Wawanesa Mutual Insurance Company v. Victoria Cooper, 2008 ONFSCDRS 97

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 97

Appeal P08-00015

WAWANESA MUTUAL INSURANCE COMPANY Appellant

and

VICTORIA COOPER Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. Aldo Picchetti for Wawanesa Mutual Insurance Company Ms. Angela L. Currie for Ms. Cooper

PREHEARING DATE: June 20, 2008

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

The time for serving and filing the Notice of Appeal is extended to April 18, 2008.
The time for filing the Response to Appeal is extended to May 21, 2008.
The appeal from a preliminary issue, on whether there was an accident, may proceed.
The parties shall attend to setting appropriate arbitration pre-hearing and hearing dates.
The Appellant shall serve and file its written submissions by Friday, July 18, 2008, at 4:30 p.m.
The Respondent shall serve and file her written submissions by Friday, August 15, 2008, at 4:30 p.m.
The appeal hearing shall be held at the offices of the Commission on Tuesday, September 16, 2008, at 10:00 a.m.

June 20, 2008

Lawrence Blackman Director’s Delegate

Date

I. NATURE OF THE APPEAL

A preliminary issue hearing in this matter was heard on January 30, 2008 as to whether Ms. Cooper (the “Respondent”) was injured as a result of an accident, as defined in subsection 2(1) of the Schedule.¹ In her February 14, 2008 decision, Arbitrator Miller (the “Arbitrator”) found that Ms. Cooper was injured as a result of an accident.

Wawanesa Mutual Insurance Company (the “Appellant”) filed a Notice of Appeal with the Commission on April 18, 2008. The Notice of Appeal included a request for a stay of the arbitration order.

On April 24, 2008, pursuant to subsection 6(4) of the Insurance Act, R.S.O. 1990, c. I. 8, I was appointed the Director’s Delegate in this matter with the authority to exercise the Director’s powers as required. I acknowledged the appeal on April 25, 2008 by facsimile transmission to counsel, indicating the Respondent had twenty days to serve and file her Response to Appeal. I noted Rule 50.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the “Code”) which provides that a party may not appeal a preliminary order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided, unless the Director orders otherwise.

A Response to Appeal, dated May 7, 2008, was received by the Commission on May 21, 2008 by mail. The Respondent submitted that the Notice of Appeal had been filed out of time and the Appellant had not provided reasonable grounds to justify an extension.

I wrote the parties May 23, 2008 indicating that a pre-hearing discussion would be helpful in addressing the preliminary procedural issues in this appeal. On the consent of both parties, a June 20, 2008 pre-hearing was arranged at the Commission.

II. Procedural Issues

Is the Response to Appeal out of time, and if so, should it be received?

Rule 53 of the Code requires a respondent to complete, serve and file a Response to Appeal within twenty days of receiving the Director’s acknowledgement of the Notice of Appeal. My acknowledgement of the Notice of Appeal herein was delivered to both counsel on April 25, 2008. The Response to Appeal was noted by the Commission to be received on May 21, 2008.

In Lebana and Zurich Insurance Company (Commercial Business) (FSCO A04-001439, May 26, 2005), Arbitrator Wilson stated that:

Since the time requirements contained in the Practice Code are mandatory, it would appear that a Response filed late would continue to have no status until rectified by an order of an adjudicator extending the time for the filing of a Response, pursuant to Rule 81 [of the Code].

The Respondent states that a copy of the Response to Appeal was sent to the Commission on May 8, 2008 by facsimile transmission. Included in the Commission file is a Statement of Service indicating that the Appellant was served with the Response to Appeal on May 8, 2008. On the consent of both parties, pursuant to section 81 of the Code, I exercise my discretion to extend the time for filing the Response to Appeal to May 21, 2008, if that is indeed required.

Should the Notice of Appeal be struck on the basis that it is out of time?

The Arbitrator’s decision is dated February 14, 2008. Subsection 283(2) of the Insurance Act provides that a notice of appeal shall be delivered to the Commission within thirty days after the date of the arbitrator’s order. The Notice of Appeal herein was delivered to the Commission on April 18, 2008.

Subsection 283(3) of the Insurance Act states that the Director may extend the time for requesting an appeal if the Director is satisfied that there are reasonable grounds for granting the extension. The Respondent does not consent to the extension.

I exercise my discretion pursuant to section 81 of the Code to extend the time for filing the Notice of Appeal. There are reasonable grounds for extending the time as the Appellant was considering the most appropriate procedure for this appeal and, as set out below, in the circumstances of this case, it is most sensible, efficient and cost effective that this appeal be heard at this time.

Should the Notice of Appeal be rejected on the basis that it is an appeal from a preliminary or interim order?

Although this appeal is from a preliminary issue, the question in issue, if decided in favour of the Appellant, would completely dispose of this proceeding. In effect, it would be a final order.

Rule 1.1 of the Code states that the Rules are to be “broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.” It would make little sense in terms of time and expense to proceed to an adjudicative determination in arbitration on the entitlement and/or quantum issues in dispute, only to return to this appeal and find that the incident in question did not constitute an accident as defined and that the Respondent had no entitlement whatsoever under the Schedule. The parties agree.

Accordingly, I exercise my discretion to allow this appeal from a preliminary order to proceed.

Should the stay request be granted?

The request herein for a stay is not so much of an order as of the proceeding. I am advised that there is a four-day arbitration hearing scheduled to commence July 21, 2008. However, even if this appeal proceeding were to be completed by that date and should the arbitration decision be confirmed, these dates are not tenable. The parties advise there has been no arbitration pre-hearing on the entitlement issues in dispute and that such a discussion is necessary.

In my view, it would be more effective, especially as the parties are working co-operatively to advance this matter in the most efficient manner, that they contact arbitration to request, on consent, an adjournment of the present arbitration hearing to more realistic dates and, in the interim, arrange for an appropriate pre-hearing date so that this matter might most expeditiously move towards dispute resolution whatever the result on appeal.

Further Procedural Steps

Rule 54.1 of the Code states that the appellant must serve and file written submissions within thirty days of the date on which the Response to Appeal was due. Pursuant to Rule 81 of the Code, on the consent of both parties, I extend the time for the Appellant to serve and file its written submissions to Friday, July 18, 2008, at 4:30 p.m.

Rule 54.3 of the Code provides that within twenty days of receiving the appellant’s written submissions, the respondent must serve and file his or her written submissions. Pursuant to Rule 81 of the Code, on the consent of both parties, I extend the time for the Respondent to serve and file her written submissions to Friday, August 15, 2008, at 4:30 p.m.

On the consent of both parties, the date for oral submissions is set for September 16, 2008, at 10:00 a.m., at the offices of the Commission. The Appeals Administrator will be serving a Notice Appeal Hearing shortly.

III. EXPENSES

The legal expenses of this pre-hearing discussion are deferred to the appellate officer hearing this appeal. I wish, however, to acknowledge and thank both counsel for their co-operation and assistance at this pre-hearing discussion.

June 20, 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.