Intact Insurance Company and Belair Insurance Company Inc. v. Iqra Hussein Aweys et al., 2013 ONFSCDRS 19

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2013 ONFSCDRS 19

Appeal P12-00007 – P12-00021

OFFICE OF THE DIRECTOR OF ARBITRATIONS

INTACT INSURANCE COMPANY AND BELAIR INSURANCE COMPANY INC.

Appellants

and

IQRA HUSSEIN AWEYS, MUNIRA HUSSEIN AWEYS, HENRICK ARCHER BENJAMIN, ANNMARIE COLQUHOUN, NAJIB DAWOOD, DOUGLAS FACEY, SERGEI FORISIUK, CHARMAINE MARIE GREEN, VOLODYMYR HORBAN, ABU ABDULKADIR JEYLANI, RUBEN LOWNDES, OSMAN MOHAMED, DENNYS EDUARDO QUEZADA, EDWIN QUEZADA-BARQUERO AND CARMEN WILSON-DURSTON

Respondents

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. Eric K. Grossman for the Appellants Intact Insurance Company and Belair Insurance Company Inc.

Mr. Marko Djukic for the Respondents Volodymyr Horban, Dennys Eduardo Quezada and Edwin Quezada-Barquero

Mr. Harley Kruger for the Respondents Annmarie Colquhoun and Charmaine Marie Green, formerly represented by Mr. Marko Djukic

Mr. Alan Honner for the Respondent Ruben Lowndes, formerly represented by Mr. Marko Djukic

Mr. Alexander Mazin for the Respondents Iqra Hussein Aweys, Munira Hussein Aweys, Henrick Archer Benjamin, Najib Dawood, Douglas Facey, Abu Abdulkadir Jeylani, Osman Mohamed, and Carmen Wilson-Durston, formerly represented by Mr. Marko Djukic

Mr. Jonathan M. Burton for the Respondent Sergei Forisiuk

HEARING DATES:

November 14, 2012 and January 11, 2013

APPEAL ORDER

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

Financial Services Commission of Ontario

Intact et al. and Aweys et al.

Appeal Orders P12-00007-P12-00021

1. The Arbitrator’s fifteen decisions dated March 19, 2012 are confirmed and these appeals are dismissed.

2. If the parties cannot agree on the legal expenses of these appeals, amending Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated − August 2011) as requested, an expense hearing shall be requested, as set out below, within forty-five days of the release of the full reasons in this decision.

February 1, 2013

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND AND NATURE OF THE APPEAL

The Appellants, Belair Insurance Company and Intact Insurance Company, brought a December 19, 2011 motion to stay the individual arbitrations of fifteen insured persons (the “Respondents”). In the alternative, the Appellants sought a stay of all issues in those arbitrations relating directly or indirectly to Assessment Direct Inc., Osler Rehabilitation Centre Inc. or Metro Rehabilitation Centre Inc. (the “Clinics”).

The motion was brought under sections 21 (adjournments) and 23 (powers re control of proceedings) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), the stay to remain in effect until the determination of Ontario Superior Court of Justice Court File #CV-11-428030 (the “Court Action”). That action, seeking $15 million in damages, included the Appellants as plaintiffs and the Clinics, their officers and directors as defendants.

The Court Action lists the claims of 217 insured persons in a Schedule “A,” including the Respondents. The Court Action alleges that the defendants engaged in misconduct regarding these claims to secure payment from the plaintiffs to which they knew they were not entitled. The allegations include inundating the plaintiffs with treatment and assessment requests and submitting invoices for services not performed or for greater than their actual cost.

The Appellants’ motion relied, in part, on Non-Marine Underwriters, Mbrs. of Lloyd's and Mangat, (FSCO P00-00020, August 1, 2000) and related cases regarding avoiding multiple proceedings, as well as the argument that the criteria for an interlocutory injunction set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, applied equally to the requested stay.

In his fifteen decisions dated March 19, 2012, Arbitrator Feldman (the “Arbitrator”) rejected the Appellants’ motion. Applying RJR-MacDonald, the Arbitrator held that the Appellants had failed to establish, on a balance of probabilities, that they would suffer irreparable harm if a stay was not granted. The Arbitrator found that there was insufficient evidence that the cost of defending these arbitrations would be unrecoverable or that additional expense constituted irreparable harm. The Arbitrator was further not persuaded that allowing the cases to proceed to be heard on their merits would constitute an abuse of process, finding no convincing evidence that any of the individual Respondents had engaged in any alleged misconduct.

The Appellants appeal the Arbitrator’s decisions. They now, however, seek a stay pending resolution not only of the Court Action but also charges laid May 24, 2012 by the Financial Services Commission of Ontario, include against Assessment Direct Inc.

At the November 14, 2012 oral hearing, the Appellants stated that of the actually 218 insured persons whose claims are listed in the Court Action, 92 are now applicants in arbitration. Of these, 24 are represented by Mazin Rooz Mazin, including 14 of the 15 Respondents. Ipacs Law Office represents 32, Lofranco Correiro Personal Injury Lawyers represent 12 and Alan S. Blott Q.C. Professional Corporation of Lawyers, 9. Fifteen are represented by other law firms. The Appellants submit the individual insured persons are merely “dupes” of the Clinics.

On January 11, 2013, I was advised that the law firm of Mazin Rooz Mazin had dissolved. Three Respondents are now represented on appeal by counsel at Rooz Law Professional Corporation; eight are represented by Mr. Alexander Mazin. Three Respondents, Volodymyr Horban, Dennys Eduardo Quezada and Edwin Quezada-Barquero, are now self-represented at arbitration, Mazin Rooz Mazin having been allowed off the record. However, no such motion has been brought at the appeal level and these Respondents remain represented by Mr. Djukic.

I was further advised that a motion was returnable January 25, 2013 to dismiss Mr. Horban’s arbitration and that similar motions are underway at arbitration regarding the other two self-represented Respondents.

The Appellants advise that the Court Action, issued June 6, 2011, is still at the pleadings stage. However, based on privileged instructions counsel could not divulge, the Appellants anticipate the Court Action will now proceed much quicker, although trial is not anticipated before 2014.

The Appellants contend that the Court Action will end the Clinics. While the Court Action may not technically dispose of all of the issues in arbitration, the Appellants submit the insureds would be hard pressed to argue that the court decision should be ignored and that each case should be decided on its own individual merits. If the Court, for example, accepts that the insured persons did not see the authors of supporting reports generated by the Clinics, who simply filled out 30 to 50 documents at a time and affixed an electronic signature, it is not possible that these same practitioners could support these individual arbitration claims.

The Appellants argue that if these appeals are allowed, counsel in some of the other pending arbitrations will simply agree to a stay. Where a stay is resisted, further motions will be brought.

The Appellants do not, on appeal, raise the Mangat arguments, nor do they advance any case law specific to sections 21 or 23 of the SPPA. Rather, the thrust of the appeal is that the Arbitrator erred in applying RJR-MacDonald rather than the criteria for a stay set out in Guardian Insurance Company of Canada and Armstrong, (FSCO P00-00037, July 20, 2000). The Appellants concede that Armstrong was not argued before the Arbitrator. In the alternative, the Appellants submit that the Arbitrator misapplied RJR-MacDonald.

I am not persuaded that Armstrong is applicable to this case. I am further not persuaded that the Arbitrator, in applying RJR-MacDonald, erred in law in his decisions. Accordingly, the Arbitrator’s decisions dated March 19, 2012 are confirmed and these appeals are dismissed.

II. FRESH EVIDENCE

The Appellants sought on appeal to introduce two items of fresh evidence. Delegate McMahon, in Budd and Personal Insurance Company of Canada, (FSCO P99-00032, January 8, 2000), adopted the following criteria on whether fresh evidence should be accepted on appeal:

• The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

• The evidence must be credible, in the sense that it is reasonably capable of belief;

• The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and,

• The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The Appellants first wished to introduce a May 24, 2012 College of Chiropractors of Ontario’s decision suspending Dr. L. Kushnir, D.C., for three months. In part, Dr. Kushnir was found guilty of unprofessional conduct. The charges arise out of a complaint that Dr. Kushnir did not meet with an insured person for the purpose of the assessments he submitted to an insurer for payment and in support of certain benefits. The Appellants argue that Dr. Kushnir has worked with the Clinics and that his reports form the basis of ten of the fifteen Respondents’ claims.

The Appellants submit that this disciplinary decision was released after the Arbitrator’s decisions and, hence, was not available when the motions were argued. The evidence is credible as it follows a detailed investigation by a governing body of a regulated health profession. The decision is relevant as the credibility of Dr. Kushnir’s reports is in question, and it creates a reasonable expectation he may not have conducted assessments as stated in his reports. Further, Dr. Kushnir was convicted of the same mischief alleged in these proceedings. The Appellants submit that without Dr. Kushnir’s reports there is no medical foundation for ten of the fifteen arbitrations and it is probable this evidence would have affected the Arbitrator’s determination.

In Murtty and Security National Insurance Co./Monnex Insurance Mgmt. Inc., (FSCO P11-00022, July 19, 2012), I held that an issued decision regarding an issue of law was not evidence and leave to admit as fresh evidence was, therefore, not required.

However, in Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), Justice Spiegel cited R. v. Ghorvei, 1999 CanLII 2475 (ON CA), (1999), 46 O.R. (3d) 63 (C.A.):

In R v. Ghorvei… the appellant sought to introduce as fresh evidence on appeal, a transcript of a previous trial wherein the main police witness in Ghorvei had been the subject of the following comment by the trial judge, “I find that this officer is a compulsive liar. I do not believe his evidence at all.”…The Court in Ghorvei, after setting out the well-known criteria for the admission of fresh evidence, made the following statement:

The determining issue, therefore, is whether the evidence could reasonably be expected to have affected the result at trial. Of course, it could only have had any effect on the result if it could have been used at trial to impeach Constable Nielsen’s credibility.

In ruling against allowing this line of cross-examination the court stated:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case.

Justice Spiegel held that he was bound by the Court of Appeal. Arbitrators and Appellate Officers are likewise bound. In this case, I am not aware that Dr. Kushnir has been examined in any of these proceedings. Allowing the decision as fresh evidence as to Dr. Kushnir’s credibility would seemingly breach, as set out in Sharma and Pilot Insurance Company, (FSCO P96-00021, May 14, 1998), “the evidentiary rule in Browne v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67, requiring a cross-examiner who intends to impeach the credibility of a witness by means of extrinsic evidence to confront the witness with the evidence.”

While I am prepared to receive the College of Chiropractors’ decision, on the basis of Ghorvei and Browne v. Dunn, I do not see how one can, especially at this stage, accept the disciplinary decision as fresh evidence regarding Dr. Kushnir’s credibility or lack of credibility.

The Appellants further seek to introduce as fresh evidence the Commission’s May 25, 2012 news release that five treatment clinics and ten individuals have been charged with knowingly making false or misleading statements to an auto insurer to obtain payment for goods and services provided to an insured and engaging in an unfair or deceptive act or practice. One of the clinics is Assessment Direct Inc., a defendant in the Court Action whom the Appellants state is an assessment provider in each of these fifteen arbitration claims.

The Appellants submit that the news release is similar fact evidence regarding the credibility of Assessment Direct’s reports and treatment requests, that the news release is relevant, bearing upon decisive or potentially decisive issues in the arbitrations where the Appellants’ allegations are effectively the same as the charges brought by the Commission, and that the evidence could not have been adduced at the arbitration motion because the charges were subsequently laid. The Appellants further argue that the evidence is credible and it is reasonable to expect that if the Arbitrator had this evidence before him, it may have affected his decision.

The Respondents argue that the fresh evidence does not establish irreparable harm to the Appellants or establish abuse of process by the Respondents and, accordingly, is not relevant and, when taken with the other evidence before the Arbitrator, could not have reasonably been expected to have affected the Arbitrator’s decision.

I accept that this news release that followed the Arbitrator’s decisions could not, with due diligence, have been adduced at the motion. I accept the news release as fresh evidence that charges have been laid against Assessment Direct, but they have not yet been proven in court.

III. APPELLANTS’ SUBMISSIONS

The Appellants submit that the thrust of their defence in these arbitrations is showing evidence of commonality to establish the scheme perpetrated by the Clinics in inundating the Appellants with unending assessments and treatments. The Appellants submit that they are prejudiced from defending these cases at the Commission as the two or three day hearings to which they may be restricted are insufficient to marshal the necessary broad scope evidence of institutional abuse by the Clinics. Rather, week are required, if not more, in each matter. If the evidence is restricted to each individual insured, then each case simply becomes a contest between competing experts.

The Appellants submit that the Commission has asked insurers to be more proactive in fighting fraud. However, they argue that insurers cannot attack abuse without approaching matters systematically, which the Respondents do not want. The Appellants provide two grounds of appeal to overturn the Arbitrator’s decisions and prevent the Commission from playing, it is submitted, “into the hands of the black hats in this story.”

1. Guardian Insurance Company of Canada and Armstrong

Subsection 283(6) of the Insurance Act provides that an appeal does not stay the order of an arbitrator, unless decided otherwise. In Guardian Insurance Company of Canada and Armstrong,

(FSCO P00-00037, July 20, 2000), Delegate McMahon adopted the following criteria in determining whether to grant a stay:

1. The bona fides of the appeal;

2. The substance of the grounds for appeal; and,

3. The hardship to the respective parties if the stay is granted or refused.

The Appellants submit that subsection 283(6) of the Insurance Act applies not just to appellate stays of arbitration orders but to stays generally at either adjudicative level.

The Appellants argue that the Arbitrator erred in law in applying RJR-MacDonald rather than the appeal decision in Armstrong that was binding on him, notwithstanding that at arbitration the Appellants did not argue Armstrong and relied on RJR-Macdonald. Although Armstrong addresses a stay under the Insurance Act, the Appellants argue that it still addresses a stay and its less stringent criteria are more on point than the interlocutory injunction RJR-MacDonald addressed.

The Appellants submit that if it is accepted that Armstrong is more applicable than RJR-MacDonald, the criterion of irreparable harm required in the latter does not have to be addressed. The Appellants argue that my June 18, 2012 preliminary appeal order accepted that the appeals were bona fides and that they raised a novel area of law.

The only remaining criterion then, it is argued, would be relative hardship. The Appellants submit that the individual Respondents are not the true claimants in these proceedings. In any event, they state that the Respondents raised no evidence of any hardship. Any prejudice to the Respondents would be cured by pre-judgment interest and/or a special award.

The Appellants argue that they would face enormous expense in having to make the same or similar arguments in all fifteen arbitrations. That would be avoided by having the issues dealt with in the Court Action. Not granting the requested stays allows these claims to proceed notwithstanding allegations the claims are an abuse of process and that the treatment and assessments did not occur or that they were not medically required.

The only case the Appellants provided in support of their assertion as to Armstrong’s general applicability was B and RBC General Insurance Company, (FSCO P09-00005, April 15, 2009), that stayed an arbitration expense hearing. The Appellants submitted that there was also a Small Claims Court case, where counsel appeared, where a stay was granted, but they did not have a copy of the endorsement.

2. RJR-MacDonald Inc. v. Canada (Attorney General)

In the alternative, the Appellants argue that a stay is available as interim relief available at the Commission based on the criteria in RJR-MacDonald. The three-part test in RJR-MacDonald for an interlocutory injunction is:

1. Is there a serious issue to be tried?

2. Will the applicant suffer irreparable harm if the application is refused?

3. The harm must be balanced as between the parties.

The Appellants argue that the applicability of RJR-MacDonald to administrative tribunals is well documented, having been applied by Arbitrator Wilson in Nguyen and State Farm Mutual Automobile Insurance Company, (FSCO A05-000305, December 22, 2005), and Arbitrator Renahan in Kulasekarampillai and State Farm Mutual Automobile Insurance Company, (FSCO A03-001063, January 21, 2004).

Regarding the first criterion, the Appellants argue that a prima facie case need not be made. Rather, the adjudicator must be satisfied that the claim is not frivolous or vexatious. The Appellants submit that the Arbitrator found that this part of the test had been met. In any event, they argue that they have established a prima facie case of systemic abuse in each of the fifteen arbitrations. As such, there would be no prejudice to having these fifteen matters stayed pending both the charges laid by the Commission and the determination of the court action, the Court Action being best suited to address the issues of abuse that have been pleaded.

The Appellants submit that the Arbitrator erred regarding the applicability of RJR-MacDonald as follows:

1. The Arbitrator incorrectly applied the second part of RJR-MacDonald by not acknowledging that a monetary loss can be considered an irreparable harm.

The Appellants argue that all three criteria set out in RJR-MacDonald must be addressed and that the Arbitrator erred in placing too much emphasis on the criterion of irreparable harm without properly discerning what it meant.

The Appellants submit that irreparable harm means the nature of the harm suffered rather than the magnitude of the harm. It is harm that cannot be quantified or cured in monetary terms, usually because one party cannot collect damages from another. Thus, while RJR-MacDonald found that strict monetary loss does not constitute irreparable harm, it held it was still appropriate to presume irreparable harm so long as it was unclear that a strict monetary loss would be recovered at the time of the decision on its merits.

The Appellants argue that their monetary loss in these cases is, firstly, the benefits they may be ordered to pay the Respondents “due to the inherent limitations and focus of the proceedings” where arbitrators may limit the scope of the Appellants’ evidence. The Appellants maintain that the Court Action allows for recovery of medical/rehabilitation expenses, but not housekeeping, attendant care, caregiver, income replacement or other benefits that may be ordered paid on the basis of the reports generated by the Clinics.

The Appellants argue that their monetary loss also includes duplication in process. They submit that the Arbitrator erred in finding there was insufficient evidence to indicate that they would sustain irreparable harm. Rather, there was unchallenged evidence that if the stays are not granted, the Appellants would have to call evidence separately in each matter to establish, from a broader perspective, widespread and systemic abuse by the Clinics.

The Appellants, in this regard, cite Muskwachees Ambulance Authority Ltd. v. Canadian Union

of Public Employees, Local 3197, 2007 ABQB 670, that held that monetary loss was an irreparable harm where a duplication of hearings might result in a loss of resources and time. They also cite Canadian Natural Resources Limited v. Wood Buffalo (Regional Municipality), 2011 ABQB 220, that:

When the issue to be tried is not only serious but affects the very fairness of the administrative proceeding more is at stake than non-recoverable costs and inconvenience. There exists the real possibility of waste, which in turn may threaten to undermine the parties’ and the public’s confidence in the integrity of the administrative and legal systems. It is cold comfort to a taxpayer to be told that despite their complaint of a significant initial error that limits what they may argue, they should just go through a long and expensive process and if they are correct their remedy is to do it again. Similarly, the tribunal works too hard and labours too long to produce a futility.

In combination, however, the unrecoverable costs of processes that may be unnecessary or even potentially unfair, as well as the loss of the use of any funds that have been overpaid, qualify as irreparable harm.

The Appellants further submit that the Arbitrator failed to consider the irreparable harm in there being no prospect of their collecting their legal expenses from the Respondents. Judicial notice, they submit, should be taken that legal expenses available under the Dispute Resolution Practice Code (Fourth Edition, Updated - August 2011) (the “Code”) are but a fraction of a party’s actual costs. Further, they argue, an arbitrator is not able to order legal expenses against the Clinics themselves. The Appellants state that they do not know whether the present statement of claim in the Court Action would encompass these legal costs.

The Appellants argue that another indicator of irreparable harm is the possibility of inconsistent decisions. In any event, the Appellants argue that the Supreme Court has downplayed irreparable harm as a pre-condition.

2. The Arbitrator failed to balance the competing harm to each party set out in the third part of the test in RJR-MacDonald, specifically the Respondents’ failure to adduce any evidence of harm.

The Appellants submit that the trier of fact should not attempt to determine whether actual harm will result from the remedy sought, that “harm does not have to be proven, but has to be possible.”

The Appellants, however, argued that there was actual harm in these cases in allowing the perpetrators of abuse, the Clinics, to continue to place economic pressure on insurers to settle the claims of individual applicants. The Appellants submitted that there need not be actual evidence of such pressure, that allegations that there was such a scheme by the Clinics sufficed.

The Appellants submit that they have heeded the Commission’s advice regarding fighting fraud head on by bringing these stay requests. Instead of being recognized positively for their efforts, denying the stays practically tells the Appellants that their reward is being required to fight each of the 92 arbitrations on a case by case basis.

The Appellants state that they are not seeking a prima facie finding that the Clinics are fraudulent. It suffices that the Arbitrator stated that the Court Action appeared to be meritorious.

In oral submissions, I took judicial note from statistics provided to Commission’s counsel forum and to the insurance companies forum, that while over the past three years more than 30,000 cases a year were received in mediation, the compulsory process prior to arbitration, there were only an average of 40 final arbitration decisions a year issued during the same period.

The Appellants submit that this alternative dispute resolution system has become so expensive, unwieldy and time-consuming that there is far greater impetus on insurers, and probably claimants, to negotiate settlements, even where one party is aggrieved. Payment of whatever minimal amount in exchange for a full and final release may be perceived by some insurers, it is argued, as in their best interest. The Appellants submit that the Superintendent of Financial Services is saying that insurers must stop throwing a few dollars at cases and “start fighting these cases on their merits.”

On the other hand, the Appellants argue that the requested stays inure to the benefit of this alternative dispute resolution system. That is how 30,000 applications for mediation are reduced to 40 final arbitration decisions. The Appellants submit that a significant number of these 30,000 applications for mediation come from service providers who are abusing the system. The effect of not granting a stay is tantamount to the Commission failing to safeguard the public from fraud, resulting in irreparable harm not merely to the Appellants but to the system itself.

Regarding the balance of convenience, the Appellants submit that:

• The Commission may not be the most efficient forum to address these matters. There are many commonalities between the issues in these arbitrations and the Court Action. The Court Action, however, is much broader and the issue of abuse of process is best suited to be heard in that forum.

• The Court Action will impact the arbitrations, as it seeks, in part, (a) a declaration that the defendants have been unjustly enriched at the expense of the plaintiffs; (b) an accounting and disgorgement from the defendants of the entire profit from the conduct described; and, (c) a declaration that the plaintiffs are not required to pay any future or outstanding amounts submitted by the court defendants.

• The arbitrations do not involve discrete, distinct disputes that can be reasonably dealt with separately. Rather, they involve essentially the same issues. The Appellants will have to call identical evidence in each of the 92 separate arbitrations to show similar patterns of activity.

• Without exception, the Respondents rely solely on reports generated by the defendants in the Court Action. If these reports are invalidated by the court, the Respondents will have no evidence upon which their claims can proceed.

• In the absence of a stay, there will be excessive waste of resources in the repetitive calling of the same evidence and the risk of inconsistent findings, all contrary to the stated administrative goal of an efficient, cost effective process.

• The Arbitrator failed to address the affidavit evidence of Mr. S. White, Director of Accident Benefits for Ontario for the Appellant, Intact Insurance Company. Mr. White attested that “none of the individual Applicants have a primary or direct interest in the proceeding” and the true applicants and the controlling minds of these claims are the court Defendants. The Appellants argue that this evidence is not contradicted and must be taken at face value that the individual insureds are “straw men.”

• Not one Respondent brought forward any evidence of hardship caused by the delay of a stay or sought interim benefits by reason of their compelling strong case. There is thus no prejudice in having the arbitrations stayed. If there is any prejudice to the Respondents, it can be compensated by a special award, pre-judgment interest and/or an order for interim benefits.

• Public policy considerations must be taken into account and are critical in weighing the balance of convenience. The Arbitrator agreed the Superintendent had expressed concern over abuse of the no-fault system and the resulting cost to Ontarians. He further agreed that the Superintendent had encouraged insurers to be proactive in combating abuse. Allowing such abuses harms the integrity of the Commission and its mandate of public protection.

Accordingly, the Appellants submit that balance of convenience and public policy considerations demand that these issues be addressed in the Court Action.

3. The Arbitrator failed to apply RJR-MacDonald to his administrative powers under sections 21 and 23 of the SPPA to stay the proceedings and/or make an order as was necessary to prevent an abuse of process. Rather, the Arbitrator adopted a narrow and incorrect construct.

The Appellants argue that Nguyen held that if one of the criteria for relief in RJR-MacDonald, such as irreparable harm or balance of convenience, is not clearly met, one should still consider all the relevant evidence before determining a request for injunctive relief. Nguyen further held that it was not clear that the determination of an interim order under subsection 279(4.1) of the Insurance Act should be framed by the same restrictions and limitations that apply to injunctive relief set out by the Courts.

IV. RESPONDENTS’ ARGUMENTS

The Respondents submit that Armstrong only applies to subsection 283(6) of the Insurance Act where there is a pending arbitration order.

The Respondents state, regarding RJR-MacDonald, that they are not parties to the Court Action. Even their claims for medical/rehabilitation benefits will not be determined in the Court Action. It is self-evident, they submit, that they would be prejudiced if the stays were granted. Further, they submit that the Commission is the most efficient forum to address these individual claims.

In this regard, the Respondents cite Akehurst and Aviva Canada, (FSCO A06-001680, March 27, 2006), that:

… the accident benefit system’s fundamental goal of ensuring “prompt payment of benefits for an injured person's medical and vocational rehabilitation, their care or their day-to-day financial support” [Director's Delegate Naylor in Sebastian v. Canadian Surety Co., [1998] O.F.S.C.I.D. No. 130 (O.F.S.C.).] by encouraging the parties to adhere to the Commission's goal of providing timely hearings and early awards.

The Respondents further argue that the arbitration proceedings are fundamentally different from the Court Action. The arbitrations pertain to benefits sought under the Schedule. The Court Action pertains to the business practices of certain service providers. Thus, the Arbitrator was correct that this is not a situation where the Appellants face the possibility of the Court Action being prejudiced by the Commission’s decisions, creating an issue estoppel.

V. ANALYSIS

In the 15 arbitration proceedings, arbitration hearings have been set in twelve, as follows:

Hearing Dates Scheduled

File(s)

Date hearing was set

No. of Hearing Days Scheduled

Witnesses identified in the Pre-Hearing letter

May 21-23, 27-30, 2013 (initially set for July 9-12, 2012)

I.H. Aweys, M. Aweys and Jeylani

June 26, 2012

7

None

June 10-13, 2013

Lowndes

April 3, 2012

4

For the insured: 4 lay witnesses, a hospital representative and 10 medical doctors. For the insurer: 25 medical personnel at two clinics

June 24-27, 2013

Colquhoun

March 14, 2012

4

For the insured: the insured, herself, 3 service providers and a chiropractor. For the insurer: an occupational therapist, psychologist and orthopaedic surgeon

July 8-12, 2013

Mohamed

September 25, 2012

5

None

July 22-25, 2013

Wilson- Durston

May 10, 2012

4

None

July 29-Aug.1, 2013

Facey

May 10, 2012

4

None

Sept. 23-26, 2013

Benjamin

April 23, 2012

4

None

Oct. 21-24, 2013

Forsiuk

October 23, 2012

4

For the insured: six, including the family physician, an orthopaedic surgeon and a neurologist. For the insurer, an occupational therapist

Dec. 9-12, 2013

Green

November 13, 2012

4

None

Jan. 6 - 9, 13-16, 20-23, 2014 (originally January 2013)

Dawood

December 18, 2012

12

None

As noted, the Respondents Horban, Quezada and Quezada-Barquero are now self-represented in arbitration. The Appellants have brought motions to have these arbitrations dismissed.

The issues in dispute under the Schedule in these 15 arbitration proceedings, other than medical/rehabilitation and cost of examination expenses, are as follows:

File

The document in which the issues are set out

Attendant Care

Housekeeping and Home Maintenance

Caregiver

Income Replacement Benefits / Non-Earner Benefits

I.H. Aweys

pre-hearing letter

Oct. 2009 to Oct. 2011

Oct. 2009 to Oct. 2011

M. Aweys

pre-hearing letter

Oct. 2009 to Oct. 2011

Oct. 2009 to Oct. 2011

Oct. 2009 to Oct. 2011

Benjamin

pre-hearing letter

Dec. 2010 to Dec. 2011

Dec. 2010 to Dec. 2011

to Dec.10, 2011

Colquhoun

pre-hearing letter

July 2009 to July 2011

July 2009 to July 2011

July 2009 to July 2011

Dawood

pre-hearing letter

Nov. 2009 to Nov. 2011

Nov. 2009 to Nov. 2011

Facey

pre-hearing letter

ongoing from Apr. 19, 2010

ongoing from Apr. 19, 2010

from Oct. 18, 2010

Forisiuk

pre-hearing letter

Aug. 2009 to August 2011

Aug. 2009 to August 2011

$400 a week from August 16, 2009

Green

pre-hearing letter

104 weeks post-accident

104 weeks post-accident

Horban

Application for Arbitration

ongoing from May 2010

ongoing from May 2010

Jeylani

pre-hearing letter

Oct. 2009 to Oct. 2011

Oct. 2009 to Oct. 2011

Lowndes

pre-hearing letter

only medical and cost of examination expenses are in dispute

Mohamed

pre-hearing letter

104 weeks post-accident

104 weeks post-accident

$400 ongoing from June 4, 2012

D.E. Quezada

Application for Arbitration

ongoing from Sept. 2009

ongoing from Sept. 2009

E. Quezada- Barquero

Application for Arbitration

ongoing from Sept. 2009

ongoing from Sept. 2009

ongoing from Sept. 2009

Wilson-Durston

pre-hearing letter

only medical and cost of examination expenses are in dispute

I will now address the Appellants’ alternative grounds of appeal, in turn.

1. Guardian Insurance Company of Canada and Armstrong

Subsection 283(6) of the Insurance Act provides:

Order not stayed

(6) An appeal does not stay the order of the arbitrator unless the Director decides otherwise.

Armstrong, upon which the Appellants rely, noted:

The first decision to deal with this provision … was Canadian Home Assurance Company and Scavuzzo, (OIC P-000626, May 2, 1992), a decision of M.P. Richardson. After reviewing a number of civil cases the director’s delegate set out three criteria that should be considered in a stay application. They are:

• 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

Delegate Richardson found it significant that the default position in Commission proceedings under subsection 283(6) of the Insurance Act differed from proceedings to which the SPPA applied and proceedings governed by the Ontario Rules of Civil Procedure. She noted that subsection 25(1) of the SPPA provided:

25.-(1) Unless it is expressly provided to the contrary in the Act under which the proceeding arises, an appeal from a decision of a tribunal to a court or other appellate tribunal operates as a stay in the matter except where the tribunal or the court or other body to which the appeal is taken otherwise orders.

Likewise, she noted that under Rule 63.01(1) of the Rules of Civil Procedure, unless a judge ordered otherwise, the delivery of a notice of appeal operated as an automatic stay of any provision for the payment of money other than a provision that awards support or enforces a support order. Accordingly, Delegate Richardson looked at prior case law under other legislation where there was an absence of an automatic stay upon appeal, similar to [s]ubsection 283(6) of the Insurance Act.¹

Delegate McMahon, in Armstrong, concluded, in part:

The fact that a stay is the exception rather than the rule, suggests to me that the drafters of the legislation recognized that the insurer is in a much better position than the insured person to bear the risks inherent in not staying the arbitrator’s order. This logic is compelling when considering ongoing payments that allow the insured person to pay for the necessaries of life or to obtain treatment.

Zacharias v. Zurich Insurance Company, 2012 ONSC 4209 recently held:

In accordance with an Order in Council dated March 2, 1989, the then Automobile Insurance Board (the “Board”) conducted a lengthy hearing to examine a threshold no-fault system of privately delivered auto insurance. Led by John P. Kruger, the board delivered its report on July 18, 1989. The Kruger Report was addressed to the Lieutenant Governor in Council and was clearly tabled during the legislative process and played a central role in legislative debates.

The Report admonished the insurance industry’s performance in delivering existing no-fault benefits as abysmal, a fact that had been confirmed by Mr. Justice Coulter Osborne in his report on auto accident compensation in Ontario a few months prior, and confirmed by the evidence which was presented to the Kruger commission throughout its investigation. The Board considered it imperative to put in place mechanisms to ensure that no-fault benefits were in fact delivered to insured Ontarians and in accordance with the insurers’ obligations under the contract of insurance … The Board … advocated the adoption of an alternative dispute resolution system that acknowledged the special needs of injured persons requiring rehabilitation …

New York State adopted its no-fault insurance scheme in 1974. It recognized, among other things, that timely payment of benefits would be paramount, given the abrogation of the victims’ rights to sue in tort, and their need for rehabilitation following car accidents. For this reason, New York legislators specified that late payments would be subject to interest at a very high rate to penalize insurance companies for their failure to pay benefits in a timely manner …

In Ontario, the Board recommended the inclusion of “substantial interest penalties for late payment of no-fault benefits”. A penalty of 2 per cent per month, the amount charged in New York, was considered appropriate by the Board …

The Kruger Report recommended that a similar enforcement scheme be adopted in Ontario, noting that “evidence indicated that large interest penalties are quite effective, while lesser penalties, such as those imposed in Michigan, tend to be less effective”: See the Kruger Report at pp. 125-28.

In the initial oral submissions, the Appellants argued that the judge’s decision, now under appeal, “could not be more wrong.”

Subsequently, on November 29, 2012, the Ontario Court of Appeal released its decision in Hurst v. Aviva Insurance Company, 2012 ONCA 837. The appellants in Hurst argued that notwithstanding the lengthy delays in mediation in this dispute resolution system, allowing insured persons to proceed to litigation without waiting for the Commission to actually attempt mediation of their disputes “would effectively gut the statutory scheme for the resolution of such disputes.” They noted FSCO’s effectiveness in resolving some 75% of cases mediated and eliminating “claims that are incomplete, vexatious, or barred by statutory limitation periods”

They further submitted that if all of the claims that would have otherwise gone to mediation are forced into arbitration, the cost to the insurance industry from the additional filing fees alone could amount to $83 million, leading inevitably to upward pressure on insurance premiums.

The Court of Appeal held, in part:

… the appellants’ identification of the statute’s purpose is incomplete. No doubt it is an important purpose of the legislative framework to make mediation mandatory. That, though, is not the whole story. Reading the provisions in their entire context makes clear that the purpose of the legislation is to make mandatory a mediation process that is timely and effective …

The purpose of the legislative scheme of dispute resolution is to mandate a speedy mediation process, conducted and completed on a strict timetable, in order to settle disputes quickly and economically. The speedy mediation process enables insured persons to receive the benefits to which they are entitled without delay. When the legislative purpose is properly characterized to include the timely resolution of disputes, there is no reason to resist the grammatical and ordinary sense of the legislation. Therefore, I do not accept the premise on which the appellants’ entire argument is based … [emphasis in the original]

The Appellants’ submissions regarding this decision were that “the timeliness and effectiveness of mediation would not appear to have any direct bearing on the case before you. As such, I do not see the need to provide further submissions.” The Appellants, however, in their written submissions, cited Rule 1.1 of the Code:

FSCO arbitrations are intended to be the most efficient, time sensitive means by which to adjudicate a dispute. The Rules governing same should be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.

Section 21 and subsection 23(1) of the SPPA provide:

Adjournments

21. A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

Abuse of processes

23. (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

Rule 72 of the Code pertains to adjournments. Rule 72.3 states that in deciding whether an adjournment is appropriate, the adjudicator shall refer to the Adjournments Policy in Practice Note 9. Consistent both with Rule 1.1 of the Code, Zacharias and Hurst, Practice Note 9 states:

FSCO has an obligation to conduct arbitrations efficiently and speedily. Parties are contacted and agree to pre-hearing and hearing dates well in advance of the dates set. Therefore, adjournments are granted only sparingly once dates have been set.

Practice Note 9 further states that adjournments will normally be refused in the absence of a personal emergency such as serious illness or a death in the family, valid reasons relating to the hearing such as an imminent settlement or critical evidence unavoidably delayed or where a lawyer is involved in another proceeding scheduled to end before the start of the Commission proceeding but that has continued past that time.

I find that the above repeated concern regarding a timely, effective and efficient alternative dispute resolution process confirms the restriction of Armstrong to subsection 283(6) of the Insurance Act, that an appeal does not stay the order of the arbitrator unless the Director, or his or her delegate under subsection 6(4) of the Insurance Act, decides otherwise.

Thus B and RBC General Insurance Company, relied upon by the Appellants, was not a case of an arbitrator applying Armstrong to stay or adjourn a proceeding. Rather, in that case, the arbitrator had held, in part, that if the parties could not agree on legal expenses an expense hearing was to be requested in accordance with Rule 79 of the Code, that is, within thirty days of the date of the decision on all of the other issues in dispute.

Specifically exercising my delegated power under subsection 283(6) of the Insurance Act, in B and RBC General Insurance Company, I stayed the expense hearing encompassed by the arbitrator’s expense order, pending the appeal of the arbitrator’s decision. It was anticipated that at the expense hearing the arbitrator was going to be asked, if not to vary her prior order, to vary her prior reasons and/or her findings, essentially turning the arbitration expense hearing into a supplementary re-consideration process. This was contrary to section 286 of the Insurance Act that provides that an arbitrator cannot vary or revoke an order made by him or her and cannot make a new order to replace an order made by him or her if the order is under appeal.

The Appellants concede there is a significant difference between an appellate stay of an arbitration order and an arbitrator staying a proceeding. The application of the limited criteria of Armstrong (specifically meant to apply to stays of first-level decisions) to this case would, contrary to the legislative intent, allow not simply arbitration orders under appeal but arbitrations themselves, where no appeal has been launched, to be put on hold, potentially indefinitely, where a bona fides defence is raised that has substance and, in significant part, a finding is made that the hardship to an insurer of potentially not being able to collect all of its legal expenses of the arbitration outweighed the prejudice to the insureds.

In my view this would, applying Canadian Natural Resources Limited v. Wood Buffalo (Regional Municipality), undermine “the parties’ and the public’s confidence in the integrity” of this alternative dispute resolution system created specifically to quickly and economically resolve cases, not put them on the shelf, sine die, until the applicant gives up and goes away. Accordingly, I am not persuaded that the Arbitrator erred in law by failing to apply the criteria from Armstrong that was never put before him.

3. RJR-MacDonald Inc. v. Canada (Attorney General)

The Appellants argue, in part, that the Arbitrator failed to address the third criterion in RJR-MacDonald. The Appellants submit, at paragraph 47 of their written submissions, that the “balance of convenience and public interest considerations are the third part of the test as set out in RJR-MacDonald.” The Supreme Court held that the factors that must be considered in assessing the balance of inconvenience are numerous and will vary in each individual case. One factor is the public interest. The “applicant must convince the court of the public interest benefits which will flow from the granting of the relief sought.”

On the one hand, there is the submission in these cases that the essence of the defence is exposing fraud. It is in the public interest to judicially expose and properly address cases of fraud. There is also a public interest of a timely, efficient and effective dispute resolution system. I am persuaded that the public interest of a timely dispute resolution system applies equally to arbitration and appeals as it does to the mediation process. I am persuaded that the public interest of exposing and properly addressing cases of fraud is consistent with the public interest in timely, efficient and effective resolution of disputes.

I am not persuaded that the balance of convenience or the public interest favours the Appellants’ request for a stay, for the following reasons:

1. The Court Action, issued more than a year and a half ago, is still at the pleadings stage. The most optimistic expectation, whether realistic or not, is that the Court Action may go to trial in somewhat more than a year.

2. There is no time frame date given as to when the charges laid by the Commission may be heard.

3. Conversely, arbitration hearing dates have been set in twelve of the fifteen arbitrations, to be heard within the next twelve months. The Appellants are moving to have the other three proceedings by now self-represented applicants dismissed.

4. The purpose of special awards under subsection 282(10) of the Insurance Act and pre-judgment interest under the Schedule is to encourage timeliness, not to justify undermining this fundamental goal of this alternative dispute resolution system. To allow these appeals and stay the arbitrations would be to prevent the Appellants themselves from moving to dismiss any of the arbitrations. Concurrently, the Respondents would be precluded from pursuing their claims for statutory accident benefits in a timely fashion. This not merely prejudices the Respondents, as found by the Arbitrator. It is also against the public interest as set out in Akehurst, Sebastian and Zacharias, and by the Court of Appeal in Hurst.

5. The Appellants concede that neither the Court Action nor the charges laid by the Commission will determine any disputed claims in these fifteen arbitrations. The attendant care, housekeeping, caregiver, income replacement and/or non-earner benefits are personal to the individual Respondents, who are not parties to the other proceedings. However, the Appellants further concede that none of the individual claims for medical/rehabilitation or the cost of examinations will be determined by these other proceedings. Rather, the Appellants hope that all of these claims will simply go away.

6. As found by the Arbitrator, these are not cases where an insured person has created a multiplicity of proceedings by splitting his or her case. The Arbitrator further found that there was no convincing evidence before him that the Respondents had engaged in conduct that would amount to an abuse of process.

7. Rather than pre-judging these cases on the basis of the unchallenged opinion of a lay deponent, I am persuaded that it is in the public interest that these allegations of fraud be expeditiously addressed in open, transparent hearings rather than assigned to indeterminate litigation limbo pending their alleged inevitable demise. Addressing concerns regarding the Clinics, as they may relevantly apply in an individual case, should also be expedited so that potential users of their facilities may make educated choices based not on allegations, but on established adjudicated facts.

8. The Arbitrator found that the remedy sought by the Appellants was extraordinary. This was especially so when one considered that the Appellants were seeking a stay of the proceedings because of alleged misconduct not on the part of the Respondents (whom the Appellants refer to as “straw men”) such as creating a multiplicity of proceedings by splitting their cases, but on the part of persons who are not parties to this proceeding.

9. The Arbitrator does address Mr. White’s affidavit. Much of that affidavit pertains to allegations that the individual housekeeping, income replacement, attendant care and/or caregiver claims are without merit. The Appellants submit that the Superintendent of Financial Services is saying that insurers must start fighting these cases “on their merits.” However, these motions seek the exact opposite, that these cases not be decided on their merits as to whether the individual claims meet the requisite statutory tests under the Schedule.

10. Further, as noted by the Arbitrator, this is not a situation where the Appellants face the possibility of the Court Action being prejudiced by the Commission’s decisions on entitlement to and the quantum of benefits available under the Schedule, creating an issue estoppel.

11. Nor, as stated by the Arbitrator, does not granting a stay preclude the Appellants from attacking, at arbitration, the credibility or weight that ought to be given to the opinions of assessors associated with the Clinics.

12. The Arbitrator found that the Appellants failed to establish that they would suffer irreparable harm if a stay was not granted.

This consideration also pertains to the Appellant’s alternate argument that the Arbitrator incorrectly applied RJR-Macdonald in failing to acknowledge that a monetary loss can be considered an irreparable loss.

Delegate McMahon, in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003), stated that a finding of fact made in the complete absence of supporting evidence “is properly characterized as an error of law, and hence reviewable.” A finding of fact made with insufficient evidence, however, is no more than an error of fact, and is not reviewable.

While the Arbitrator held, as pointed out in RJR-MacDonald, that “monetary loss will not usually amount to irreparable harm in private law cases,” he specifically found that the Appellants had failed to adduce evidence sufficient to prove that the cost of defending the arbitrations would be unrecoverable.

The Court Action seeks $15 million in damages, including payments made to which the court defendants were not entitled, monies paid to investigate the claims of the Respondents through whom the defendants advanced their own interests and increased adjusting overhead. I am not persuaded that there was an absence of supporting evidence for the Arbitrator’s finding.

The Appellants submit in part, at paragraph 73 of their written submissions, that if their allegations are correct, the Respondents’ counsel are included in perpetuating an abuse of process. The Arbitrator did not note that subsection 282(11.2) of the Insurance Act provides for the potential liability of legal representatives where, in part, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of an insured person.

The Arbitrator also did not note Royal & SunAlliance Insurance Company of Canada v. Volfson, 2005 CanLII 38902, (leave to appeal denied April 18, 2006). In that case, a representative, without authority, brought an arbitration application in the name of the insured persons. The arbitrator held that she had jurisdiction to prevent abuse of the tribunal’s process by adding the representative as a party and requiring him to compensate those who had been caused expense as a result of his abuse of the process. In restoring the arbitrator’s decision, the Divisional Court stated that it “is inconsistent with the purpose of s. 23 of the Statutory Powers Procedure Act to leave the tribunal without any power in the face of such abuse.”

The Arbitrator also did not note his prior decision in Borissenko and RBC General Insurance Company, (FSCO A05-002801, March 11, 2008), that set out the evolution of legal expenses at the Commission. Before November 1996, arbitration expenses could only be awarded to applicants. Presently, adjudicators may award expenses to either party, presumably, in part, to discourage cases being improperly advanced. Nor did the Arbitrator note that the Code does not provide full compensation for legal costs to any party, either insurers or applicants.

13. In Leitgeb and Allstate Insurance Company of Canada, (OIC P-012407, November 16, 1995), Delegate Draper held that the “focus of the arbitration . . . is on the applicant’s entitlement to benefits, or the proper amount of the benefits. The basis for ordering a special award arises out of that inquiry. The special award provision does not expand the arbitration into a generalized inquiry into the insurer’s conduct.” Rather, the special award in subsection 282(10) of the Insurance Act restricts its inquiry to whether an insurer unreasonably withheld or delayed payments in the individual case at hand.

Section 288 of the Insurance Act provides that the Director of Arbitrations shall review arbitration orders and may recommend that the Superintendent of Financial Services investigate the business practices of an insurer if the Director is of the opinion that any one or more arbitrations or appeals reveal unfair or deceptive business practices.

The Commission has now laid charges regarding the practices of certain treatment providers. There is a Court Action addressing the broader case of alleged fraud of the Clinics. I am not persuaded that each of the 92 present arbitration proceedings need duplicate the Court Action and/or the proceeding commenced by the Commission, that each arbitration turn into weeks or longer of receiving evidence of the general practices of the Clinics, contrary to the limited jurisdiction of adjudicators at the Commission under subsection 279(1) of the Insurance Act.

The Appellants allege that notwithstanding thousands or tens of thousands of dollars billed by the Clinics, some insured persons never attended any treatment at the Clinics. If that is so in an individual case, it is difficult to see how that requires weeks of hearing in an individual arbitration as to the general practices of the Clinics. Likewise, allegations that a Respondent only attended a handful of times but dozens of attendances are claimed, that costs were inflated in an individual case or that repeated sets of sessions failed to help a specific Respondent would also not seem to require weeks of hearing.

I am thus persuaded that it is in the public interest, that the integrity of this alternative dispute resolution system is enhanced and that the balance of convenience favours using this alternative dispute resolution system the way it was intended. That is, having open, transparent, quick, efficient, inexpensive and just hearings that keep within the jurisdictional restriction of subsection 279(1) of the Insurance Act of determining “any insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”

I agree with Director’s Delegate Naylor in Peterson and Royal Insurance Company of Canada, (OIC P-006241, February 6, 1996), reaffirmed in Glynn and General Accident Assurance Company, (OIC P96-00085, March 17, 1997), that “an adjournment is a matter of discretion, not of right,” and “the exercise of an arbitrator’s discretion is not to be interfered with on appeal unless it is clearly wrong or there is substantial reason for doing so.”

I believe that the same reasoning applies to a stay. Applying this case law, I am not persuaded that the Arbitrator erred in law in refusing the fifteen requested stays. Accordingly, the Arbitrator’s fifteen decisions dated March 19, 2012 are confirmed and these appeals are dismissed.

VI. EXPENSES

If the parties cannot agree on the legal expenses of these appeals amending, as requested, Rule 79.1 of the Dispute Resolution Practice Code (Fourth Edition, Updated − August 2011) as allowed under Rule 81, an expense hearing shall be requested, as set out below, within forty-five days of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as submissions on such entitlement or quantum expense issues as are in dispute.

February 1, 2013

Lawrence Blackman Director’s Delegate

Date

¹ Re Great Northern Capital Corporation et al. and City of Toronto et al. (1973), 1973 CanLII 762 (ON HCJ), 1 O.R. (2d) 160 (H.C.), addressed then Rule 506 of the Rules of Civil Procedure that provided, as an exception, that an appeal being set down did not stay the execution of a mandamus issued as part of the appealed judgment. In Gaudet v. Ontario Securities Commission (1990), 38 O.A.C. 216, the Divisional Court addressed an application under section 9(2) of the Securities Act for a stay, pending the hearing of an appeal, of an order of the Ontario Securities Commission. Subsection 9(2) stated that “Notwithstanding that an appeal is taken under this section, the decision appealed from takes effect immediately, but the Commission or the Divisional Court may grant a stay with disposition of the appeal.”