Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 145
Appeal P14-00010
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JEYAPALAN SUBRAMANIAM
Appellant
and
WAWANESA MUTUAL INSURANCE COMPANY
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
Robert G. Plate for Mr. Jeyapalan Subramaniam
J. Claude Blouin for Wawanesa Mutual Insurance Company
HEARING DATE:
January 16, 2015
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal of the Arbitrator’s Variation order dated February 28, 2014 is allowed, the decision is rescinded, and paragraph 1 thereof is replaced with the following:
The Application for Variation of the Arbitrator’s order dated July 13, 2012 is dismissed.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested pursuant to the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014), but as set out below and within 45 days of the date of this decision.
July 7, 2015
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Mr. Subramaniam appeals Arbitrator Sone’s Variation order dated February 28, 2014. The Variation/Revocation application dealt with the decision of Arbitrator Rogers dated July 13, 2012 ordering Wawanesa Mutual Insurance Company to pay income replacement benefits (IRBs) under the SABS–1996.1 Arbitrator Sone (“the Arbitrator”) varied the decision to allow Wawanesa to deduct from the IRBs, Canada Pension Plan disability benefits Mr. Subramaniam had started receiving before the end of the arbitration hearing.
The variation application was brought by Wawanesa. The Arbitrator’s variation decision was based upon Mr. Subramaniam’s Response to the Variation Application and Wawanesa’s written submissions; there was no hearing, oral or otherwise. She found that it appeared Mr. Subramaniam had not disclosed that he had started to receive CPP disability benefits part way through the initial arbitration hearing before Arbitrator Rogers. She found this non-disclosure met one of the criteria for variation under s. 284(3) of the Insurance Act, namely evidence not available at the arbitration hearing had become available. Accordingly, she varied Arbitrator Rogers’ order to add the CPP deduction.
Mr. Subramaniam appeals on both procedural fairness and substantive grounds. He submits that he was entitled to a notice of hearing and that Arbitrator Sone made a finding of fact in the absence of evidence.
Mr. Subramaniam’s counsel at the arbitration hearing, Mr. David Wilson, provided an affidavit. I accepted it because I was persuaded that the evidence in it might be credible but more importantly might be relevant to the natural justice issue. Wawanesa did not cross-examine Mr. Wilson on the affidavit. Because Mr. Wilson provided evidence, Mr. Subramaniam was represented at the hearing by Mr. Robert Plate.
II. BACKGROUND
Mr. Jeyapalan Subramaniam was injured in a motor vehicle accident on January 22, 2008. Wawanesa initially paid IRBs but terminated them August 14, 2010. The dispute about IRBs, along with other disputes, came before Arbitrator Rogers.
The arbitration hearing before him started in early 2011 and continued March 26 to 29, 2012 and April 2 and 3, 2012.
In the interim, Mr. Subramaniam’s Application for Canada Pension Disability Benefits was approved, and he was paid a monthly benefit commencing September, 2010. No evidence about the receipt of those benefits was led before Arbitrator Rogers by either party.
In his decision dated July 13, 2012, Arbitrator Rogers found that Mr. Subramaniam was entitled to ongoing weekly IRBs of $362.29 from August 1