Siong Ming Yae v. Allstate Insurance Company of Canada, 2009 ONFSCDRS 168

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 168

FSCO A08-002080

BETWEEN:

SIONG MING YAE

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Denise Ashby

Heard: September 25, 2009, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. Yae, representing himself. He participated through a Cambodian interpreter provided by the Commission

Frank Benedetto for Allstate Insurance Company of Canada

Issues:

The Applicant, Siong Ming Yae, claimed to have been injured in a motor vehicle accident on December 30, 1999. He applied for statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate denied benefits. The parties were unable to resolve their disputes through mediation, and Mr. Yae applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Yae precluded from proceeding to arbitration because he has an ongoing civil action against Allstate, in respect of the incident on December 30, 1999, in the Superior Court of Ontario?
Is Mr. Yae liable to pay Allstate’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Allstate liable to pay Mr. Yae’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

Mr. Yae is precluded from proceeding to arbitration and his Application for Arbitration is dismissed.
The parties made no submissions with respect to expenses. In the event they do not resolve the issue, they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

BACKGROUND:

On January 18, 2007, a pre-hearing discussion was held at the Commission in respect of five of Mr. Yae’s claims for benefits pursuant to the Schedule. Allstate was the insurer in 4 of the five claims. Those accidents were alleged to have occurred on December 13, 1999, December 30, 1999, January 13, 2000 and May 9, 2000.² Allstate was not the named insurer in the fifth accident which occurred on December 9, 1999. At the pre-hearing, the parties agreed to settle the 5 claims.

EVIDENCE:

Allstate seeks dismissal of Mr. Yae’s Application for Arbitration in respect of the incident on December 30, 1999 without a hearing on the basis that Mr. Yae had previously commenced an action relating to the incident in the Superior Court of Justice and this proceeding is ongoing. The Court file number is CV-07-084717-00.³

Mr. Yae does not dispute that he has commenced proceedings in respect of the incident in other forums. He submits that it is the only means he has of protecting himself and obtaining payment of the benefits to which he is entitled.

Mr. Yae submitted that he withdrew his action in the Superior Court. He filed the following documents in support of this submission:

A purported Order of the Superior Court of Justice in respect of his motion seeking an order inter alia: “No dismiss until Order to pay we got money 100% free By Law.” The document has two jurats dated May 21, 2009 and July 23, 2009.
A purported Order of an Arbitrator and a Master of the Superior Court. This document contains the following paragraph:

This Dispute statement of claim in the superior court we had discussed in Financial Service Commission of CANADA agreed to discuss in financial services commission of CANADA agree to withdraw it and dispute in financial service commission car accident of December 30th 1999 it was trued. Document disclosure with full and final release and medical settlement only not income Jan 18th 2007 please Director Arbitrator – Case Administrator, Commissioner should have capability considerable and indemnity dismiss with cost. Unit it done we can get money %100 free ByLaw and not dismiss.

The Statement of Claim in respect of an alleged accident on December 13, 1999, Court file number 76959/05.⁴

Allstate disputes that the Superior Court action has either been withdrawn or discontinued.

I find that the irregularities in the two documents purporting to be Orders render them unreliable. The first, has two jurats with two dates of commission. As well, the order sought is not withdrawal but the continuation of the action until Mr. Yae is paid. The second purported Order has both the Court and Commission identified as the forum. The purported Orders have none of the indicia of an Order of the Superior Court discontinuing the action. Therefore, I place no weight on either document. The Statement of Claim relates to another of Mr. Yae’s claims against Allstate which was subsequently dismissed.⁵ It and the corresponding dismissal Order are not evidence that the Claim in respect of the incident on December 30, 1999 was dismissed.

Mr. Yae also submitted letters and forms including his Release of his claim against the other insurer who participated in the pre-hearing settlement discussions on January 18, 2007, as Exhibit 3. The letters and forms are not relevant to the issue before me. Although Mr. Yae’s release of the other insurer may have relevance to these proceedings, Allstate does not dispute that this claim was settled. Therefore, the Release does not assist me in reaching a determination of the present matter. On the basis of the foregoing, I place no weight on Exhibit 3.

Mr. Yae submitted as Exhibit 4, a letter in an unorthodox form of Affidavit which he sent to the Commission and Allstate. On the first page is a notarial seal, the name of the notary public on the seal is only partially legible. On the second page are two jurats. The name of the Commissioner is legible but does not comport with the notarial seal on the first page. The use of both a notarial and Commissioner’s seal on the affidavit renders it unreliable and I place no weight on it. The remaining correspondence relates to procedural issues which are of no assistance in determining the issue before me.

Mr. Yae submitted as Exhibit 5, various documents relevant to his action in the Superior Court. The Exhibit consists of seven pages. The first purports to be an affidavit of service but has a VIVA transit ticket receipt copied on its face. The notarial seal is not consistent with the jurat which purports to be sworn by a Commissioner of oaths. Pages 2 and 3 purport to be an affidavit. There is a reference to exhibits to the affidavit which are not attached. The remaining 4 pages purport to be the Statement of the Plaintiff and Amended Statement of the Plaintiff in respect of a Superior Court of Justice action between Allstate and Mr. Yae. There is no court file number. Therefore I cannot rely on these documents as relating to the incident on December 30, 1999. On the basis of the foregoing I place no weight on Exhibit 5.

Allstate submitted an Affidavit with various exhibits in support of its motion. Mr. Yae did not dispute either their admission as Exhibit 1 or the validity of the Exhibits. I make the following findings of fact based on Allstate’s Affidavit:

On September 8, 2005, Mr. Yae issued a Statement of Claim in Newmarket in respect of an alleged accident on December 13, 1999, court file number 76959/05 which was defended by Allstate.⁶

On January 18, 2007, a pre-hearing discussion was held at the Commission in respect of five of Mr. Yae’s claims. Allstate was the named insurer in 4 of the five claims relating to incidents on December 13, 1999, December 30, 1999, January 13, 2000 and May 9, 2000.⁷ It was not the named insurer in the fifth claim. Mr. Yae was represented by a paralegal. The parties agreed to settle the 5 claims. Mr. Yae signed Releases in respect of the Allstate matters.⁸

On October 12, 2007, Mr. Yae filed his Statement of Claim in the Superior Court of Justice, in respect of the incident on December 30, 1999, court file number CV-07-084717-00, which was defended by Allstate. Mr. Yae claimed an income replacement benefit, medical benefits, damage to clothing and damages in tort for pain and suffering.⁹

On March 3, 2008, Mr. Yae commenced claims in the Superior Court of Justice, Small Claims Court, file numbers SC-08-064943-00 and SC-08-0646942-00 in respect of the incident on December 30, 1999 and an alleged accident on December 13, 1999. In both, Allstate was the named insurer. On April 10, 2008, the Toronto Small Claims Court issued an Order which consolidated those files with SC-08-0646941-00 which related to Mr. Yae’s claim against Allstate in respect of an alleged accident on May 9, 2000.¹⁰ The three claims sought compensation for damaged clothing. These actions were dismissed on the basis that Mr. Yae failed to attend the settlement conference and failed to pay the costs awarded against him by June 15, 2008.¹¹

On March 19, 2008, a status notice from the Superior Court advised that the claim 76959/05, in respect of the alleged accident on December 13, 1999, would be dismissed for delay unless within 90 days the matter was either set down for trial or was terminated or a judge orders otherwise at a status hearing. On June 24, 2008, the action in respect of the accident on December 13, 1999, was dismissed for delay.¹²

On September 24, 2008, Mr. Yae filed for Arbitration in respect of the incident on December 30, 1999. The issues in dispute were: an income replacement benefit, medical and rehabilitation benefits and damage to clothing together with interest on any outstanding benefits. Allstate’s Response by Insurer to an Application for Arbitration was dated October 27, 2008.¹³

ANALYSIS:

On February 12, 2009, a claim advanced by Mr. Yae against Royal and SunAlliance was dismissed without a hearing on the basis that he had commenced an action in the Superior Court in which the issues were substantially the same as those set out in his Application for Arbitration. The Arbitrator relied on the principles set out in King and Royal Insurance Company of Canada as follows:

... the most basic of these principles is that an insured may not pursue a dispute in more than one forum, but is not required to pursue all of his or her disputes in only one forum. King summarizes the remaining principles as follows:

Does the arbitration involve issues substantially similar to those in the civil action?
How far along has the civil action proceeded (for example, have discoveries taken place on the issues before the court)?
Is the civil action broader in scope than the arbitration, both in terms of the issues involved and the relief sought?
Is there any serious impediment to having the issues in the arbitration dealt with in the court proceeding?
Would permitting the Applicant to proceed with the arbitration unduly duplicate proceedings, leading to greater costs and delays and raising the spectre of inconsistent results?¹⁴

In the present matter, Mr. Yae has made claims in three forums. The Small Claims Court action has been dismissed. Mr. Yae commenced his action in the Superior Court on October 12, 2007, Court file number CV-07-084717-00, and filed his Application for Arbitration on September 24, 2008. The Superior Court action has not proceeded beyond the exchange of pleadings. In his Statement of Claim, Mr. Yae seeks compensation for damages in tort and the same accident benefits claimed in his Application for Arbitration. Allstate’s defences are substantially the same in both proceedings. Allstate relies on the settlement reached at the pre-hearing held at the Commission on January 18, 2007 as one of its alternative defences. Therefore, I can find no reasonable impediment to the Court dealing with Mr. Yae’s claims to benefits under the Schedule in the context of the broader tort claim. The Superior Court was his first choice of forum. While this is not determinative, given Mr. Yae’s penchant for proceeding in multiple forums I find that permitting him to proceed to arbitration would “unduly duplicate proceedings and lead to greater costs and raise the spectre of inconsistent results”. Therefore, I dismiss the Arbitration without a hearing.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

December 7, 2009

Denise Ashby Arbitrator

Date