Neutral Citation: 2006 ONFSCDRS 150

FSCO A04-002373

BETWEEN:

STANISLAV KANAREITSEV

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A MOTION

Before: Jeffrey Rogers

Heard: August 29, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Henry Goldentuler, solicitor for Mr. Kanareitsev

Karen McGuire, solicitor for TTC Insurance Company Limited

Issues:

The Applicant, Stanislav Kanareitsev, was injured in a motor vehicle accident on July 12, 2001. He applied for and received statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ The parties disagree on whether Mr. Kanareitsev suffered a catastrophic impairment as a result of the accident. They were unable to resolve their dispute through mediation, and Mr. Kanareitsev applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing was scheduled to start before me, on August 29, 2006.

In an earlier application for arbitration (FSCO A02-001225), Mr. Kanareitsev claimed entitlement to several benefits under the Schedule. The hearing in that application was conducted from January 12 to 15 and June 21 to 30, 2004. In a decision dated July 7, 2005, Arbitrator Killoran found that Mr. Kanareitsev's impairments were caused by the accident, and not by his pre-existing condition of polyneuropathy, as TTC argued. TTC appealed that decision. The appeal was heard in March 2006 and the appeal decision is expected shortly.

A CAT-DAC was conducted in April 2004. The DAC concluded that Mr. Kanareitsev's impairments resulted from his pre-existing condition of polyneuropathy. On August 25, 2006, Mr. Kanareitsev served TTC with a Notice of Motion, returnable before me on August 29, 2006. The motion seeks an order excluding TTC's evidence on the issue of whether Mr. Kanareitsev's impairments resulted from his pre-existing condition of polyneuropathy, on the grounds of res judicata or issue estoppel.

Before me, Mr. Kanareitsev's position was that the arbitration hearing should be adjourned but the motion should proceed, despite the pending appeal decision. TTC's position was that the motion should be adjourned to be determined after the appeal decision, but before the main arbitration hearing. TTC also sought an order requiring Mr. Kanareitsev pay its expenses thrown away in preparation for the arbitration hearing, as a result of the late delivery of the motion.

The issues are:

Should Mr. Kanareitsev's motion be adjourned until after receipt of the appeal decision?
Should a determination of TTC's entitlement to expenses for preparation and attendance on August 29, 2006, be made at the present time?

Result:

The motion is adjourned on terms as set out in the attached order.
The issue of expenses is reserved to be determined after the completion of the arbitration.

ANALYSIS:

Adjournment of Motion

Mr. Kanareitsev submitted that the motion should be heard, despite the pending appeal decision, because that is the most efficient way to proceed and the parties have an interest in determination of the question of law that the motion raises, regardless of the outcome of the appeal. Mr. Kanareitsev conceded that if the motion is adjourned and TTC is successful on the appeal, the issue on the motion would become moot.

I ruled that proceeding with the motion, with the potential that the outcome would be rendered moot by the appeal decision, was not the most efficient way to proceed. In addition, the parties' interests are not served by providing them with a decision that might prove to be of no value to them in the arbitration and is binding precedent for no one. The motion would therefore be adjourned, with terms for its efficient resolution, in the event that TTC's appeal proved unsuccessful. The parties agreed that there is no current impediment to the motion being resolved without oral evidence. The parties also agreed that they can adhere to the terms for delivery of submissions, as set out in my order.

Expenses

Although not relinquishing its claim to entitlement to expenses, TTC conceded that it was not necessary to immediately determine its entitlement. TTC also indicated that it was not yet in a position to argue quantum. I ruled that, because there was no apparent improper conduct, warranting immediate sanction, entertaining TTC's request for an order for expenses would unnecessarily fragment the process. I therefore reserved determination of the issue until after completion of the arbitration.

September 12, 2006

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario