Sukhdev Singh Randhawa v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 44

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 44

Appeal P15-00064

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SUKHDEV SINGH RANDHAWA Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. William C. Wolfe for the Appellant, Mr. Sukhdev Singh Randhawa Mr. Robert S. Franklin for the Respondent, State Farm Mutual Automobile Insurance Company

HEARING DATE: By written submissions due January 29, 2016

PRELIMINARY ISSUE APPEAL ORDER

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

1. The Arbitrator’s Order effectively decided the substantive issues in dispute. It is, therefore, not a preliminary or interim order. This appeal is thus not rejected under Rules 50.2 and 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014).

2. The Arbitrator’s October 28, 2015 order is not stayed. This Preliminary Issue Appeal Order is without prejudice to the Appellant renewing his stay request if, and when, the Arbitrator issues an arbitration expense order requiring monetary payment.

3. The legal expenses of this preliminary issue appeal decision are deferred to the conclusion of this appeal, subject to any further or other order of an appellate officer.

February 5, 2016

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL AND BACKGROUND

The Appellant, Mr. Sukhdev Singh Randhawa, was paralyzed as a result of a fall on September 18, 2011. The Appellant argues he fell while exiting a car. He, therefore, applied to his first party automobile insurer, the Respondent, State Farm Mutual Automobile Insurance Company, for statutory accident benefits available under the 2010 Schedule.¹

The Respondent argues the Appellant’s fall did not involve the use of an automobile.

In her October 28, 2015 decision on a preliminary issue, Arbitrator Osunde (the “Arbitrator”) found that the Appellant was not injured as a result of an accident as defined in subsection 3(1) of the 2010 Schedule. She stated, in part, that she “found too many inconsistencies in the various testimonies in support of Mr. Randhawa’s theory.”

The Arbitrator held that she could be spoken to within thirty days of her decision regarding the legal expenses of the arbitration.

The November 20, 2015 Notice of Appeal sought leave to appeal the Arbitrator’s preliminary order on the basis it effectively extinguished his right to claim any benefits. The Appellant also sought a stay of any order regarding arbitration expenses until his appeal has been determined. The Appellant argues, in part, that the Arbitrator ignored evidence corroborating his claim.

The Respondent submits that the Notice of Appeal does not raise a question of law. It argues that the Arbitrator’s credibility assessments are factual determinations that should not be reassessed on appeal, there being sufficient evidence upon which the Arbitrator based her findings. Regarding the Appellant’s request for a stay, the Respondent simply states “the Arbitrator’s expense Order should not be stayed.”

II. ANALYSIS

My November 25, 2015 acknowledgement letter noted Rule 56.5 of the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014) (the “Code”) that an appeal may be decided in any manner considered appropriate. Neither party requested, as offered, an opportunity to provide oral argument on the preliminary stay issue in addition to their written submissions. Applying Rule 1.1 of the Code, I find the most expeditious, least costly and most just means of determining whether to grant the requested stay is on the record.

Rule 50.2 of the Code prevents a party appealing a preliminary or interim order of an arbitrator until all of the arbitration issues in dispute have been finally decided, unless ordered otherwise. Under Rule 51.2(c) of the Code, an appellate officer may reject an appeal if it is from a preliminary or interim order that does not finally decide the issues in dispute.

My November 25, 2015 letter found that the Arbitrator’s October 28, 2015 decision, although on a preliminary issue, effectively determined all of the substantive issues, with only legal expenses to be determined. I did not, therefore, see that leave was required for this appeal. The Respondent does not object to this appeal on the basis it is from a preliminary or interim arbitration order. Accordingly, I am not rejecting this appeal under Rules 50.2 and 51.2(c) of the Code. Subsection 283(6) of the Insurance Act, R.S.O.1990, c. I.8, states that an appeal does not stay the arbitrator’s order unless decided otherwise. A stay of the order of an arbitrator is thus the exception, not the rule. Guardian Insurance Company of Canada and Armstrong, (FSCO P00-00037, July 20, 2000), adopted the following criteria as to whether a stay should be granted:

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.

Menard and Royal Insurance Company, (OIC P-001055, October 22, 1992), held that a stay of the arbitration process, affecting the exercise of appellate discretion, must be seen as a rare request requiring special circumstances.

There is no issue as to the bona fides of the appeal.

As to the substance of this appeal, subsection 283(1) of the Insurance Act limits appeals from the order of an arbitrator to questions of law. In Young and Liberty Mutual Insurance Company, (FSCO P03-00043, June 20, 2005), application for judicial review dismissed, 2006 CanLII 7286 (ON S.C.D.C.), Delegate Evans cited Delegate McMahon in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003):

… errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was “no evidence” to support a finding and a mere “insufficiency of evidence.”

The Appellant does not argue that the Arbitrator’s decision was made in the complete absence of supporting evidence. Rather, it appears at this juncture of this appeal that the Appellant’s argument goes to the sufficiency of the evidence. Sufficiency of evidence is not an error of law. I do note, however, regarding this present assessment of the substance of the grounds for appeal, the following comment in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53:

A court considering whether leave should be granted is not adjudicating the merits of the case … A leave court decides only whether the matter warrants granting leave, not whether the appeal will be successful … This is true even where the determination of whether to grant leave involves, as in this case, a preliminary consideration of the question of law at issue. A grant of leave cannot bind or limit the powers of the court hearing the actual appeal …

Regarding the last criterion in Armstrong, I presently have no submissions as to the relative hardship to the parties should a stay be granted or refused.

The Arbitrator has not yet issued an expense payment order. She has merely set the process for determining arbitration legal expenses. The onus of establishing the exceptional remedy of a stay of an arbitrator’s order is on the moving party. Applying the Armstrong criteria, I find the Appellant’s argument for a stay of the Arbitrator’s present expense order to be weak. Combined with the concern noted in Menard that a stay of an arbitrator’s control of the process must be seen as a rare request for an exercise of appellate discretion requiring special circumstances, I am not persuaded to stay the Arbitrator’s order.

However, this Preliminary Issue Appeal Order is without prejudice to the Appellant renewing his stay request, with supporting evidence and argument, if and when the Arbitrator issues an arbitration expense order requiring monetary payment.

III. EXPENSES

The legal expenses of this preliminary issue appeal order are deferred to the conclusion of this appeal, subject to any further or other order of an appellate officer.

February 5, 2016

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.