Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 39

FSCO A04-001790

BETWEEN:

DIANNE SCOTT

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: David Muir

Heard: March 2, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Alden M. Dychtenberg for Mrs. Scott

Todd J. McCarthy for State Farm Mutual Automobile Insurance Company

Issues:

Dianne Scott was injured in a motor vehicle accident on March 20, 1999. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated Mrs. Scott's income replacement benefits and she brought an application for arbitration. An arbitration respecting that dispute was held in February, 2003. In a decision dated May 15, 2003, I determined that Mrs. Scott was entitled to, amongst other things, an income replacement benefit. That decision was appealed.

One of the issues in the prior arbitration between the parties had been the deductibility from income replacement benefits of a disability pension plan (the HOOPP pension). I determined that it was not deductible and that aspect of my decision was upheld on appeal in a decision of Director's Delegate Evans.² An Application for judicial review of the appeal decision was brought by State Farm and was perfected on or about January 30, 2006.

In the meantime, a number of calculation issues arose out of my earlier arbitration decision, some of which were impacted by the appeal decision and others perhaps not. In broad terms these issues relate to the interaction between the income replacement benefit and various disability and pension income streams which Mrs. Scott has received since her car accident. There also may be disputes about the calculation of interest on benefits owing and potential repayment issues. The parties were unable to resolve these disputes through mediation, and Mrs. Scott applied again for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the outset of this hearing on March 2, 2006, State Farm brought a motion to adjourn the hearing pending the application for judicial review of the appeal decision upholding my findings related to the deductibility of the HOOPP pension. It is anticipated that a date for the judicial review hearing could be within six or so months and the decision either immediately thereafter or possibly within a month or two subsequent to the hearing. In practical terms, the request was for an adjournment of this hearing until the end of the year 2006.

State Farm also relied upon the acknowledged late filing by Mrs. Scott of an accountant's report upon which she intends to rely.

Mrs. Scott opposed the lengthy adjournment, but conceded that State Farm may require time to digest and respond to the late-filed accountant's report.

I declined to grant State Farm's request to adjourn the hearing until after the Divisional Court has determined the issue before it. Below are my reasons.

Judicial Review is an extraordinary remedy and not routinely granted. In some statutory schemes an application to the court, in whatever form, requires the stay of the decision being taken to the court. That is not the case here - there is no statutory provision for a stay of a Commission decision upon an application for judicial review. There is an important policy reason underlying the absence of an automatic stay. The general rule, as I understand it, is that the decision-making process of a statutory tribunal ought not be delayed in the face of an application for judicial review in the absence of agreement or some compelling reason related to the subject matter of the issue in dispute. In the end, it is a matter of my discretion whether in all of the circumstances a matter ought to be adjourned in the face of an application for judicial review.³

While I accept that the decision of the Divisional Court may have a bearing on some, but perhaps not all, of the issues in dispute here, I am not persuaded that this possibility trumps the other considerations at play in balancing these issues.

I have considered that State Farm has had two opportunities to persuade a decision-maker of the correctness of their position on the main issue in the judicial review and to date has not been successful. I note as well the fact that the adjournment request was made on the day of the hearing. The timing of the request as it relates to the late service of the accountant's report is entirely justifiable; however, there was no explanation for the timing of the request for a lengthy adjournment pending the judicial review.

I recognize that what is sought here is not a stay per se, but an adjournment of the hearing for a further nine or more months. Mrs. Scott is in receipt of her income replacement benefits, and broadly speaking the issues between the parties relate to calculation issues for the periods prior to my May 15, 2003 order. Nonetheless it is an overriding concern of the dispute resolution process that it be expeditious, efficient and just. A delay pending the outcome of the judicial review clearly runs afoul of the goal that the process be expeditious. To my mind, delay is also presumed to run afoul of the requirement that the process be efficient and just. In the absence of some factor rebutting these presumptions the arbitration ought to proceed to its conclusion notwithstanding the related judicial review.

The other issue raised by State Farm does support a short adjournment of the hearing, however. As indicated, Mrs. Scott delivered an accountant's report to State Farm a day or two prior to the hearing. Mrs. Scott indicated that she was relying upon it and was not prepared to proceed without it. Although framed as an adjournment request by State Farm, the issue in my mind was more properly whether or not there were extraordinary circumstances justifying the late serving of this report pursuant to Rule 39 of the Dispute Resolution Practice Code (4th ed.), and in the absence of such circumstances, was Mrs. Scott entitled to an adjournment in order to allow State Farm time to digest and respond to it.

Without getting into the details, it appears that both parties bear some responsibility for the late commissioning and then filing of this report and I make no more definitive findings in this regard. However, in all of the circumstances including Mrs. Scott's concession that fairness required it, I determined that a short adjournment was in order to allow State Farm time to consider and perhaps respond to the late report. The parties agreed, with no guarantees of course, that with their respective accountants' views in hand, it may be possible to resolve or narrow some of the areas of dispute between them.⁴

The parties agreed to resume the hearing on Monday, May 15, 2006, at 10:00 a.m. They also agreed it may be useful to participate in a settlement conference prior to the resumption. The Commission will contact the parties by telephone to schedule same.

EXPENSES:

There will be no order of expenses at this stage of the proceeding. As always, the conduct of the parties throughout the proceeding may be considered when dealing with entitlement to expenses at its conclusion.

March 7, 2006

David Muir Arbitrator

Date