Navarathy Chandrababu v. TD Home and Auto Insurance Company, 2014 ONFSCDRS 34

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 34

FSCO A09-002596

BETWEEN:

NAVARATHY CHANDRABABU

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator Jeffrey Rogers

Heard: By written submissions, completed on February 14, 2014

Appearances: Mr. David S. Wilson, solicitor for Mrs. Chandrababu

Ms. Riva Minhas, solicitor for TD Home and Auto Insurance Company

Issues:

This motion addresses a dispute between the parties regarding the terms of an Arbitrator’s order. The parties settled all issues in this arbitration on the eve of the hearing. The settlement required TD Home to pay ongoing income replacement benefits (IRBs). Mrs. Chandrababu claimed that she was still entitled to an order requiring TD Home to pay ongoing IRBs. TD Home disagreed. That dispute was resolved in a decision dated January 25, 2013. The Arbitrator found that Mrs. Chandrababu was not entitled to an order. He made an order staying the arbitration. His order also set terms for dismissal of the arbitration in January 2014. Mrs. Chandrababu argues that the Arbitrator’s reasons contain an additional term.

The issues are:

In addition to the terms in the order of January 25, 2013, did the Arbitrator reserve the discretion to schedule new hearing dates, if persuaded to do so within 12 months of his order?
If that discretion was reserved, should new hearing dates be scheduled?

Result:

The Arbitrator did not reserve the discretion to schedule new hearing dates, in addition to the terms in the order of January 25, 2013.

EVIDENCE AND ANALYSIS:

As noted above, the parties appeared before the Arbitrator after they had settled all issues in the arbitration. The Arbitrator described the dispute before him as follows:

Important to note at the outset is that, in actuality, the parties resolved ALL of the disputed substantive issues in the course of their settlement. The sole lingering point of contention is whether Mrs. Chandrababu can still proceed to a hearing in order to put evidence before a hearing arbitrator with the sole purpose of having an arbitral order issued for ongoing income replacement benefits.¹

The Arbitrator rejected Mrs. Chandrababu’s argument that she was entitled to pursue an order for payment of IRBs. He issued lengthy reasons for doing so. He also made an order dated January 25, 2013. The order does not include the term that Mrs. Chandrababu now seeks to enforce. The disputed term is only noted in the Arbitrator’s reasons.

I do not accept Mrs. Chandrababu’s submissions. I find that any term or reservation of discretion must be found in the order. The absence of the disputed term from the order is therefore fatal to Mrs. Chandrababu’s argument.

A written order of the Commission may take various forms. But the Rules draw a distinction between reasons and orders. For example, Rule 65.3 provides that “[A]n order which finally decides the issues in dispute will be supported by written reasons.” The Arbitrator specifically confirmed this intent in his reasons. The reasons stated that “[T]he arbitration is stayed pursuant to the terms set out in my Order below.”² In effect, Mrs. Chandrababu’s position is that the Order includes the Reasons. There is no Rule or jurisprudence supporting that position.

The Court of Appeal considered this issue in North York General Hospital Foundation v. Armstrong³. The Court drew a clear distinction between reasons and orders. In that case, a Member of the Ontario Rental Housing Tribunal issued written reasons, along with an order. The parties disagreed about the correctness of a statement of the law contained in the reasons but not in the order. The Foundation sought to challenge the statement on appeal. The Court dismissed the appeal, confirming the decision of the Divisional Court that “[T]he appeal is from the order made by the Tribunal member and not from his reasons.”⁴

The Court then considered the correctness of the statement because the parties had fully argued the issue. The Court concluded that the Member’s interpretation was incorrect. The result was nevertheless dismissal of the appeal, with costs. That result reinforces the distinction between reasons and orders. The relevant circumstances in North York General Hospital Foundation v. Armstrong cannot be distinguished from the facts before me.

If I am wrong and there is no strict distinction between the reasons and the order in the circumstances of this case, Mrs. Chandrababu must still show that the Arbitrator intended to make the order she claims that he made. Mrs. Chandrababu argues that the Arbitrator reserved a general discretion to set new hearing dates within twelve months. I find that the Arbitrator’s order reserved the only discretion envisaged by the reasons.

The relevant section of the reasons states:

Given the above, the remaining question is what the proper and just result is here. I do not believe that the arbitration hearing should proceed at this point in time as there is no “issue in dispute” and proceeding in such a context would be useless, needlessly costly to all parties, wasteful of the Commission’s time, and potentially could lead to mischief. However, if I were to dismiss the arbitration on the basis of its being frivolous, vexatious or an abuse of process at this time, it would not recognize that the parties wanted to keep the FSCO arbitration process alive in the event that they did crystallize a dispute about ongoing income replacement benefits. In these circumstances, I choose to adopt a middle road and to stay the arbitration pending either party demonstrating that there is an active dispute about post-104 income replacement benefits. I will remain seized on this issue.

However, I also find that it is not to anyone’s benefit to keep this file open indefinitely. Thus a term of the stay shall be that, if neither party persuades me within twelve months of the date of my order herein to schedule a new arbitration date, this arbitration shall be dismissed. After that the parties will have no option but to access the full dispute resolution process for disputes, including the requirement to mediate, etc. (Emphasis added)

The only reason the Arbitrator gave for refusing immediate dismissal of the arbitration was to avoid the delay of starting afresh, should a dispute arise about ongoing entitlement to IRBs. The Arbitrator’s order dealt specifically with the issue. He ordered as follows:

Either party may request a resumption of the pre-hearing to schedule new hearing dates to argue Mrs. Chandrababu’s entitlement to income replacement benefits in the event that TD gives notice of its intention to terminate income replacement benefits prior to January 23, 2014.

The Arbitrator then went on to set a term for dismissal of the arbitration if TD did not give notice of intention to terminate IRBs within twelve months. He ordered as follows:

In the event that TD does not terminate Mrs. Chandrababu’s income replacement benefits prior to January 23, 2014, the arbitration shall be dismissed as of that date. In that event each party shall bear its own legal expenses.

The Arbitrator envisaged no other circumstances under which new hearing dates would be set. He set specific terms to address his only concern. That is the context within which the Arbitrator made the “twelve months” statement. I find no foundation in the reasons for the wider discretion Mrs. Chandrababu proposes.

In view of my disposition of this issue, it is not necessary to address the question of how to exercise the additional discretion Mrs. Chandrababu alleges was reserved.

EXPENSES:

The parties did not make submissions on the issue of expenses of this motion. I urge the parties to resolve the issue on their own. If they are unable to do so, I remain seized of the issue as set out in Rule 79 of the Dispute Resolution Practice Code.

February 27, 2014

Jeffrey Rogers

Arbitrator

Date