Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2008 ONFSCDRS 40
Appeals P08-00003 and P08-00004
OFFICE OF THE DIRECTOR OF ARBITRATIONS
PATIENCE SARPONG AND VICTORIA OWUSU Appellants
and
TD HOME AND AUTO INSURANCE COMPANY Respondent
BEFORE: Delegate Lawrence Blackman
REPRESENTATIVES: Mr. Murray Tkatch for Ms. Sarpong and Ms. Owusu Mr. Andrew Grayson for TD Home and Auto Insurance Company
HEARING DATE: Written submissions were received by March 3, 2008
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The Appellants’ motion for a stay of the orders of Arbitrator Muir dated January 17, 2008 is dismissed
March 7, 2008
Lawrence Blackman Director’s Delegate Date
REASONS FOR DECISION
I. BACKGROUND AND SUBMISSIONS
Ms. Sarpong and Ms. Owusu (the “Appellants”) were both involved in a motor vehicle accident on June 2, 2004. They subsequently applied to TD Home and Auto Insurance Company (the “Respondent”) for accident benefits payable under the Schedule.1 The parties were unable to resolve their disputes regarding the Appellants’ entitlement to benefits. The Appellants, therefore, applied for arbitration at the Commission. In September 13, 2006 pre-hearing letters, Arbitrator Allen combined these proceedings pursuant to Rule 30 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the “Code”).
These matters proceeded to a seven-day hearing before Arbitrator Muir (the “Arbitrator”). In decisions dated January 17, 2008, the Arbitrator dismissed the Appellants’ claims for income replacement benefits and a special award.
The Appellants filed their Notices of Appeal with the Commission on February 20, 2008. In their covering letters, both Appellants requested that these appeals be heard together.
The Appellants also requested, in their respective Notices of Appeal, that the Arbitrator’s orders be stayed. The basis of this motion was that:
(a) the appeals raised bona fide issues of law; and,
(b) the Respondent would suffer no hardship if a stay were granted.
By letter dated February 22, 2008, I acknowledged receipt of the Notices of Appeal. In my correspondence, I requested that the Respondent include in its Responses to Appeal submissions regarding the requests for a stay and the requests that these appeals be combined.
The Respondent filed its Responses on March 3, 2008. It agreed that these appeals should be heard together. It did not agree that that the arbitration orders should be stayed, arguing that the appeals did not raise bona fide issues of law, that no evidence had been provided as to the hardship to the Appellants in not staying the orders and that staying the orders would cause the Respondent undue hardship as it may be prejudiced in collecting its legal expenses, to which it claims entitlement although no order in this regard is alleged to have been made.
II. ANALYSIS
Rule 30 of the Code addresses the combining of applications. The criteria to determine whether to combine applications is whether there are issues or questions of law, fact or policy in common and whether the application of the Rule will result in the most just, quickest and least expensive means to deal with the applications.
Rule 30 is found in Part 3 of the Code, which pertains to arbitration and neutral evaluation at the Commission. Part 4 of the Code pertains to appeals. There is nothing in Part 4 regarding combining appeals. However, Rule 1.2 of the Code provides that:
Where something is not specfically provided for in these Rules, the practice may be decided by referring to similar Rules in this Code.
I am persuaded that it would be appropriate to apply the criteria in Rule 30 to the question of whether or not to combine these appeals.
I am further persuaded that these matters should be combined, in accordance with the criteria set out in Rule 30. Both of these appeals were heard by the same arbitrator in the same hearing. The Appellants are represented by the same counsel. The insurer is the same in both cases, and also represented by the same counsel. Both matters arise out of the same motor vehicle accident. The Notices of Appeal are extremely similar, as are the Responses. All parties agree that these matters should be combined. I am persuaded that these appeals have issues or questions in common and combining these appeals would result in the most just, quickest and least expensive means to deal with the Applications.
I now turn to the requests for a stay of the arbitration orders of January 17, 2008.
In Allstate Insurance Company of Canada and N.I. (FSCO P07-00024, March 7, 2008), released this same day, I stated that:
Subsection 283(6) of the Insurance Act, R.S.O. 1990, c. I.8 (as amended) . . . specifically provides that an appeal does not stay the order of an arbitrator, unless the Director decides otherwise. As stated by Delegate McMahon in Guardian Insurance Company of Canada and Armstrong, (FSCO P00-00037, July 20, 2000), a stay from an order of an arbitrator at the Financial Services Commission of Ontario (“FSCO”) is the exception, rather than the rule.
I further stated that:
Delegate McMahon, in determining whether a stay should be granted in Armstrong, adopted Delegate Richardson’s criteria in Canadian Home Assurance Company and Scavuzzo (OIC P-000626, May 18, 1992), namely:
the bona fides of the appeal;
the substance of the grounds for appeal; and,
the hardship to the respective parties if the stay is granted or refused.
In N.I., the arbitrator had ordered that the insurer pay the applicant certain benefits. The insurer wished to have that order stayed. In these particular proceeidngs, the Arbitrator did not order payment of any monies by or against any party. Presently, there is nothing to stay. It may be that at some point there may be an expense award, but currently, that is purely hypothetical. Accordingly, the motions for a stay of the Arbitrator’s January 17, 2008 orders are dismissed.
March 7, 2008
Lawrence Blackman Director’s Delegate Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.