitration.

The arbitration hearing took place over two days in May 2000. Mr. Stelzer testified, as did Dr. Perron. It was her opinion that Mr. Stelzer needed ongoing chiropractic treatment to maintain his progress, deal with relapses, and stabilize his condition. Arbitrator Miller dismissed the claim. Dr. Perron’s opinion was given little weight because she first saw Mr. Stelzer on April 10, 1998, approximately two years after the accident, and her note on that visit (“back not bad”, “tired, stiff and sore”) did not support the claim. As well, her next note, on November 13, 1998, was silent about Mr. Stelzer’s back, and merely noted that he was seeing a chiropractor in Ontario once a month. The Arbitrator preferred the conclusion of the DAC assessors that further treatment would not offer any benefit. She was not persuaded by Mr. Stelzer’s testimony because she found it was not supported by objective medical evidence.

The parties disagree about the scope of Arbitrator Miller’s decision. Zurich understands it as disposing of any claim for additional medical benefits. Mr. Stelzer relies on the Arbitrator’s statement of the issue at the outset of her decision: “Is Mr. Stelzer entitled to his medical expenses pursuant to subsection 36(1) of the Schedule for the period of January 1, 1997 to June 16, 1998?” The Arbitrator repeated this formula in summarizing the result: “Mr. Stelzer is not entitled [to] his medical expenses for the period of January 1, 1997 to June 16, 1998.” She refused to consider Dr. Perron’s evidence about Mr. Stelzer’s flare-ups in late 1998 and beyond:

While her [Dr. Perron’s] notes indicate that Mr. Stelzer suffered some flare up of back pain after November 1998 and in 1999 the treatment expenses for these flare ups were not submitted to Zurich and are not the subject of this arbitration.³

Arbitrator Miller released her decision on August 17, 2000. Mr. Stelzer continued to claim medical and rehabilitation benefits for chiropractic and other forms of therapy. In October 2001, a second mediation was held to discuss chiropractic, acupuncture, osteopathic, massage and prescription expenses for the period between June 17, 1998 and October 2, 2001. Mediation failed to resolve the dispute, but Zurich paid $2,679.54 towards Mr. Stelzer’s chiropractic expenses on a without prejudice basis.⁴ Mr. Stelzer applied for arbitration in December 2001, claiming the remaining half of the outstanding expenses ($2,679.53) and ongoing chiropractic expenses, as well as interest and a special award.

In its Response to Arbitration, Zurich relied on the Med-Rehab DAC report, dated July 21, 1998, and its Explanation of Assessment, dated September 10, 1998. It submitted that the application for mediation filed on April 30, 2001 was barred by the two-year limitation period set out in s. 281(5) of the Insurance Act and s. 72 of the SABS-1994. The arbitration pre-hearing was held in May 2002. The pre-hearing letter described the issues in dispute as set out in Mr. Stelzer’s application, but did not refer to any preliminary issues.

Arbitrator Muir heard the case on September 10, 2002. It appears the time limits issue was not pursued, but Zurich raised the issue estoppel argument at the outset of the hearing:

Although not raised as a preliminary issue, Zurich indicated at the outset that it would be relying upon this prior decision in objecting to the introduction of any evidence that was, or ought to have been introduced in the prior hearing. In Zurich’s submissions, the issue between the parties was res judicata. Although relying on the rule, res judicata, Zurich did not take the position that Mr. Stelzer could not proceed to arbitration at all, but that he must show that there was some changed circumstance since the prior arbitration. In making this submission Zurich relied upon cases dealing with the introduction of new evidence on an appeal.

At the hearing, I allowed Mr. Stelzer to introduce any evidence relevant to the treatments in issue during the period June 17, 1998 to October 21, 2001. In making this ruling I expressed some doubt that res judicata operated to exclude evidence in the way that Zurich was proposing. However, as part of my oral ruling on this issue, Zurich was invited to make any further submissions on the issue at the conclusion of the case.

Arbitrator Muir referred to the description of res judicata by Director’s Delegate McMahon in Saliba and Allstate Insurance Company of Canada and Progressive Casualty Insurance Company of Canada, (FSCO P00-00052, July 19, 2002):

The common law plea of res judicata can take two forms: cause of action estoppel, and issue estoppel. In the first, the defendant seeks to strike the action on the basis that it has already been adjudicated. In the second, the defendant concedes that the subsequent action is different, but maintains that a crucial issue common to both proceedings has already been determined, and cannot be revisited in the second proceeding. See Angle v. Canada (Minister of National Revenue), 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248. .

The three requirements for a plea of issue estoppel are: (1) the same question has been decided; (2) the decision giving rise to the estoppel was final; and (3) the parties or their privies are the same as the parties to the first decision. See Angle v. Canada, supra. . .⁵

Arbitrator Muir then stated that since res judicata is a rule of evidence, he was “not bound to apply it, but may, when it appears appropriate and just to do so.”⁶ He concluded it was not appropriate to do so in this case. “Two of the three elements necessary for proper application of the rule” were present – the parties were the same in both arbitrations, and Arbitrator Miller’s decision was final – but the issues were not the same, since the two proceedings related to different periods of time:

It may be that in one period of time a claim may be found to be not reasonable and then in another period, the same treatment could be reasonable. . .⁷

In Zurich’s view, the issue in the first arbitration was Mr. Stelzer’s entitlement to medical benefits, without restriction to the type of benefit or the period of the claim. The Arbitrator rejected this approach, noting that Arbitrator Miller did not rule out the possibility that Mr. Stelzer could claim other benefits in the future. In fact, she “specifically discount[ed] much of the medical evidence of Dr. Perron, . . . because it related to treatment beyond the period for which the claims before her had been made.”⁸

The Arbitrator gave another, more fundamental reason for dismissing the res judicata argument:

Res judicata is an awkward fit when applied to an issue such as entitlement to a medical rehabilitation benefit which can arise at any time. A prior adjudication in respect of an earlier period of time has, in fact, little or no bearing if the evidence is that the subsequent treatment was reasonable. The difficulty in applying a rule like res judicata may be more pronounced where the prior determination is not based on an assessment of the validity of the underlying issue, but where, as here, the claim is dismissed on the basis of a failure to meet an evidentiary onus. This awkwardness in applying the rule would, if I am wrong in my conclusion that the rule does not apply here, lead me to not apply it to these circumstances as a matter of discretion.⁹

After considering the evidence, including oral evidence from Mr. Stelzer and Dr. Pietrobon and updated expert reports from Dr. Barry Gamberg (a family doctor who treated Mr. Stelzer in Montreal) and chiropractors Brough and Perron, Arbitrator Muir concluded that Mr. Stelzer was entitled to the medical benefits he claimed, except for the prescription expenses, plus interest under s. 46(2). However, since little evidence was presented as to the actual expenses claimed, the Arbitrator left it to the parties to work out the amounts, or to contact him if unable to agree. He deferred a finding on arbitration expenses pending a final decision on the amount owing.

Zurich submits that the Arbitrator erred in law by rejecting its res judicata argument, and alternatively, that he erred in law by failing to give the DAC adequate weight and by finding that Mr. Stelzer was entitled to benefits because he had made a prima facie case that was not rebutted by Zurich.

III. ANALYSIS

A. Issue Estoppel

(i) Introduction

Zurich’s appeal raises an important issue: in an accident benefits scheme that contemplates multiple claims for medical benefits, what is the effect of an arbitrator’s dismissal of a claim on future applications for arbitration?

I am not persuaded that Arbitrator Muir erred in rejecting Zurich’s issue estoppel argument. Like the Arbitrator, I find that Arbitrator Miller decided the case on the narrow basis that Mr. Stelzer did not prove his entitlement to the specific medical benefits claimed – Dr. Norman’s chiropractic fees between January 1, 1996 and June 16, 1998. She did not decide the underlying issues (impairment, causation, the need for treatment generally) so as to dispose of Mr. Stelzer’s rights with respect to other medical benefits or other periods of time.

Further, I agree with Arbitrator Muir’s suggestion that discretion is required in applying the doctrine of issue estoppel to accident benefits adjudication. Even if the preconditions for issue estoppel were satisfied, I find that public policy considerations supported the Arbitrator’s exercise of his discretion not to apply issue estoppel in this case. Nor am I satisfied that the arbitration before Arbitrator Muir should have been barred as an abuse of process.

My detailed reasons follow.

(ii) Issue Estoppel at Common Law

Issue estoppel is a common law rule that prevents a party from relitigating an issue that was already decided.¹⁰ It protects the defendant/respondent from having to answer the same case more than once, reduces the risk of inconsistent results, promotes finality in litigation, preserves judicial resources, and enhances confidence in the judicial process. These public policy objectives must be balanced against the fundamental public policy objective of ensuring access to justice. Accordingly, the party relying on the rule must establish that it applies; otherwise the plaintiff/applicant will not be deprived of his or her day in court. Although the elements of the doctrine are well established, there has been a great deal of litigation about its application.

There is no dispute, in this case, that the parties were the same in both arbitration proceedings, and that Arbirator Miller’s decision was a final¹¹ judicial¹² decision. Whether Arbitrator Miller decided issues that were fundamental to the issues before Arbitrator Muir is the main focus of the dispute. As Justice Dickson stated in Angle v. MNR, the leading Canadian decision on issue estoppel:

It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment. . . . The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceedings: per Lord Shaw in Hoystead v. Commissioner of Taxation [1925 CanLII 607 (UK JCPC), [1926] A.C. 155.]. The authors of Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed. pp. 181, 182, quoted by Megarry J. in Spens v. I.R.C. [[1970] 3 All E.R. 295.], at p. 301, set forth in these words the nature of the enquiry which must be made:

. . . whether the determination on which it is sought to found the estoppel is “so fundamental” to the substantive decision that the latter cannot stand without the former. Nothing less than this will do.

The Supreme Court of Canada restated the test in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460:

the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings.¹³

Policy considerations have assumed a more important role in recent issue estoppel cases. For example, in Downtown Eatery (1993) Ltd. v. Ontario, Borins and MacPherson JJ.A., writing also on behalf of McMurtry, C.J.O. , described as “particularly valuable,” Justice Laskin’s description of the underlying purpose of issue estoppel in Minott v. O’Shanter Development Co., (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321, a leading decision of the Ontario Court of Appeal:

Issue estoppel is a rule of public policy, and, as a rule of public policy, it seeks to balance the public interest in the finality of litigation with the private interest in achieving justice between litigants. Sometimes these two interests will be in conflict, or, at least there will be tension between them. Judicial discretion is required to achieve practical justice without undermining the principles on which issue estoppel is founded. Issue estoppel should be applied flexibly where an unyielding application of it would be unfair to a party who is precluded from relitigating an issue.¹⁴

Danyluk v. Ainsworth Technologies may be seen as the culmination of this trend towards a contextual analysis of issue estoppel. The effect of procedural deficiencies was the main issue in that case. The Employment Standards Officer who refused the plaintiff’s claim for $300,000 in unpaid wages and commissions (and ordered only that the employer pay her two weeks’ pay in lieu of notice), received submissions from the employer which she did not provide to the employee for response. On the employer’s motion, the employee’s law suit was struck out on the basis of issue estoppel. The Ontario Court of Appeal upheld the estoppel finding, stating that the Officer’s unfairness did not defeat the employer’s estoppel argument. The Officer was under a duty to act judicially, and internal appeal procedures provided the remedy, if she failed to do so. The employee should not be permitted to engage in a “collateral attack” on the decision.¹⁵ The Supreme Court of Canada agreed on the need to avoid collateral attack, but allowed the appeal on the basis that the unfairness of the process required estoppel to be rejected as a matter of discretion.

After concluding that “the preconditions to issue estoppel” (a final judicial decision, same parties, same issue) were met, Justice Binnie asserted, “[t]here is no doubt” there is authority to refuse to apply estoppel as a matter of discretion. Further,

. . . the discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision makers. (para. 62)

Binnie J. considered seven factors he found relevant to the exercise of discretion in this case: the wording of the Employment Standards Act, which suggested the legislature did not intend the administrative process to be the exclusive forum for employees; the purpose of the legislation, including the appropriateness of the informal procedures provided for resolving Ms. Danyluk’s substantial claim;¹⁶ the availability of an appeal (there was a discretionary review, but no appeal as of right); the procedural safeguards in the administrative process;¹⁷ the expertise of the decision maker, who was not legally trained, but was “asked to decide a potentially complex issue of contract law” (para. 77); the circumstances giving rise to the prior administrative proceedings, namely the employee’s vulnerability at the time of making an important decision about forum; and, finally, the potential for injustice:

As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice. . . .Whatever the appellant’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated. (para. 80)

Justice Binnie also noted that the list of factors is open:

The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case. (para. 67)

I apply the same contextual approach in considering whether Arbitrator Muir erred in this case.

(i) Issue Estoppel and Accident Benefits Arbitration

The Courts have, on several occasions, considered whether a decision of an arbitrator estops a party from pursuing civil proceedings. The doctrine of issue estoppel has been applied cautiously in these accident benefits cases, as it was in the Danyluk line of wrongful dismissal decisions. Machin v. Tomlinson was typical.¹⁸ Mr. Machin applied for accident benefits on a first-party basis, and sued the at-fault driver. As Arbitrator, I dismissed his claim for accident benefits on the basis that any disability resulted from pre-existing conditions unrelated to the accident. On a motion in the tort action, the third-party insurer relied on the arbitration decision to foreclose Mr. Machin’s damages claim. Justice Archibald allowed the issue estoppel motion, but his order was reversed by the Court of Appeal (Weiler J.A., for Finlayson and Goudge JJ.A.) on the basis that the two proceedings did not involve the same parties or their privies. The Court started its analysis by considering the statutory scheme:

10The arbitration option for resolving claims for statutory accident benefits contemplates that SABs taken to arbitration be adjudicated quickly, inexpensively and summarily. . . .

11Caution must be exercised when deciding whether to apply the common law remedy of issue estoppel to a statutory arbitration. Issue estoppel is a common law rule of public policy that balances the right of a plaintiff to litigate an issue against the court’s concern as to duplication of process, use of its limited facilities, concern for conflicting findings of fact, and for achieving justice between the litigants. Rasanen v. Rosemount Investments Ltd. (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 at 289 (C.A.) per Carthy J.A. concurring in the result; Minott v. O’Shanter Development Company Ltd. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 at 340. However, these same policy concerns underlining issue estoppel do not appear to apply to the situation in which the Legislature has specifically provided claimants with the option of having their dispute resolved under arbitration or through a court action.

12Additionally, the Legislature, if it desired, could have specified that the arbitrator’s findings of facts are final and binding on the claimant in any subsequent proceeding. It did not do so. . . . There is nothing in the scheme of the Act or in its individual provisions that suggests that the findings by an arbitrator in the claimant’s dispute concerning entitlement to SABs are intended to be binding in the claimant’s subsequent tort action for damages against the tortfeasor. . . .

13Moreover, injecting issue estoppel into the arbitration proceedings concerning SABs would greatly raise the stakes, would lead to third parties seeking to make representations to the arbitrator and would needlessly complicate and prolong the proceedings. To make such a finding may also result in few, or fewer, applicants proceeding to arbitration hearings. In the result, the purpose of the arbitration option contemplated by the Legislature would be undermined. For these reasons, I find that the statutory scheme of the Act does not support a finding that issue estoppel apply to facts such as are before this court.¹⁹

The adjudicative context is different in this case. Both decisions were made by arbitrators whose procedural and remedial authority arose from the Insurance Act, the Statutory Powers Procedure Act, and the rules and regulations made under those statutes. However, there are similar reasons for caution in applying issue estoppel to serial arbitration applications. If an adverse ruling on an arbitration about a medical benefits claim estops the insured person from commencing any new arbitration about medical benefits (or medical benefits of the same type), the effect will be to expand the scope of arbitration proceedings and encourage the parties to delay dispute resolution until all potential medical benefits disputes are ripe for adjudication. Both consequences are contrary to the legislative objective of speedy, cost-effective, and (where possible) mediated dispute resolution. Moreover, not only are serial arbitration applications not prohibited; they are implicitly contemplated by the SABS and the Act.

Whereas the remedy in a successful civil action is usually a “one-time-only” award that includes several heads of damages, a successful application for arbitration results in an order for the payment of defined benefits relating to a certain period of time. Though parties are encouraged to bring all their disputes to dispute resolution, and issue-splitting is strongly discouraged, it is not uncommon for an insured person to commence a second arbitration about a new issue that arose after an initial arbitration. This follows inevitably from the nature of the accident benefits scheme.

Procedurally, too, the claims adjustment and dispute resolution framework is time sensitive. This is especially the case with medical and rehabilitation benefits.²⁰ They are intended to be based on an insured person’s documented needs at the time the claim is made, not long-term care needs. A broad range of goods and services is provided under Part VII (medical benefits) and Part VIII (rehabilitation benefits), and accident victims typically need different benefits at different stages of treatment and rehabilitation.

The claims adjustment process mandated by the SABS-1994 contemplates multiple applications for payment of specific medical and rehabilitation expenses. For example, s. 37(1) allows the insurer to “require a person claiming payment of an expense under section 36 to furnish a certificate from the person’s health practitioner stating that the expense is reasonable and is necessary for the person’s treatment” [emphasis added]. Under s. 37(2), where the expense is “of a continuing nature, the insurer may require a certificate . . . as often as reasonably necessary.” A benefit that is payable must be paid within 14 days of the insurer receiving the application; otherwise, the insurer must give notice of the reasons for refusing within the same time period (s. 39.1).

The next step, if the insurer disputes the claim, is a DAC assessment, authorized under s. 39 – “If the insurer receives a certificate under section 37 in respect of an expense, the insurer may give the insured person a notice requiring the insured person to be assessed under this section” [emphasis added]. The insurer must notify the DAC within 15 days, and the DAC must “promptly” notify the insured person and arrange for the assessment.”²¹ The parties are bound by the conclusion of the DAC assessors, pending resolution of the dispute.²² These rules promote early access to treatment and rehabilitation and encourage the parties to resolve disputes about medical and rehabilitation expenses on a specific claim-by-claim basis.²³

The specific and time-sensitive nature of medical and rehabilitation benefit claims has led to a number of issues. Delegate McMahon dealt with one such question in Mostajo and Wawanesa Mutual Insurance Company, (FSCO P01-00011, October 25, 2002), a decision under the SABS-1996. The Arbitrator had awarded Ms. Mostajo the benefits described in the two treatment plans she submitted to the insurer, but dismissed her claim for further benefits related to ongoing treatment from the same treatment providers. Ms. Mostajo explained that she did not submit additional treatment plans because the insurer denied “all treatment” in accordance with the DAC report.

The Delegate dismissed Ms. Mostajo’s appeal. He noted that the details required on the prescribed form suggest an insured person must submit another application for additional treatment that represents a significant revision or extension of the initial treatment plan, though he recognized that “some latitude is necessary,” since treatment plans are prospective in nature and give an “estimate” of the treatment required. Mostajo concerned the more detailed application and adjustment process set out in the SABS-1996, but Delegate McMahon’s reasoning also applies to the SABS-1990 and SABS-1994. It reaffirms that claims for specific medical and rehabilitation expenses are to be adjusted individually as they arise.

Delegate McMahon dealt with a different issue in Saliba and Allstate Insurance Company of Canada and Progressive Casualty Insurance Company of Canada. The insured person suffered whiplash injuries in two accidents a few months apart. Five years later, a cervical laminectomy that was intended to relieve compression on his spinal cord rendered him a partial quadiplegic. The first arbitration concerned Mr. Saliba’s claim for ongoing income replacement benefits, and the main issue was causation. Arbitrator Alves allowed the claim, and ruled on each insurer’s obligation to pay. She held that Allstate must pay the IRBs resulting from its accident (the first), and that Progressive must pay the IRBs following the second accident, but could deduct Allstate’s benefits pursuant to s. 12(4)(b) of the SABS-1990.

The second arbitration concerned medical, rehabilitation and attendant care benefits. It also raised the question about the insurers’ respective obligations. Arbitrator Wilson held that the issue had been decided in the first decision, and therefore Progressive need only pay excess benefits after the limits of Allstate’s policy were exhausted. He relied on s. 9(1) of the SABS-1990.

Allstate appealed the second decision. Delegate McMahon held that the Arbitrator erred by finding that the “apportionment” of payments between the insurers had been decided in the first decision.²⁴ Although Arbitrator “lves had made some general statements about the apportionment of Mr. Saliba’s Abenefits,” without specifying the nature of the benefits at issue, context made it clear she ruled only on income replacement benefits. Delegate McMahon noted “there is no single provision that governs the deduction of collateral benefits” (p. 11). Further, he concluded the factual underpinnings of the two decisions were not the same. Allstate was paying IRBs at the time of the second accident, but the significant medical, rehabilitation and attendant care benefits that were the subject of the second decision arose only after the second accident. “A similar question is not sufficient to found a plea of res judicata” (p. 10).

(ii) Conclusion

This appeal would probably not have come about if the arbitration orders were reversed – if Arbitrator Miller had allowed Mr. Stelzer’s earlier claims for chiropractic treatment from January 1, 1997 to June 16, 1998, and Arbitrator Muir denied his claims for chiropractic and other medical expenses from June 17, 1998 to October 21, 2001. An insurer’s payment of a medical expense does not generally prevent it from later disputing claims for additional medical benefits. Similarly, I am aware of no authority for the proposition that an arbitrator’s order for payment of a medical expense gives rise to issue estoppel with respect to future medical benefits claims. Section 287 of the Act prevents an insurer from reducing benefits after an arbitrator’s order for payment of benefits, but its application to an order for payment of specific medical expenses is unclear.²⁵

I accept Zurich’s submission that there was a significant overlap in the evidence considered by Arbitrators Miller and Muir, and that both Arbitrators considered evidence pertaining to both claims. This is not sufficient, however, to give rise to issue estoppel.

Arbitrator Muir considered medical evidence that pre-dated the claims period he was considering (June 17, 1998 - October 2, 2001), including Dr. Pietrobon’s notes and reports of November 1996, Dr. Gillen’s October 1996 report, Dr. Brough’s reports of October 1996 and February 1997, and Dr. Ritter’s October 1996 report. It would have been very odd if he had not done so. What makes Zurich’s position plausible, in this appeal, is the common sense observation that accident victims generally need more treatment in the initial post-accident period than they do later on, unless there is some change of circumstances – for example, a flare-up of symptoms, a deterioration in the insured person’s condition, a return to work or a move to a more demanding job. That is why arbitrators generally include a chronological review of the medical evidence in their reasons, including evidence that pre-dates the period in dispute.

At first blush, it may seem more surprising that Arbitrator Miller considered evidence that post-dated the claims period she was considering (January 1, 1997 - June 16, 1998) – namely the July 21,1998 report of the Med-Rehab DAC, a note from Dr. Gamberg, dated December 4, 1998, Dr. Perron’s notes from late 1998 and 1999, and her report of March 16, 1999.²⁶ However, the DAC assessment was requested in March 1998, within the claims period, and it considered the expenses at issue before Arbitrator Miller. This was important evidence about those claims, despite the fact the assessment was conducted about six weeks into the subsequent claims period. Dr. Gamberg and Dr. Perron treated Mr. Stelzer in both periods of time. In any event, the Arbitrator mentioned Dr. Gamberg in the “Evidence” section of her decision, but not in the “Analysis and Findings” section, and she mentioned Dr. Perron’s evidence only to discount it because Dr. Perron started seeing Mr. Stelzer in April 1998. Moreover, arbitrators often refer to medical evidence that post-dates the claims period if it is relevant to the period in dispute – for example, by offering a new diagnosis or making new treatment recommendations that cast light on the insured person’s situation during the claims period. Again, common sense calls for consideration of all relevant information without imposing arbitrary date restrictions.

In this case, there is no obvious explanation for the different arbitral treatment of Mr. Stelzer’s medical benefit claims, which were temporally contiguous. If all Mr. Stelzer’s medical benefits claims over both benefit periods had been put to Arbitrator Miller, it is difficult to imagine she would have reached the same conclusion about the period at issue before Arbitrator Muir. The conflicting decisions in this case demonstrate the wisdom of avoiding fragmented adjudication, an issue to which I will return in my discussion of abuse of process. However, I am not persuaded the issues before Arbitrator Muir were res judicata, for the same two reasons he gave.

First, Arbitrator Miller made her decision on very narrow grounds: she concluded Mr. Stelzer had not discharged his burden of proving entitlement to the benefits he claimed. Elsewhere, she gave an even narrower basis for her decision: she could accept that Mr. Stelzer may have had a flare-up after his return to work, but he had “not provided any medical evidence that the treatment he received during the period he is claiming his expenses was reasonable and necessary” (p. 10). Neither finding is inconsistent with Arbitrator Muir’s findings.

Zurich argues that “onus is always in issue.” This is true in the sense that the burden of proof always rests with the insured person to prove entitlement on a balance of probabilities, but the issue only arises if the case cannot be decided on the evidence.²⁷ Arbitrator Miller did not rule against Mr. Stelzer on the underlying issues. She did not dismiss his claim that he sustained an impairment as a result of the accident, that it affected his ability to work, or that he needed treatment for it. She did not make a finding about his credibility, or about the cost of the treatment he claimed. She specifically limited her decision to a specific claim for medical benefits for a specific time. Arbitrator Muir dealt with a broader range of treatments, given by different practitioners. A broader decision by Arbitrator Miller might have led to a different result in this appeal.

The second reason for dismissing the appeal is that overlapping evidence is neither necessary nor sufficient for issue estoppel, which requires identity of underlying issues. If Zurich is right in this appeal, it matters not whether Mr. Stelzer has suffered a deterioration or a flare-up, brings new medical evidence, or needs new treatment because of changed circumstances. And the estoppel would just as readily apply if the claims periods were separated by five years, rather than being contiguous. If Zurich is right, Arbitrator Miller’s decision disposes of all Mr. Stelzer’s chiropractic claims – and perhaps other medical benefits claims or claims for other types of benefits, as well – subject only to appeal, variation/revocation and judicial review. For the reasons given above, I am not persuaded that is what the legislature intended.

I agree with Arbitrator Muir that issue estoppel makes “an awkward fit” in accident benefits adjudication, especially with respect to medical and rehabilitation benefits. I am not persuaded there is sufficient identity of issues to give rise to estoppel in this case. I conclude, therefore, that the Arbitrator did not err in finding Mr. Stelzer was not estopped from proceeding. In any event, even if the preconditions to estoppel were satisfied, I find the Arbitrator acted within his authority in exercising his discretion to refuse to apply the doctrine in these circumstances.

B. Abuse of Process

Zurich’s appeal can also be framed in abuse of process terms. The doctrine of abuse of process is related to the doctrine of issue estoppel, but does not require that the three preconditions for issue estoppel be satisfied. For example, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, released together with Ontario v. O.P.S.E.U., 2003 SCC 64, the Supreme Court of Canada held that abuse of process prevented two persons convicted of sexual assault on persons under their care from “relitigating” their convictions through the grievance arbitration process. Because the parties were different in the criminal and labour proceedings, issue estoppel did not apply. The Court reaffirmed previous Canadian authority rejecting the doctrine of “non-mutual issue estoppel,” as it is applied in American law. Justice Arbour, writing for the majority,²⁸ explained the relationship between issue estoppel and abuse of process:

. . . I am of the view that abuse of process is the most appropriate doctrine to resolve these cases. The main concern in this appeal does not relate to the technical requirements of mutuality, but to the broader question of the integrity of the judicial adjudicative function. Although both doctrines promote the better administration of justice, issue estoppel is a more appropriate doctrine to use when the focus is primarily on the interests of litigants. Abuse of process, on the other hand, transcends the interests of litigants and focuses on the integrity of the entire system. When an attempt is made to relitigate a criminal conviction, the doctrine of abuse of process provides the better line of enquiry. (para. 12)

Abuse of process applies “where allowing the litigation to proceed would . . . violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.”²⁹

Concurrent arbitration and court proceedings also raise concerns about abuse of process. Though s. 281(1) of the Insurance Act gives insured persons the right to sue or commence arbitration for accident benefits,³⁰ arbitrators are authorized to control their process and mandated to do so.³¹ The long and complicated history of the “concurrent proceedings” cases reflects the difficulty of balancing the insured person’s statutory right of election and the common law principle that multiple proceedings should, where possible, be avoided.

The issue was thoroughly reviewed in Mangat and Non-Marine Underwriters, Mbrs. of Lloyd’s, (FSCO P00-00020, August 1, 2000), in which the insured person commenced arbitration and civil proceedings about overlapping issues on consecutive days. Delegate Draper rejected Mr. Mangat’s argument that he was entitled to use both forums, so long as he did not pursue the same head of benefits or damages in both:

Section 281 of the Insurance Act gives the insured person a choice of forum. It does not follow, however, that he or she has an unfettered election with respect to each claim. Looking back at the procedures in the Insurance Act, mediation is a mandatory first step. If the issues in dispute are not resolved, the insured person can Abring a proceeding in a court of competent jurisdiction” or “refer the issues in dispute to an arbitrator.” [footnote omitted] This involves an election. When a mediation fails on a number of issues, the insured person clearly cannot go to both forums claiming the same benefits. In my view, it goes beyond that. Because the election is with respect to “the issues in dispute,” the insured person is not entitled to take some issues to court and others to arbitration.

The more difficult question, as here, involves subsequent claims. It is inherent in this system that insured persons will submit claims at different times. As a result, insurers will often make a series of decisions that can be mediated and, indeed, must be mediated if they are to be taken further. [footnote omitted] If mediation is unsuccessful, the question is whether the insured person’s ability to choose arbitration is restricted by his or her previous election to go to court.

I accept that an election to go to court does not necessarily govern all future claims. The later issues may be sufficiently distinct, or the timing so problematic, that it would be unnecessary or unfair to insist that they be brought in the court action. It is not enough, however, to simply ask whether the new claim involves a different benefit.

Instead, what was required was a “pragmatic balancing of interests,” based on the factors identified in previous authorities, including which proceeding began first, who has the burden of proof in each proceeding, which is the more comprehensive, the stage of each proceeding, and whether allowing the arbitration to proceed will lead to duplication of proceedings, greater costs and delays, or risk inconsistent findings.³² Director Draper concluded that the Arbitrator erred in failing “to go beyond the benefit-category approach:”

She simply found that the supplementary medical and rehabilitation benefits claimed in the court proceeding were different from the ones claimed in arbitration. By stopping there, she ignored the substantial overlap between the two proceedings.

However, the criteria set out in the cases “must be applied against the backdrop of the insured person’s right to choose arbitration.”³³

In my view, where an arbitrator has already ruled, the same “pragmatic balancing of interests” is appropriate in determining whether an insured person’s new application for arbitration amounts to an abuse of process.

In this case, it appears that Arbitrator Miller defined her issues narrowly because Mr. Stelzer stopped submitting expense claims after he was refused payment. Nothing in her decision suggests Zurich objected, and Zurich does not claim that it did.³⁴ The timing of events is also significant.³⁵ Arbitrator Miller released her decision on August 17, 2000. Mr. Stelzer then commenced his second mediation, which was conducted between August and October 2001. The Report of Mediator, dated October 9, 2001, defined the issues in dispute in terms of the period from June 17, 1998 to October 2, 2001. The same issue definition is found in the Application for Arbitration. Zurich’s Response to Arbitration identified a time limit issue, but did not refer to issue estoppel. The pre-hearing letter mentioned no preliminary issues, and defined the benefits issue in terms of the specific claims period. It appears that Zurich did not raise its estoppel argument until the outset of the hearing before Arbitrator Muir.³⁶ In this context, there is no reason to believe that Mr. Stelzer made a tactical decision to fragment his case, or to limit the issues to be placed before either Arbitrator, or that Zurich was treated unfairly. The way this case unfolded was not ideal, but I am not persuaded the arbitration before Arbitrator Muir was an abuse of the Commission’s process.

C. Burden and Standard of Proof

Zurich submits that the Arbitrator erred with respect to the burden and standard of proof. The Arbitrator stated the law correctly when he said, “[t]he burden of proof rests with the applicant to prove, on a balance of probabilities, that the medical expense claimed is reasonable.” (p. 15). However, the discussion that followed led to this ground of appeal:

Mr. Stelzer’s position is that unless he receives regular ongoing treatments he would suffer relapses which interfere with his ability to work.

I accept Mr. Stelzer’s position to a considerable degree. I find that he suffered injuries in the motor vehicle accident in April 1996 – there is no dispute about this. I also find that he continues to suffer some pain from those injuries that continue to affect him – in this regard, I accept his evidence and again, there is no evidence contradicting him. I also find that the treatment regime that he has chosen helps him to control that pain. Finally, I find that Mr. Stelzer is improving to some degree, but as of the Fall of 2001 he still needed treatment to control his symptoms which could limit his ability to function effectively in his work.

I also accept the limited medical evidence offered by Mr. Stelzer that tends to support his view that treatment is necessary for him to continue to function at his work.

In short, the evidence tendered by Mr. Stelzer is sufficient to establish a prima facie case of entitlement to some medical treatments pursuant to section 36 of the Schedule.

The evidence contrary to Mr. Stelzer’s position is also limited. . . . (pp. 15-16, emphasis added)

There is no question the insured person bears the ultimate burden of proving entitlement to the benefits claimed. However, the tactical burden of proof may shift back between the parties as the case unfolds. This is not a technical point, but one that makes practical sense. In presenting its case, each party tries to answer the apparent strengths and weaknesses of the opposing party’s case.

In this case, the medical evidence was sparse and of limited quality on both sides. Ultimately, the Arbitrator preferred Mr. Stelzer’s evidence that he needed medical and rehabilitation benefits to control his symptoms as he returned to work. This was a judgment call that was within his authority. I am not satisfied that it reflects any error with respect to the burden and standard of proof.

D. The Weight Given the DAC Report

Zurich submits that the Arbitrator gave insufficient weight to the DAC report, which he found to be of “limited value” (p. 16).

FSCO adjudicators have achieved substantial consensus about the evidentiary role of DAC reports. I restated the principles most recently in Driver and Traders General Insurance Company, another appeal about medical benefits:³⁷

. . . a DAC is “not simply another insurer examination.”³⁸ The SABS-1996 gives DACs a pivotal role. Subsection 38(14) expressly states that an insurer may rely on a “negative” DAC report to refuse payment pending resolution of the dispute (and must pay benefits in accordance with a “positive” DAC report):

(14). Subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act,

(a) if a report from the designated assessment centre states that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person’s treatment or rehabilitation, the insurer shall pay for the expense;

(b) if a report from the designated assessment centre does not state that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person’s treatment or rehabilitation, the insurer is not required to pay for the expense.

At arbitration, either party may dispute the opinion of the DAC assessors. The DAC report is not determinative of entitlement, but must be considered by the arbitrator along with all the other evidence. Like all expert reports, the DAC report is assessed as to its accuracy, completeness, relevance, expertise and impartiality.³⁹. . .

The Arbitrator gave the DAC report little weight because it failed to address Mr. Stelzer’s claim that he needed the treatment to control his pain and sustain his ability to work, while accepting that he continued to have intermittent pain as a result of the accident.⁴⁰ This was a valid consideration, well within his adjudicative discretion, and consistent with the case law about entitlement to palliative treatment.⁴¹ I find no error of law.

IV. APPEAL EXPENSES

If the parties are unable to agree on appeal expenses, they may request a determination of this issue by writing to the Commission within 30 days of this order, as set out in Rule 79.1 of the Dispute Resolution Practice Code.

February 6, 2004

Nancy Makepeace

Director’s Delegate

Date

When a question is litigated, the judgment of the court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.

A judicial decision, otherwise final, is not the less so because it is appealable. If it is incapable of revision by the court which pronounced it, it is final in that court, which is all that is required to be shown, and it is wholly immaterial that it is capable of being rescinded or varied by some other court invested with competent jurisdiction in that behalf.

An insurer shall not, after an order of the Director or of an arbitrator appointed by the Director, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 [appeal] or 284 [variation].

Footnotes

1. 1Stelzer and Zurich Insurance Company, (FSCO A99-000170, August 17, 2000).
2. 2The role of medical-rehabilitation designated assessment centres is prescribed in sections 38 and 39 of the SABS-1994.
3. 3Mr. Stelzer testified that he stopped submitting expense claims to Zurich after he was refused payment. [footnote in original]
4. 4Report of Mediator, October 9, 2001.
5. 5Arbitration decision, p. 3 and 4, quoting from Saliba and Allstate and Progressive, at p. 10.
6. 6Arbitration decision, p. 4. See s. 15(1) of the Statutory Powers Procedure Act.
7. 7Arbitration decision, p. 5.
8. 8Arbitration decision, p. 6.
9. 9Arbitration decision, p. 7.
10. 10A classic statement is that of Middleton J. in McIntosh v. Parent, 1924 CanLII 401 (ON SCAD), [1924] 4 D.L.R. 420 (Ont.C.A.), at p. 422:
11. 11The much-quoted test for finality is as set out in G. Spencer Bower and A.K. Turner, The Doctrine of Res Judicata, 2nd ed. (London: Butterworths, 1969), at p. 143:
12. 12A decision of an administrative tribunal is sufficiently judicial in nature to give rise to issue estoppel if the requirements of procedural fairness were satisfied. For example, see Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267, 112 D.L.R. (4th) 683 (Ont.C.A.), leave to appeal to the Supreme Court of Canada refused, [1994] S.C.C.A. No. 152, and Danyluk v. Ainsworth Technologies Inc.2001 SCC 44, [2001] 2 S.C.R. 460. The courts have accepted that the Commission’s arbitration proceedings are judicial in nature: Machin v. Tomlinson, 1999 CanLII 19938 (ON SC), [1999] O.J. No. 5062, reversed on the basis of non-mutuality of issues without reference to the “final judicial decision” requirement, 2000 CanLII 16945 (ON CA), [2000] O.J. No. 4338, 53 O.R. (3d) 566. Similarly, see Robertson v. Gamble, (1997), 1997 CanLII 12136 (ON CTGD), 33 O.R. (3d) 461 (Ont.Gen.Div.). In Budd v. Paterson (2002), 2002 CanLII 37032 (ON CA), 62 O.R. (3d) 715 (Ont.C.A.), Weiler J.A., writing for the appeal court, reversed Justice Nordheimer’s decision on the basis of non-mutuality of issues and parties, without commenting on his findings as to the judicial nature of the Commission’s process.
13. 13At pp. 476-477. See also the discussion at pp. 489-490.
14. 142001 CanLII 8538 (ON CA), [2001] O.J. No. 1879, at para. 22, 54 O.R. (3d) 161, leave to appeal to the Supreme Court of Canada dismissed with costs, [2001] S.C.C.A. No. 397.
15. 15On collateral attack, see Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, and R. v. Consolidated Maybrun Mines, 1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706. In Danyluk, Justice Binnie expressed the judicial consensus when he said, “the unsuccessful litigant in administrative proceedings should be encouraged to pursue whatever administrative remedy is available.” (p. 487)
16. 16Though Ms. Danyluk, who was represented by counsel throughout, chose the ESA forum, “[n]evertheless, the purpose of the ESA is to provide a relatively quick and cheap means of resolving employment disputes. Putting excessive weight on the ESA decision in terms of issue estoppel would likely compel the parties in such cases to mount a full-scale trial-type offence and defence, thus tending to defeat the expeditious operation of the ESA scheme as a whole. This would undermine fulfilment of the purpose of the legislation.” (para. 73)
17. 17“As already mentioned, quick and expeditious procedures suitable to accomplish the objectives of the ESA scheme may simply be inadequate to deal with complex issues of fact or law. Administrative bodies, being masters of their own procedures, may exclude evidence the court thinks probative, or act on evidence the court considers less than reliable. If it has done so, this may be a factor in the exercise of the court’s discretion. Here the breach of natural justice is a key factor in the appellant’s favour.” (para. 75)
18. 18See the cases noted at footnote 12, above.
19. 192000 CanLII 16945 (ON CA), [2000] O.J. No. 4338, 53 O.R. (3d) 566.
20. 20Weekly benefits present different considerations because the SABS appears to contemplate a single application for benefits and a single refusal that triggers the start of the limitation period: Kirkham and State Farm Mutual Automobile Insurance Company, (OIC P96-00069, January 27, 1997), application for judicial review dismissed (unreported decision of the Divisional Court, dated March 31, 1998), leave to appeal to the Court of Appeal denied, July 9, 1998. This has led to questions about claims for a resumption of benefits after a failed return to work or school. For example, see Haldenby and Dominion of Canada General Insurance Company, unreported decision of the Ontario Court of Appeal, August 17, 2001, Court File C35214; Cole and Allstate Insurance Company of Canada, (FSCO P01-00016, May 23, 2003). For purposes of this appeal, I need not consider the application of issue estoppel in weekly benefits cases. Nor do I address the different context of attendant care benefits, death and funeral benefits or payment for out-of-pocket expenses.
21. 21Subsection 39(7).
22. 22Subsection 39(11).
23. 23See also s. 36(4), which requires certain limited goods and services to be paid pending resolution of a dispute, and s. 69 which authorizes prior approval of expenses. The procedural rules governing medical and rehabilitation benefits were significantly strengthened in the SABS-1996. Subsection 38(1) requires an application to be made before the expense is incurred, though ss. 38(17) and 38(18) provide some leeway if the application is submitted within 30 days.
24. 24He agreed that issue estoppel did apply to “the findings that each accident had materially contributed to Mr. Saliba’s condition, that the subsequent surgery was causally connected to the accidents, and most importantly, that each accident gave rise to a ‘fresh set’ of accident benefits” (p. 10).
25. 25Section 287 reads:
26. 26At pp. 7-8 and 10 of Arbitrator Miller’s decision.
27. 27The Law of Evidence in Canada, 2nd ed., Sopinka, Lederman and Bryant (Toronto: Butterworths, 1999), para. 3.13. See, for example, Ritch v. Sun life Assurance Co. of Canada, [1998] O.J. No. 2266 (Ont. Gen. Div.).
28. 28Justices Lebel and Deschamps wrote separate concurring reasons, differing only on the approach to establishing the standard of review. The Court rejected the “self-standing finality principle” relied on by the Ontario Court of Appeal, and reaffirmed the different roles of the related doctrines of issue estoppel, abuse of process, and collateral attack.
29. 29Para. 37. In the civil context, see, for example, Reddy v. Oshawa Flying Club, [1992] O.J. No. 1337, in which the defendants’ dismissal motions were granted based on res judicata and abuse of process.
30. 30Or, after the 1996 amendments, the parties may agree to appoint a private arbitrator under the Arbitration Act, 1991.
31. 31See, for example, Rule 1.1 of the Dispute Resolution Practice Code, which states, “These Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute. The interpretive rule codifies one of the foundational principles of the accident benefits scheme.
32. 32Director Draper found that the criteria set out in Victoria Property and Investment Co. (Canada) Ltd. et al. v. Vitznau Management Ltd. (1978), 1978 CanLII 1286 (ON HCJ), 22 O.R. (2d) 193 (H.C.J.), and adopted in Citadel General Assurance Company v. Gogna, [1992] O.J. 1996, are the starting point. He also found Asome useful guidance in the criteria set out in King and Royal Insurance Company of Canada, (FSCO A98-000234, March 24, 1999). See also Miller and Allstate Insurance Company of Canada, (FSCO P99-00026, June 12, 2000).
33. 33The withdrawal cases reflect a similar balancing of interests. For example, Sellathamby and Allstate Insurance Company of Canada, (P02-00009, December 17, 2002).
34. 34At p. 10 of Arbitrator Miller’s decision.
35. 35Timing was also the critical issue in Henderson and The Citadel General Assurance Company, (FSCO A02-000156, November 25, 2003). Ms. Henderson was awarded certain housekeeping and taxi expenses in a previous arbitration before Arbitrator Allen. In the second arbitration, Arbitrator Sandomirsky dismissed the Insurer’s abuse of process argument because the home maintenance claims at issue before her were submitted to the Insurer after release of the previous decision, though most of the expenses were incurred before the first hearing: “[a]lthough home maintenance was an issue before Arbitrator Allen, the specific claim for payment of the expenses submitted in this hearing were not before her” (p. 4).
36. 36At p. 4 of Arbitrator Muir’s decision.
37. 37(FSCO P03-000006, November 18, 2003), at pp. 16-17.
38. 38M.D. and Halifax Insurance Company, (FSCO P00-00049, May 16, 2001), p. 6. [footnote in original]
39. 39The leading case is Walker and State Farm Mutual Automobile Insurance Company, (OIC A-009905, February 23, 1996), confirmed on appeal, though on narrower grounds (OIC P96-000036, December 3, 1996). [footnote in original]
40. 40Arbitration decision, pp. 16-17.
41. 41For example, see Violi and General Accident Assurance Company of Canada, (FSCO A98-000670, August 20, 1999); Amoa-Williams and Allstate Insurance Company of Canada, (FSCO A97-001864, June 5, 2000); Wong and Allstate Insurance Company of Canada, (FSCO A99-000545, September 22, 2000); Smith and Allstate Insurance Company of Canada, (FSCO A97-001789, July 4, 2001); and Kolonjari and Cumis General Insurance Company, (FSCO A00-000449, October 4, 2001); and Driver and Traders General Insurance Company, (FSCO P03-00006, November 18, 2003).