Erica Patricia Lindsay v. Allstate Insurance Company of Canada, 2008 ONFSCDRS 63

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 63

Appeal P06-00012

Appellant

and

Respondent

BEFORE:

David Evans

Erica Patricia Lindsay, unrepresented

Monique Rae Bennett for Allstate

June 27, 2007

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Ms. Lindsay’s appeal of the arbitration decision dated March 27, 2006 is dismissed.
If the parties are unable to agree about Allstate’s expenses of the arbitration hearing or of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 21, 2008

David Evans

Director’s Delegate

Date

I. NATURE OF THE APPEAL

Ms. Lindsay was injured in two motor vehicle accidents on July 23, 2001 and July 27, 2002. She made claims for accident benefits from Allstate Insurance Company of Canada pursuant to the SABS–1996.¹ She appeals the arbitrator’s finding that she is precluded from proceeding to arbitration because she entered into a binding full and final settlement with Allstate of all her accident benefit claims arising out of these two accidents.

II. BACKGROUND

The arbitrator went into great detail about the background to this case. It is not necessary to repeat it all here, since there is little disagreement between the parties about the essential facts.

Ms. Lindsay’s scheduled three-day hearing regarding the benefits she claimed arising out of the two accidents was to commence on August 8, 2005. Settlement discussions on that date led to a tentative settlement, and Allstate prepared the relevant releases as well as the requisite settlement disclosure notices. However, on August 10, 2005, Ms. Lindsay wrote to the Commission advising that she had decided not to accept the settlement offer. The hearing was rescheduled to start in Windsor on September 27, 2005.

On the morning of September 27, 2005, the parties again engaged in settlement discussions. The matter was about to proceed when Ms. Belluz, Allstate’s adjuster in attendance, asked Ms. Lindsay to reconsider Allstate’s last offer. Ms. Lindsay proposed a slightly higher amount, which Ms. Belluz accepted. The releases that had been prepared in August were amended and initialled to reflect the new settlement figures. They were then executed by the parties and witnessed by the court reporter. The settlement disclosure notice was executed at the same time. Ms. Lindsay does not dispute that she signed the documents.

Over the course of the next two days, Ms. Lindsay first attempted to rescind the settlement and then reconfirmed it. On September 28, 2005, she wrote to the case administrator at the Commission, and to Ms. Bennett, counsel for Allstate, advising that she was “refusing the offer at this time.” However, she later telephoned Ms. Bennett to advise that she was prepared to take the settlement after all. Ms. Bennett asked her to confirm her intentions in writing, so Ms. Lindsay faxed a letter to the case administrator at the Commission and to Ms. Bennett that same day, stating that she was withdrawing her previous refusal and that she was accepting the offer of September 27, 2005. The letter also stated: “I understand that the cooling off period will be 11:30 on Sept. 29, 2005.”

On October 2, 2005, Ms. Lindsay faxed a hand-written note to Ms. Bennett, demanding that Allstate re-open her claim. Ms. Bennett wrote to Ms. Lindsay on October 4, 2005 stating that the cooling off period in this matter had expired. Ms. Bennett advised the arbitrator that the settlement funds were remitted to Ms. Lindsay by registered mail but were unclaimed.

The arbitrator considered these facts and various submissions made by Ms. Lindsay regarding the surrounding circumstances. He found no evidence of undue influence. He found that the time had passed under the Settlement Regulation (discussed below) for Ms. Lindsay to rescind the agreement and that the agreement was thus binding.

III. ANALYSIS

On a preliminary note, at the appeal hearing Ms. Lindsay attempted to file evidence in the form of medical reports completed more than a year after the purported settlement. I found they were fresh evidence that were neither relevant nor would have made a difference to the arbitrator’s decision. Accordingly, they were not admitted. After the appeal hearing, Ms. Lindsay continued to send in materials. None of these were considered by me.

As noted above, the essential facts of this case are not in dispute. Most of Ms. Lindsay’s submissions turn on tangential or irrelevant factors, as discussed below. The only possible legal issue is the arbitrator’s treatment of Ms. Lindsay’s actions during the so-called cooling off period. Settlements are governed by the Settlement Regulation, as set out in s. 9.1 of R.R.O. 1990, Reg. 664, as amended. The cooling off period is contained in s. 9.1(4):

The insured person may rescind the settlement within two business days after the later of the day the insured person signs the disclosure notice and the day the insured person signs the release.

Subsection 9.1(7) provides that an insured person may rescind an agreement by delivering written notice to the insurer or its representative and returning any money received as part of the settlement. As noted above, Ms. Lindsay signed the disclosure notice and the release on September 27, 2005, so she had two business days to rescind. Although she sent a notice to the insurer within that period, she also cancelled that notice. The arbitrator held that what mattered was the ultimate decision reached by Ms. Lindsay during that period:

Ms. Lindsay had the right, within the cooling off period, to reconsider her decision in any way she wished to. I find that she also had the right to vacillate during that time period. Her statutory obligation was to confirm in writing, within that time period, her intention to resile from the settlement if that was her decision. The default position is that, unless Ms. Lindsay communicated an intention not to proceed with the agreement during the two business days after signing the settlement documents, she is deemed to have confirmed the settlement.

I agree with the arbitrator’s analysis. In any event, Ms. Lindsay did not take issue with it so much as attack the surrounding events to suggest that she was somehow coerced into agreeing to the settlement.

For instance, Ms. Lindsay submits that it was not until the day of the arbitration hearing that she received her OHIP records. Ms. Bennett submits that this was a production request that was delayed because Ms. Lindsay did not provide the release. In any event, Ms. Lindsay submits that she entered into the settlement without realizing the extent of her injuries, and she was only made aware of them once she saw the OHIP records. However, she provided no explanation that there was new information that would have caused her to rethink her position.

Ms. Lindsay submits that she was unduly influenced by a clerk at the Commission into accepting the settlement. There appears to be an oblique reference to this in the evidence she gave at the hearing, as the arbitrator noted that “she chose to speak to family members or acquaintances, whom she declined to identify, who apparently told her that she ought to consider accepting the settlement.” Ms. Lindsay set this out in more detail in her appeal submissions. Aside from the fact that she could have given this evidence at the arbitration hearing, I fail to see how a conversation with a clerk could constitute undue influence sufficient to invalidate the settlement. As the arbitrator noted in the section from which I quoted, Ms. Lindsay was advised in the settlement disclosure notice to seek legal advice, and she did not do so. That she allegedly chose instead to accept the advice of an acquaintance who happens to be a clerk at the Commission does not suffice to set aside the settlement. Furthermore, I have no basis on which to find the arbitrator erred in concluding that the insurer did not coerce Ms. Lindsay into the settlement, as this is a finding of fact that is not subject to appeal except in the absence of evidence, and the arbitrator set out the evidence upon which he reached that conclusion.

Ms. Lindsay submits that she did not understand the cooling off period and that Ms. Bennett suggested she use the term in her letter confirming that she intended to proceed with the settlement. However, as the arbitrator noted, she had rescinded the earlier settlement within the cooling off period, and even if she was not aware of the term “cooling off period” until she put it in that letter, she was clearly aware of its effect and knew when it would expire.

Ms. Lindsay objects to the following comments by the arbitrator, calling them character assassination: “Ms. Lindsay knows how to play the negotiating game, and frankly, it is abundantly clear to me that she is actually rather adept at it…. Ms. Lindsay, to put it bluntly, is a gambler, and I find that her decision to ‘roll the dice’ one more time was too late here.” While the comments are perhaps more colourful than necessary, I am not satisfied they constitute bias. The arbitrator heard evidence about how the negotiations proceeded, including that the final figure was suggested by Ms. Lindsay herself. Accordingly, his comments were meant to emphasize that he found Ms. Lindsay was aware of what she wanted to achieve in the negotiating process and reached that goal.

Ms. Lindsay made a number of submissions about the calculations leading up to the settlement figures and how she feels she was short-changed by the insurer. However, none of them have any relevance to the matter at issue.

Finally, I agree with the following comment made by the arbitrator at the end of his decision: “During the preliminary hearing, Ms. Lindsay did not offer any explanation of why she did not, once again, write to Ms. Bennett to revoke her settlement after September 28, 2005, and before September 29, 2005, if her intention was not to honour it.” Ms. Lindsay had an additional day to rescind the settlement from the day when she ultimately decided not to rescind it. The formalities of the settlement itself appear to be perfect. As the arbitrator noted, the relevant documents were witnessed by the court reporter, there is no suggestion they do not contain the necessary information, and the whole point of the regulation is to set out formalities that, if they are followed, provide finality for the parties. Ms. Lindsay failed to rescind the settlement within the time period required, and consequently it binds her.

Accordingly, I find no error by the arbitrator and the appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code. The arbitrator awarded Allstate its expenses of the arbitration hearing. I am prepared to determine both arbitration and appeal expenses if necessary. As to appeal expenses, since Ms. Lindsay was unsuccessful on her appeal, it is highly unlikely she would be entitled to her expenses. Any hearing regarding appeal expenses will only deal with Allstate’s entitlement to expenses and their amount.

April 21, 2008

David Evans

Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule –Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.