Iqra Hussein Aweys v. Intact Insurance Company, 2012 ONFSCDRS 35

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 35

FSCO A10-004067

BETWEEN:

IQRA HUSSEIN AWEYS

Applicant

and

INTACT INSURANCE COMPANY

Insurer

DECISION ON MOTION

Before: Richard Feldman

Heard: January 25 and 26, 2012, at the offices of the Financial Services Commission of Ontario (“FSCO”) in Toronto.

Appearances: Eric Grossman for the Insurer (moving party)

Marko Djukic for the Applicant (responding party)

Issue:

This is a motion by the Insurer for a stay¹ of this proceeding based on two alternative grounds:

1. The Insurer has commenced proceedings in court that involve related matters; and

2. The Applicant has refused to submit to an examination under oath.

Result:

The request for a stay is denied.

OVERVIEW:

The Insurer² has brought a motion for a stay of proceedings in this and fourteen other cases.³ The Insurer requested that all of these motions be heard together. This request was not opposed by the Applicants and I granted the Insurer’s request that these motions be heard together.⁴

Over the past few years, the Insurer has received numerous claims for accident benefits submitted by or on behalf of insured persons from Assessment Direct Inc., Osler Rehabilitation Centre Inc. and Metro Rehabilitation Centre Inc. (hereinafter referred to collectively as “the Facilities”). The Insurer has concluded that these Facilities are related to each other and that many of the claims submitted by the Facilities are of dubious merit and that the Facilities have engaged in conduct that was deliberately intended to unjustly enrich the Facilities. In some cases, the Insurer believes that it can prove that the Facilities made misrepresentations to the Insurer.

In the summer of 2011, the Insurer commenced an action in the Ontario Superior Court of Justice (Court File No. CV-11-428030) against the Facilities and their principals (the “Defendants”) for, amongst other relief: $15,000,000 in general and punitive damages (which includes the return of approximately $5,000,000 paid by the Insurer to the Facilities); a declaration of unjust enrichment; an accounting and disgorgement of profits by the Defendants; and a declaration that the Insurer need not pay any future or outstanding amounts to the Defendants. That action is still at the very earliest stages as the Insurer is still in the process of serving the Statement of Claim upon some of the Defendants.

The invoices that are in dispute in that court action were submitted by the Facilities to the Insurer on behalf of 218 individual insured persons. The Insurer has not named any insured person as a defendant in that court action. The Insurer has not alleged that any insured person has conspired with the Facilities in the alleged wrongful conduct. Some of those 218 insured persons, including the Applicant in this case and the other fourteen cases heard together with this one, have been denied accident benefits by the Insurer and have chosen to have those disputes adjudicated at FSCO.

In the fifteen motions before me, the Insurer is seeking a stay of these proceedings, on such terms as FSCO deems appropriate. In the alternative, if I am not prepared to stay the entire proceeding, the Insurer is seeking a stay of all issues related directly or indirectly to the Facilities.⁵ The Insurer is seeking a stay of the FSCO proceedings until the conclusion of its court action. In two of fifteen cases (this one and one other), the Insurer is arguing, in the alternative, that a stay is warranted due to the refusal of the Applicant to submit to an examination under oath and is seeking a stay until such time as the Applicant does submit to such an examination. In all fifteen cases currently before me, the Applicants oppose any stay of the FSCO proceedings.

The affidavit, factum and book of authorities filed on behalf of the Insurer (the moving party) were supplemented by lengthy oral argument by counsel for the Insurer. No affidavit was filed on behalf of the Applicant(s) but I did receive a factum and book of authorities and I heard oral submissions from counsel who appeared on behalf of all fifteen Applicants. I have considered all of the written material filed and have considered the arguments advanced by counsel for the parties. For the sake of brevity, I will summarize in broad terms the positions of the parties but it should be recognized that any attempt to provide a summary will, by necessity, fail to reflect some of the nuances of the submissions that were actually made before me.

SHOULD A STAY BE GRANTED AS A RESULT OF THE PENDING COURT ACTION?

SUBMISSIONS OF THE INSURER

Insurer’s counsel took up considerable time reviewing the apparent merits of each of the fifteen cases. The Insurer’s position is that the claims advanced by each of these Applicants is suspicious because:

• in most of these cases, the claims advanced by the Applicants relate exclusively to services provided and/or recommended by the impugned Facilities;
• the Facilities often recommended large amounts of treatment (in terms of the number of plans submitted, the frequency and duration of the recommended treatment sessions and the overall cost of same) and extensive assessments for what appear to be relatively minor, soft-tissue injuries;
• the Facilities continued to recommend treatment even when it ought to have been apparent that similar treatment in the past had done little to improve the condition of the Applicant;
• the Facilities frequently recommended payment of attendant care and housekeeping benefits for up to two years, often in unchanging amounts, for Applicants who appear to have sustained relatively minor injuries and who, in some cases, returned to work shortly after the accident and/or who reported to the Insurer’s assessors that they are independent in their activities of daily living;
• the Facilities have submitted forms to the Insurer for different Applicants that contain strikingly similar recommendations and that use identical wording which, from the Insurer’s perspective, raises questions as to whether the Facilities are actually basing recommendations on the individual needs of insured persons; and
• in many cases, the Insurer has not yet been provided by the Applicant with any supporting medical or other documentation other than from the impugned Facilities (or other companies related thereto).

The Insurer submits that the Facilities have found weaknesses in the Ontario accident benefit system through which they have been able to wrongfully enrich themselves, at the expense of the Insurer and, ultimately, policyholders. It is true that in the last year or so, the Superintendent of Financial Services and others have expressed concern over what appears to be widespread fraud and abuse of the no-fault insurance scheme and the resulting cost to Ontarians. The Superintendent has encouraged insurance companies to be pro-active in combating such fraud and abuse. Mr. Grossman, on behalf of the Insurer, submits that one way to expose this conduct is through the pending court action, in which the Insurer hopes to establish a pattern of misconduct on the part of the Facilities. Given that arbitrations at FSCO typically involve disputed claims made by a single insured person, the Insurer submits that the court action is more comprehensive and the presiding judge will be in a better position to see the alleged pattern of misconduct than will an arbitrator presiding over a single case at FSCO.

The Insurer also raised concerns about a multiplicity of proceedings. This will likely necessitate calling the same evidence multiple times and carries with it the possibility of inconsistent findings on similar issues, which is something that ought to be avoided.⁶ The Insurer also raised concerns about the additional cost and time that will have to be expended by the Insurer if forced to respond in the normal course to what could amount to hundreds of FSCO applications when one court proceeding might reduce or eliminate many of the claims that are currently pending at FSCO.

The Insurer points out that under sections 21 and 23 of the Statutory Powers Procedure Act, FSCO has the power to adjourn or stay this proceeding or make whatever other order is necessary in order to prevent an abuse of process.⁷

The Insurer submits that in considering whether to grant a stay of proceedings, FSCO is bound to follow the test set out in the decision of the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, as followed in that Court’s later decision of RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 (“RJR-MacDonald”). The Supreme Court of Canada adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant [the party seeking a stay] would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.⁸

SUBMISSIONS OF THE APPLICANT

Counsel for the Applicant does not dispute that FSCO has the power, in certain circumstances, to adjourn or stay proceedings. Counsel for the Applicant also agrees that the test set out in RJR-MacDonald is applicable to the Insurer’s request for a stay of this proceeding.

With respect to the first part of that three-part test (i.e., the merits of the Insurer’s allegations as against the Facilities), counsel for the Applicant concedes that the Insurer’s allegations are not obviously frivolous. With respect to the third part of that test (i.e., relative prejudice to the parties), counsel for the Applicant suggested that I could presume that there would be prejudice to the Applicant in staying this application for accident benefits but the Applicant adduced no evidence (by affidavit or otherwise) with respect to the prejudice that will likely be suffered by the Applicant if this motion is granted.

Based upon the oral submissions of counsel for the Applicant, the Applicant appears to be relying primarily upon the second part of the three-part test (i.e., the requirement that the party seeking a stay prove that it will suffer irreparable harm if a stay is not granted). Counsel for the Applicant submits that the Insurer has failed to adduce sufficient or any evidence of irreparable harm and that the risk of inconvenience or greater expense to the Insurer does not constitute irreparable harm. As such, the Applicant submits that it is unnecessary to analyze the third part of the test (i.e., the weighing of relative prejudice to the parties).

ANALYSIS

I am sympathetic to the desire of the Insurer to fight what it perceives to be abuse of the no-fault insurance system in Ontario. Nevertheless, the onus rests upon the Insurer in this motion to establish on a balance of probabilities either that it will suffer irreparable harm if its motion for a stay is not granted or that allowing this case to proceed to be heard on its merits would constitute an abuse of FSCO’s process. I find that the Insurer has failed to meet this onus.

The only evidence before me is the affidavit of Steve White, Director of Accident Benefits for Ontario for Intact. Essentially, he states that, if a stay is not granted, the Insurer will be put to “excessive expense and time.” This was echoed in the submissions made by counsel for the Insurer. As pointed out the Supreme Court of Canada in RJR-MacDonald, monetary loss will not usually amount to irreparable harm in private law cases.⁹ The Insurer has failed to adduce evidence sufficient to prove that the cost of defending this application would be unrecoverable or that the possibility of additional expense constitutes irreparable harm.

Similarly, the Insurer has failed to prove that a stay is warranted in order to prevent an abuse of process. This is not like the cases relied upon by the Insurer where an applicant has created a multiplicity of proceedings by splitting his or her case.¹⁰ Neither is there any convincing evidence before me that this Applicant has engaged in conduct that would amount to an abuse of process.

The remedy the Insurer is seeking in this motion is extraordinary. This is especially so when one considers that the Insurer is seeking a stay of this proceeding because of alleged misconduct, not on the part of the Applicant, but on the part of one or more other persons who are not even parties to this proceeding.

Given the failure of the Insurer to meet its evidentiary onus to establish the possibility of either irreparable harm or abuse of FSCO’s process, it is unnecessary for me to go on to the third part of the RJR-MacDonald analysis and weigh the potential prejudice to the parties. On this issue, however, I will make a few observations.

First, the Insurer’s allegations against the Facilities are yet to be proven and the court action against the Facilities may well take many years to resolve. I agree with counsel for the Applicant that prejudice is presumed when an applicant is prevented from pursuing his or her claim for statutory accident benefits in a timely fashion.

Second, this is also not a situation where the Insurer faces the possibility of its court action being prejudiced by FSCO’s decision(s) creating an issue estoppel. The Insurer concedes that the criteria for issue estoppel do not exist here: the parties are not the same and the issues, while related, are not identical. If the court action proceeds to conclusion, the Superior Court of Justice will be deciding issues concerning the conduct of the Facilities in relation to the Insurer. FSCO will be deciding whether a particular applicant has proven entitlement to specified accident benefits.

Finally, if a stay of this proceeding is not granted on the basis of the pending court action, I note that the Insurer is not precluded from attacking the credibility or weight that ought to be given to opinions that originate from the Facilities. The Insurer contends that none of these claims can succeed without the opinions of the impugned Facilities. This has yet to be tested. It is possible that, even if the Insurer is able to convince an arbitrator to give little or no weight to evidence from these Facilities, an applicant may nevertheless be able to succeed based upon his or her own testimony and that of other lay or expert witnesses.

For the foregoing reasons, I find that a stay of this proceeding is not warranted because of the pending court action being pursued by the Insurer against the Facilities.

SHOULD A STAY BE GRANTED AS A RESULT OF THE APPLICANT’S REFUSAL TO SUBMIT TO AN EXAMINATION UNDER OATH?

SUBMISSIONS OF THE INSURER

This application arises in relation to an accident that occurred in October 2009. Three insured persons made claims to the Insurer as a result of this accident: Munira Hussein Aweys, Iqra Hussein Aweys and Abu Abdulkadir Jeylani. All three persons were (and continue to be) represented by the firm of Mazin, Rooz, Mazin. When the Insurer denied certain claims for accident benefits, the Applicant and the other two insured persons each sought mediation (in or about late 2010) and then each commenced an application for arbitration at FSCO. Several months after these applications for arbitration were commenced, in May 2011 the Insurer sought to have each of these three applicants submit to an examination under oath, purportedly in accordance with section 33 of the Schedule. I am advised by Mr. Grossman that, eventually, Mr. Jeylani did submit to an examination under oath. On the advice of their counsel, Munira Aweys and Iqra Aweys did not.

The Insurer takes the position that it has the absolute right to conduct such examinations, before or after termination of benefits or commencement of litigation (including arbitration proceedings) and that an applicant should not be permitted to avoid such an examination. The Insurer takes the position that it is therefore appropriate to stay this proceeding until such time as the Applicant submits to the requested examination under oath. The Insurer relies upon the cases of Balvers¹¹ and Baig¹² as support for the Insurer’s right to conduct an examination under oath, even after benefits have been terminated and litigation has been commenced by the Applicant.

SUBMISSIONS OF THE APPLICANT

It is submitted that the Applicant was not legally required to submit to an examination under oath in or after May 2011 in the circumstances of this case (i.e., after termination of the benefits in question and after mediation had failed and the arbitration process had commenced). In a letter dated May 24, 2011, Applicant’s counsel cited and relied upon the cases of Troubitsine¹³ and Velovski.¹⁴

In his submissions before me, counsel for the Applicant argued that the cases relied upon by the Insurer are irrelevant as none of them involved a request for a stay of proceedings by the Insurer. It was also submitted that, under section 33 of the Schedule, the penalty for a breach by an applicant is suspension of the payment of accident benefits. In light of that provision, it ought to be inferred that no other remedy (such as a stay of proceedings) was intended. Finally, it was submitted that the granting of a stay of proceedings is a discretionary and extraordinary remedy that is not appropriate in the circumstances of this case.

ANALYSIS

As of May 2011, section 33 of the Schedule provided that, subject to certain limitations on the number, scope, time and location of the examination, an insured person, if requested, shall submit to an examination under oath in respect of matters relevant to that person’s entitlement to benefits.

Upon receiving the Insurer’s demand, counsel for the three applicants in question wrote to opposing counsel on May 16, 2011 asking for clarification of the reason for and intended scope of the requested examinations under oath.

On May 19, 2011, Insurer’s counsel wrote the following with respect to Iqra Hussein Aweys:¹⁵

We wish to obtain information from your client regarding his claim for attendant care benefits, housekeeping benefits, and an ongoing need for medical benefits and costs of examinations as well as information pertaining to accident benefits to which Mr. Aweys seeks to claim currently or in the near future.

There appears to be relatively little case law on this issue. I shall, below, outline the law on this issue, as I understand it.

Earlier decisions of both the Ontario Superior Court of Justice (Velovski) and FSCO (Balanki¹⁶ and Salah¹⁷) have suggested that there is a great reluctance to impede an insured person from pursuing his or her claim because of an insurer’s desire to gather additional information through an examination under oath.

In Velovski, Justice Keenan felt that it would be unfair to the plaintiff (the insured person) and inconsistent with the court’s simplified procedures to inject into its process a requirement that the plaintiff undergo an examination under oath.

In Balanki, Arbitrator Muir pointed out the differences between a request for a medical examination and a request for an examination under oath and suggested that a stay (or adjournment pending attendance) on the basis of a failure to undergo a medical assessment would typically only be granted where there could be demonstrated by the insurer that, in the particular circumstances of the case, there was a “potential for significant unfairness, bordering on an abuse of process.”¹⁸ Arbitrator Muir suggested that it would be much more difficult for an insurer to demonstrate the same type of potential unfairness where an insured person refused to submit to an examination under oath. Arbitrator Muir also suggested that while there might well be consequences for failing to submit to an examination under oath (such as the suspension or disentitlement to the benefits claimed for the period of non-compliance), depriving the insured person of access to FSCO’s dispute resolution process (through a stay or adjournment) would rarely be an appropriate remedy. Arbitrator Muir pointed out that, whereas failure to attend an insurer’s medical examination is specifically made a bar under the Schedule to commencing mediation (the first step in FSCO’s dispute resolution process), failure to submit to an examination under oath carries no such explicit consequences. That remains true today.

In Balvers (and two other cases heard with it), an insurer was seeking direction from the Court as to the nature and scope of an insurer’s right to examination under oath of a claimant pursuant to section 33 of the Schedule. The insured person in that case did attend the examination under oath but, on the advice of counsel, refused to answer certain questions. Ultimately, Justice Stewart ordered the insured person to re-attend at an examination under oath and to answer certain questions. What is significant about this decision is the emphasis by Justice Stewart on the statutory obligation on an insured person to co-operate and make prompt, full and fair disclosure to the insurer. Since the right of an insurer to conduct an examination under oath is provided for by statute and is broader in scope than an examination that may be permitted under the Rules of Civil Procedure, Justice Stewart found that the insurer’s right to conduct such an examination under oath under section 33 of the Schedule is independent of, and is not extinguished by, the commencement of litigation by an insured person.

In Baig, the Ontario Court of Appeal had an opportunity to consider an insurer’s right to conduct an examination under oath under a different statutory provision (i.e., not under section 33 of the Schedule). The Court of Appeal considered and approved of the reasoning in Balvers and agreed that a statutory right to conduct an examination under oath is not extinguished with the commencement of a civil action. The Court granted an order that, inter alia, compelled Baig to attend an examination under oath and to answer certain relevant questions.

In Echelon General Insurance Company v. Henry,¹⁹ the Superior Court of Justice followed the Balvers decision and clarified that an insurer’s right to conduct an examination under oath under section 33 of the Schedule is not extinguished by either a denial or termination of payment of a particular benefit or the commencement of litigation.

This issue has most recently and thoroughly been considered by Director’s Delegate Blackman in Troubitsine. While this case turns largely upon deficiencies in the insurer’s notice to the insured person, what is more germane to the present case are the comments of the Director’s Delegate as to the extraordinary nature of a stay of proceedings and the need for an insurer to establish, amongst other things, that the facts of the particular case warrant the granting of such a remedy in order to prevent “an actual specified abuse of the adjudicative process.”²⁰

In summary, an insurer’s right to conduct an examination under oath is not extinguished by either a denial or termination of payment of a particular benefit or the commencement of litigation. How an insurer enforces this right is a different question however. Where an insurer seeks to effectively compel attendance of an insured person at an examination under oath by seeking a stay of proceedings at FSCO, the insurer should be prepared to adduce evidence sufficient to prove, on a balance of probabilities, that the granting of a stay/adjournment is necessary to prevent an abuse of process (as well as addressing the other criteria listed at the end of the Troubitsine decision).

I am bound by the Troubitsine decision. A stay of proceedings will remain a relatively rare remedy that is reserved for those cases where it is necessary to prevent substantial unfairness that is tantamount to an abuse of process.

Counsel who appeared on this motion spent very little time on this issue (i.e., the granting of a stay because of the failure of the Applicant to undergo an examination under oath). Little evidence has been adduced by the Insurer to explain why it is seeking to conduct the examination in question. In his affidavit, Steve White, Director of Accident Benefits for Intact, swears that the examination under oath was requested to “actively adjust the file in good faith” and “obtain information Intact has been requesting.” No further particulars have been provided. I have not been provided with details of what information has been provided to the Insurer to date and what additional information it hopes to obtain through an examination under oath of the Applicant.

The test for granting a stay (or adjournment pending attendance) has been described in different decisions as proof of “significant unfairness” or “abuse of process” or, according to the RJR-MacDonald decision, evidence that the party seeking the stay will suffer “irreparable harm” if the stay is not granted. Whichever way this test is expressed, there is an evidentiary burden upon the moving party and, in this case, I find that the Insurer has failed to meet that burden. Assuming, without deciding, that the Insurer served upon the Applicant a notice to attend an examination under oath that satisfies the requirements of the Schedule,²¹ I find that the Insurer has failed to establish that the granting of a stay of this proceeding is an appropriate remedy in this case.

CONCLUSION:

The granting of a stay of proceedings (or an adjournment) is discretionary. In the circumstances of this case, for the reasons set out above, I am not persuaded that such an order is appropriate. The Insurer’s motion shall be dismissed.

March 19, 2012

Richard Feldman

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 35

FSCO A10-004067

BETWEEN:

IQRA HUSSEIN AWEYS

Applicant

and

INTACT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Insurer’s motion is dismissed.

March 19, 2012

Richard Feldman

Arbitrator

Date

APPENDIX “A”

Applicant’s Name

Insurance Company

FSCO File No.

Aweys, Iqra Hussein, Ms.

Intact Insurance Company

A10-004067

Aweys, Munira Hussein, Mrs.

Intact Insurance Company

A11-000012

Benjamin, Henrick Archer, Mr.

Belair Insurance Company Inc.

A11-002294

Colquhoun, Annmarie, Ms.

Intact Insurance Company

A11-001320

Dawood, Najib, Mr.

Intact Insurance Company

A11-001742

Facey, Douglas, Mr.

Intact Insurance Company

A11-002826

Forisiuk, Sergei, Mr.

Belair Insurance Company Inc.

A11-000954

Green, Charmaine Marie, Mrs.

Belair Insurance Company Inc.

A11-000765

Horban, Volodymyr, Mr.

Belair Insurance Company Inc.

A11-003788

Jeylani, Abu Abdulkadir, Mr.

Intact Insurance Company

A10-004065

Lowndes, Ruben, Mr.

Belair Insurance Company Inc.

A11-000957

Mohamed, Osman, Mr.

Belair Insurance Company Inc.

A11-003781

Quezada, Dennys Eduardo, Mr.

Intact Insurance Company

A11-001274

Quezada-Barquero, Edwin, Mr.

Intact Insurance Company

A11-001446

Wilson-Durston, Carmen, Mrs.

Intact Insurance Company

A11-002825

Footnotes

1. 1In its Notice of Motion, the Insurer seeks a stay of these proceedings under section 21 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) which permits a tribunal to adjourn a hearing where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held. In oral submissions before me, counsel for the Insurer relied, in the alternative, upon section 23 of the SPPA (see Tab 1, p.2 of the Insurer's Brief of Authorities), which permits a tribunal to make such orders or give such directions as it considers proper to prevent abuse of its processes.
2. 2There are four related insurance companies that are involved in these matters and that are acting in concert: Belair Insurance Company Inc. (“Belair”), Intact Insurance Company (“Intact”), the Nordic Insurance Company of Canada (“Nordic”) and Trafalgar Insurance Company of Canada (“Trafalgar”). In the fifteen cases before me, the named respondent is either Belair or Intact. Throughout this decision, the term “Insurer” is intended to refer to this related group of four insurance companies and each member thereof.
3. 3See Appendix “A” to this decision for a list of the fifteen cases.
4. 4The parties originally agreed to have eleven such motions heard together but counsel for the Insurer sought to have an additional four cases added and, ultimately, counsel for the Applicants (the same counsel who represented all fifteen Applicants) did not oppose this request.
5. 5i.e., claims made for services provided by the Facilities or other claims in which the Applicant relies upon an opinion from one or more of the Facilities.
6. 6The Insurer relies upon section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for this proposition, as well as the cases of Keffer and Wawanesa Insurance Company (FSCO A07-000940, April 3, 2009) (“Keffer”); King and Royal Insurance Company of Canada (FSCO A98-000234, March 24, 1999) (“King”); and Non-Marine Underwriters, Mbrs. of Lloyd’s and Mangat (FSCO Appeal P00-00020, August 1, 2000) (“Mangat”).
7. 7For this proposition, the Insurer relies upon the cases of: Carpenter and Farmers' Mutual Insurance Co. (FSCO A07-001980, July 31, 2008) (“Carpenter”); Balanki and Zurich Insurance Co. (FSCO A04-002286, April 11, 2005) (“Balanki”); F.S. and Belair Insurance Co. (OIC P96-00039A, June 11, 1996) (“F.S.”); and Martucci and Economical Mutual Insurance Co. (FSCO A06-000207, May 8, 2007) (“Martucci”).
8. 8RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 43. Note that the Supreme Court of Canada makes it clear (at para. 77) that this test applies not just to Charter cases but to private law cases as well.
9. 9RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 84.
10. 10i.e., where the applicant is seeking to have some claims for accident benefits adjudicated at FSCO while seeking to have other claims for accident benefits arising from the same accident adjudicated in court.
11. 11Aviva Insurance Company of Canada v. Balvers, 2007 CanLII 17193 (Ont. S.C.J.) (“Balvers”).
12. 12Baig v. The Guarantee Company of North America, 2007 ONCA 847 (“Baig”).
13. 13Troubitsine and TTC Insurance Company (FSCO Appeal P09-00019, January 14, 2010) (“Troubitsine”).
14. 14Velovski v. Aviva Canada Inc., 2005 CanLII 33585 (Ont. S.C.J.) (“Velovski”).
15. 15It is unclear whether similar letters were sent with respect to Munira Hussein Aweys and Abu Abdulkadir Jeylani as such letters are not included as exhibits to the Affidavit of Steve White.
16. 16Balanki and Zurich Insurance Company (FSCO A04-002286, April 11, 2005).
17. 17Salah and State Farm Mutual Automobile Insurance Company (FSCO A04-000210, November 2, 2005), in which the reasoning from Balanki was adopted.
18. 18Balanki and Zurich Insurance Company (FSCO A04-002286, April 11, 2005) at pp. 8-9.
19. 192011 ONSC 3673.
20. 20Troubitsine at p. 14.
21. 21i.e., the requirements as to form and content, as further explained in Troubitsine.