Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 140

FSCO A16-003255

BETWEEN:

MYLVAGAANAM PONNIAH

Applicant

and

NORTHBRIDGE GENERAL INSURANCE CORPORATION

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers on April 13, 2017

Appearances: Mr. Eric Heath for Mylvagaanam Ponniah Mr. Jason Goodman and Ms. Erica Lewin for Northbridge General Insurance Corporation

Issues:

The Applicant, Mr. Mylvagaanam Ponniah, was injured in a motor vehicle accident on August 29, 2012 and sought accident benefits from Northbridge General Insurance Corporation (“Northbridge”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

A Preliminary Issue Hearing was ordered Arbitrator Mills in the Pre-Hearing Letter, dated October 11, 2016, to determine the issue of whether or not the Applicant is statute-barred from proceeding to Arbitration pursuant to section 61 of the Schedule.

The issues in this Preliminary Issue Hearing are:

1. Is the Applicant statute-barred from proceeding to Arbitration pursuant to section 61 of the Schedule?

2. Is either party entitled to its expenses of the Preliminary Issue Hearing?

Result:

1. The Applicant is not statute-barred from proceeding to Arbitration pursuant to section 61 of the Schedule.

2. The question of expenses related to this Preliminary Issue Hearing is deferred to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Background

The Applicant is a now 63-year-old gentleman who was involved in a serious motor vehicle accident on August 29, 2012 at the U.S. Customs Facility located in Detroit, Michigan. At the time of the accident, he had been hired by Ajar Transline (“Ajar”) to drive a tractor and trailer to California. The signage on the tractor referred to Ajar and the signage on the trailer referred to Transport Lessard 2000 (“Lessard”). The tractor and trailer were stopped at the US Customs Facility where the border services were to open the trailer to inspect the contents and reseal it prior to transport within the US. The Applicant’s co-driver, who was unknown to the Applicant and had been assigned to the job by Ajar, was a gentleman later identified as Chandraruban Ramachandran (“co-driver”). The Applicant testified that at the US Customs Facility stop, he was talking to the US Customs officials when the co-driver reversed the truck and trailer without ensuring that everyone was clear. The Applicant was pinned between the trailer and a wall, suffering serious injuries. The Applicant was taken by ambulance to hospital in Detroit, and transported the next day to a hospital closer to home.

The Applicant submitted an Application for Accident Benefits to Northbridge, dated September 10, 2012.² On December 11, 2012, the Applicant retained Anthony Anushika Professional Corporation (“AAPC”) to represent him in pursuing claims for statutory accident benefits and a tort claim arising from the accident. The Applicant testified that he had retained another firm earlier but, dissatisfied with the service, had moved to AAPC. He testified that he told both firms that his life was gone and he had no income, so he needed to do a tort claim. He needed something for his pain and suffering and help with his life. He received advice on the options available to him as a result of the accident, including benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”). He testified that he was familiar with that system, having received retraining as a truck driver through the Workers’ Safety and Insurance Board (“WSIB”).

On April 19, 2013, while being advised by AAPC, the Applicant executed an Assignment of WSIB Benefits form. It was approved by the WSIB on or about May 29, 2013.³ By that assignment, Northbridge became entitled to receive whatever benefits the Applicant might receive under WSIA, and thereafter, Northbridge began paying benefits under the Schedule.⁴ The Applicant testified that the advice he received from his lawyer was to commence a tort claim because of the severity of his injuries.

On September 19, 2013, the Applicant retained his current representatives (“SLSPC”) to pursue claims in tort and accident benefits arising from the accident.⁵ The Applicant took photographs of the vehicles and, after much difficulty, obtained a copy of the Detroit Police Report⁶ on May 20, 2014. This report identified the at-fault driver by name, and the particulars of the location and mechanics of the accident. The tort statement of claim was issued on August 26, 2014.⁷ The Applicant is the injured plaintiff, and his family members bring Family Law Act claims. The named defendants were the co-driver, Ajar, and Lessard.

In their written submissions in this proceeding, the parties each restated the issue set out by Arbitrator Mills, so as to focus the argument. Northbridge stated the issue as follows:

Is the insurer required to pay statutory accident benefits to the Applicant given that the Applicant has been determined by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) to be entitled to receive benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16 (“WSIA”)?

Northbridge takes the position that the Applicant’s election to bring a tort action was not bona fide, and the tort action was brought primarily for the purpose of claiming statutory accident benefits. Northbridge submits that the tort action against two of the three defendants is statute-barred, and the tort action against Lessard has no prospect of success. Northbridge asserted that if this Applicant is successful in pursuing his accident benefits and tort action, then anyone can circumvent the WSIA’s mandatory structure, and that the Applicant’s intentions are irrelevant.

By contrast, the Applicant stated the issue as follows:

Did the Applicant elect to bring an action referred to in section 30 of the Workplace Safety and Insurance Act, 1997 (“WSIA”), or any other workers’ compensation law or plan, primarily for the purpose of claiming benefits under the Schedule?

The Applicant submits that he made a valid election, approved by the WSIB, to opt out of that plan, which was not made primarily to claim accident benefits, and that he is entitled to claim statutory accident benefits from Northbridge because s. 61 of the Schedule does not bar his claims.

There are two Applications for Arbitration for accident benefits (one scheduled by ADR Chambers and one scheduled by FSCO), with Hearing dates set for the months of May and July 2017.

Both parties presented alternative outcomes for my consideration in the event that I do not find in their favour. Northbridge requested an Order that the Preliminary Issue Hearing and the accident benefits Arbitrations should be postponed until the issue of Lessard’s liability is determined in the concurrent action. The Applicant requested an Order that the Applicant may make claims for statutory accident benefits from Northbridge for the period from May 29, 2013 (or the date the election form was approved by the WSIB), until the date this Decision is released.

Legislation

Section 61 of the Schedule provides as follows:

(1) The insurer is not required to pay benefits described in this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997 or any other workers’ compensation law or plan.

(2) Subsection (1) does not apply in respect of an insured person who elects to bring an action referred to in section 30 of the Workplace Safety and Insurance Act, 1997 if the election is not made primarily for the purpose of claiming benefits under this regulation…

(5) Despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if,

(a) the person makes an assignment to the insurer of any benefits under any workers’ compensation law or plan to which he or she is or may become entitled as a result of the accident; and

(b) the administrator or board responsible for the administration of the workers’ compensation law or plan approves the assignment.

Section 30 of the WSIA provides as follows:

(1) This section applies when a worker…is entitled to benefits under the insurance plan with respect to an injury…and is also entitled to commence an action against a person in respect of the injury or disease.

(2) The worker… shall elect whether to claim the benefits or to commence the action and shall notify the Board of the option elected.

(4) The election must be made within three months after the accident occurs…

(5) The Board may permit the election to be made within a longer period if, in the opinion of the Board, it is just to do so.

The section goes on to describe what happens if a worker is awarded, in the judgement of the action, an amount less than the cost to the Board of the benefits that would have been provided under the plan to the worker.

The parties filed six volumes of documents with their written submissions prior to the Hearing, but referred to very few of them in their written submissions. At the outset of the Hearing, the parties instead agreed on a limited number of documents necessary, in their view, for the determination of the issues, and also agreed on the statements of fact contained in their written submissions.

The Applicant was the only witness who testified, and he did so through an interpreter.

The chronology of events over the period since the accident concerning the applications for accident benefits and the tort action is important.

On April 15, 2014, the Applicant gave evidence at an Examination Under Oath (“EUO”) scheduled by Northbridge pursuant to s. 33 of the Schedule. The Applicant’s evidence was that he intended to bring a tort claim.⁸

Shortly after the Statement of Claim was issued in August 2014, Northbridge brought an application pursuant to s. 31 of the WSIA, requesting an Order or declaration that the Applicant was in the course of his employment at the time of the accident, and was barred from claiming accident benefits. Ajar and Lessard applied in November 2015 for Orders that the civil action was statute-barred against them.

On May 10, 2016, almost two years later, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard the application under s. 31 of the WSIA. On May 18, 2016, WSIAT member B. Kalvin (“WSIAT Panel”) issued a ruling in which he determined, among other things, that the Applicant was a worker in the course of his employment at the time of the accident, and therefore was entitled to claim WSIA benefits.⁹

Examinations for discovery in the tort action took place over the period from February 2015 to August 2016, and included examinations of the Applicant and representatives of Ajar and Lessard.¹⁰ On March 7, 2016, the plaintiffs obtained an Order compelling Lessard to give answers to undertakings. Pursuant to the Order, Lessard was required to produce further documentation about its business relationship with Ajar, and Ajar’s representative was ordered to return to complete his discovery. On August 4, 2016, Lessard conducted examinations for discovery of the Family Law Act plaintiffs.

In September 2016, the plaintiffs served an expert report from Dr. Richard Guscott, a psychiatrist, opining that the Applicant met the applicable tort “threshold”. The Applications for Arbitration under the Schedule include an application for a determination that the Applicant is catastrophically impaired.

On November 15, 2016, six months after the WSIAT Decision and three months after conducting the Family Law Act examinations for discovery of the Applicant’s family members, the defendant, Lessard, served notice that it was bringing a Motion for summary judgement, and the Applicant (as plaintiff) served his responding Motion Record.

On March 22, 2017, the Applicant moved for an Order to amend his tort Statement of Claim. The Motion was denied by Master Mills.¹¹ The Applicant and his family members (plaintiffs in the action) are appealing the Order to the Divisional Court.

In bringing this application for determination of the preliminary issue, Northbridge relies on the WSIAT Decision and the endorsement of Master Mills, refusing the amendment to the Statement of Claim. The disagreement between the parties as to the import of the two decisions is at the heart of this dispute. The Applicant submits that Master Mills’ endorsement is of no consequence to my determination, and, in any event, it is being appealed to the Divisional Court. Northbridge submits that the failed application to amend the pleading is clear evidence that the tort action has no chance of success, or the application would not have been made, and its importance is shown by the Appeal to the Divisional Court. It is necessary to consider both decisions in detail.

WSIAT Decision

Northbridge brought an application to WSIAT that the Applicant is entitled to claim benefits under the WSIA. Ajar and Lessard also applied to WSIAT for determinations that the Applicant’s right to commence the tort action was taken away by the WSIA, or that the amounts they were liable to pay in damages were limited by WSIA.

Northbridge’s position at WSIAT was that under the Schedule, an Insurer is not required to pay statutory accident benefits to a person entitled to receive benefits under any workers’ compensation law or plan. If the Applicant were found entitled to WSIA benefits and then obtains them, then Northbridge can claim restitution of the benefits.

Ajar and Lessard wanted determinations that the Applicant could not sue them because of s. 28 of the WSIA. Under that section, a “worker” is barred from commencing an action against a “Schedule 1” employer, or a director, executive officer or worker employed by a Schedule 1 employer, so long as the worker was acting in the course of his employment. There is an exception to the immunity from being sued¹² if any employer other than the worker’s employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate it. Lessard supplied the trailer which is classified as equipment, and therefore is not protected by s. 28. An equipment supplier is, however, not liable to pay any damages or amounts that are attributable to any defendant against whom the Applicant’s action is extinguished by s. 28 of the WSIA.¹³ The outcome of the applications to WSIAT depended on whether the Applicant was a worker and the status of each of the defendants under the WSIA.

To determine the Applicant’s status as a worker, the WSIAT Panel considered evidence of the relationship between the Applicant and the Schedule 1 employer (Ajar) in order to determine whether or not the Applicant was an independent contractor or an employee. There was apparently no employment contract between the Applicant and Ajar to make the answer clear-cut. The Applicant completed the accident benefits claim under Part 8, as a self-employed person working 40+ hours for the period 2010 to August 2012 for Ajar.¹⁴

The WSIAT Panel considered the factors that constitute the “business reality test” which is set out in WSIAT precedents. The WSIAT Panel, in quoting those precedents, described the test’s purpose as follows:

…parties may themselves develop a sense of the character or reality of the business relationship and thus make a realistic assessment of the situation…¹⁵

The application of the factors in the business reality test is intended to determine “the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship.”¹⁶ The WSIAT commonly considers factors or criteria numbering in excess of a dozen and the WSIAT Panel specifically noted that, according to the Supreme Court of Canada,¹⁷ the list of factors was not closed.¹⁸

The WSIAT Panel determined that the Applicant was a worker, acting in the course of his employment when he was injured, and therefore, he was entitled to WSIA benefits. Further, the WSIAT Panel determined that the Applicant was barred from suing Ajar with respect to personal injuries sustained in the accident and from suing the co-driver. The Applicant’s family members were also barred from pursuing a tort action against Ajar by virtue of s. 27(2) of the WSIA.

The WSIAT Panel found, however, that Lessard was not shielded from the tort action, based on an analysis of the evidence given by the corporation executives of Ajar and Lessard as to the business relationship between the two companies. The WSIAT Panel preferred the evidence of Ajar over that of Lessard. Lessard was, however, entitled to the protection of s. 29(4), so that it is not liable for damages caused by the fault or negligence of the other defendants for which it, as tortfeasor, would otherwise be jointly and severally liable.¹⁹

Endorsement of Master Mills²⁰

Northbridge argues that the Master is an expert in the interpretation of pleadings, and therefore, her findings in that endorsement are determinative of the issue of the viability of the Applicant’s tort case. Master Mills found that the amendments sought to the Statement of Claim were an effort to seek “to plead a new cause of action, relying upon new facts which are not part of the existing factual matrix of the claim as initiated by the [plaintiff]”. She noted that “the [plaintiff] relies on the new factual pleading of a relationship between the corporate [defendants] to reframe the allegations of negligence in order to establish a new cause of action.” The Master refused to accept that the claim was “a form of negligence within the [defendants’] own knowledge”. The Master specifically found that the “[plaintiff] is seeking to contort the existing action so as to circumvent the [WSIAT Decision]”. Master Mills’ decision has been appealed.

Analysis

The Applicant submits that the jurisprudence under s. 61 of the Schedule establishes that the bona fides of the Applicant’s intention are relevant, and not determined solely by the strength of the court action, but must include the steps taken to pursue the claim and any advantages that might have led the insured person to prefer accident benefits over workers’ compensation. The intention is to be determined as of the time when the tort action is instituted, based on the evidence before the Arbitrator.²¹

The Applicant also relies on Narusevicius and Old Republic,²² a case involving a truck-and-trailer accident. Member Fadel held that the Applicant had validly elected to opt out of the WSIA plan. In that case, as here, the Applicant commenced a tort action and thereafter, the defendants in that action applied to WSIAT. The WSIAT decided that the action was barred against all but one of the defendants. The Applicant, believing that they had no option but to apply for WSIA benefits, elected to apply for the benefits under the pressure of a lack of income for years. There followed a period of correspondence with the Workers Compensation and Insurance Board, including a letter sending a second election form. In this case, Member Fadel affirmed that it is the responsibility of the Applicant to bring himself within the exception provided by s. 61 of the Schedule. Delay by an Applicant in bringing the action, or failure to prosecute it, are factors that must be considered.²³

As in this case, the tort action in Narusevicius was pursued through the discovery stage. Member Fadel described the evidence of intention as follows:

Mr. Narusevicius initially elected to pursue accident benefits by not making the election for WSIB benefits. Indeed a third party action was commenced within the limitation period and examinations for discovery have taken place. The court action includes a claim by the applicant’s spouse under the Family Law Act, R.S.O. 1990 c. F.3. In testimony, both the applicant and his spouse made clear that the applicant’s intention at the outset was to sue in tort for pain and suffering. In cross-examination the applicant was asked several times in different ways why he commenced a civil action and his initial response was that he initiated a law suit so that he could have all that was available to him. Given the circumstances of the accident, this was an appropriate consideration at the time. Mrs. Narusevicius also testified that, initially, when the applicant was speaking with his lawyer, they were being advised on issues such as claiming for pain and suffering and indicated that given her husband’s significant injuries they wanted to pursue a court action against the drivers.²⁴

Member Fadel found that the evidence made clear that the Applicant was interested in suing the drivers responsible for the accident in addition to medical benefits so he would have access to greater compensation. The Member found that the election to take WSIB benefits after the WSIAT Decision was due to confusion and out of a sense of desperation. Member Fadel refused to find that the election constituted an election to forego the court action.

The Applicant in this case has pursued his tort claim through the process and, unlike Mr. Narusevicius, has not taken WSIA benefits.

On review of the WSIAT Decision, I am satisfied that it turned on an interpretation of a statute, review of previous WSIAT cases and court decisions, findings of fact as to the relationship between the Applicant and Ajar and the ownership of the tractor and the trailer, and findings of credibility of witnesses. I find the Applicant could reasonably have believed himself to be an independent contractor for the purposes of the WSIA in August 2014, and that this position is consistent with his accident benefits application filed in 2012 shortly after the accident. He testified before me that he was training to learn the business to be a “self truck owner”. I interpret this phrase as an intention to be self-employed and therefore an independent contractor.

The Applicant submits that the tort claim is valid. He asserts that the WSIA does not extinguish claims against unprotected defendants that are based on vicarious liability imposed by s. 192(2) of the Highway Traffic Act, R.S.O. 1990 c. H.8. The Superior Court in 2014 (the year in which this action was initiated), in the decision Maria-Antony v. Selliah,²⁵ found that actions based on vicarious liability against unprotected defendants remain actionable and are not barred by s. 30 of the WSIA. The purpose of the section is to eliminate joint and several liability between unprotected and protected defendants, not to eliminate an unprotected defendant’s vicarious liability. The Applicant submits that Lessard can be found liable based on its own negligence and on its vicarious liability, but it cannot claim contribution or indemnity from the other (protected) defendants.

Northbridge’s position is that the action against Lessard has no merit, and that the Applicant’s tort action was caught by the WSIA and therefore was clearly brought solely for the purpose of getting Schedule benefits.

I am satisfied, based on the case law provided by the Applicant, that the issue of Lessard’s liability in the tort litigation is not the “empty shell of a law suit”, as described by counsel for Northbridge. I accept that the Applicant’s argument based on the 2014 Supreme Court of Canada case in Selliah has sufficient merit to rebut Northbridge’s argument for the purposes of the proceedings under the Schedule.

Northbridge relies on a 1982 decision of the Newfoundland Court of Appeal, Kavanaugh v. Quinn Transport Ltd.,²⁶ in which the owner of a trailer was found not to be vicariously liable for a portion of the negligence ascribed to another defendant, the owner of the tractor to which the trailer was attached. Northbridge submits that the language of the relevant highway traffic legislation is similar to the Ontario legislation language. The Court of Appeal, however, held open the possibility that the owner of a trailer could be held responsible for damage it caused, such as arising from a fault in the trailer itself. Kavanaugh was applied in the 1988 Ontario decision State Farm Mutual Automobile Insurance Company v. Zurich Insurance Company²⁷ In this decision dealing with a right of indemnity between Insurers, Craig J. found no evidence that the collision arose out of the operation or use of the trailer, so no liability could be imposed on the defendant.

Northbridge also relied on a private Arbitration case,²⁸ where a trailer became unhooked from the tractor in the road and a motorist, blinded by the fog and lack of warning, hit the trailer. The Arbitrator was obliged to consider whether the tractor and trailer were one unit or two, and referred to an Alberta Court decision that also referenced the Kavanaugh decision. The Arbitrator found fault on the driver as operator of the tractor, and not against the driver as operator of the trailer.

The Applicant referred me to Hauck v. Dominion of Canada General Insurance Company²⁹ There, a gravel truck consisting of a tractor and trailer owned by the same person struck another vehicle, and the owner was sued by the estates of people killed in the accident. The owner of the tractor and trailer did not defend the claims, but then sued his Insurer. At paragraphs 10 and 11, the Alberta Court of Appeal found a change in the law since Kavanaugh, noting that the Court in Kavanaugh had held that negligent operation of a trailer could exist if the damage was tied to the movement or operation of the trailer. The Alberta Court of Appeal also found that insurance coverage had been broadened since Kavanaugh.³⁰ At paragraph 32 of the decision, the Alberta Court of Appeal found similar development of the law in Ontario.

The case law provided by the Applicant satisfies me that the decisions relied on by Northbridge as to the trailer owner’s liability have been superseded by more recent developments in the law, and are not on all fours with the fact situation here.

Northbridge argued strenuously that the application for amendment of the Statement of Claim which Master Mills refused was proof that there was no substance to the tort action. Northbridge argued that by seeking to amend the Statement of Claim, the Applicant was acknowledging that there was nothing left in the tort action to litigate after the WSIAT Decision. Neither party gave me a copy of the amendments sought. I will not impute motivation to a party based solely on steps taken in litigation, as this is a double-edged sword that is highly speculative in nature. I accord Northbridge’s argument on the import of the application to amend the Statement of Claim very little weight, especially as there is a real disagreement between the parties as to the nature of the amendments.

The case law establishes that the Applicant’s bona fides in bringing the tort action are to be considered, assessed as at the date of the institution of the tort action, and based on the evidence of the particular case.³¹ The likelihood of success is only one factor. The Applicant affirmed repeatedly that he wanted to proceed with the tort action and so instructed his representatives over the course of the period since his injuries. He says that he continues to suffer from impairments due to his crushed right leg and other injuries, and pain and suffering appeared to be very much reflected in his evidence. He testified that he has tried to commit suicide twice, that his dream is over, and that his children have had to stop their education since his accident.

Northbridge submits that I cannot accept the Applicant’s evidence as to why he instituted the tort action because he has been coached to answer all questions on the issue to say that he always wanted to go forward with the tort action. Northbridge also says that the Applicant’s evidence as to malfunctioning Lessard trailer doors was only recently created to support the tort action.

Northbridge also attacks the bona fides of the Applicant’s claims by relying on the Applicant’s statement that he does not read English, and did not complete himself or read the accident benefits claim before he signed it, trusting the person who completed it for him.

Northbridge relies on the Detroit Police Report, which briefly summarized the accident, and the description of the accident in the accident benefits claim,³² both of which included no reference to the trailer doors. I find the lack of this detail is not determinative, as the two documents also do not refer to the horizontal bars at the back of the trailer, which the Applicant identified in the photographs and testified were what pinned him to the wall. I do not have enough evidence before me to conclude that the issue of malfunctioning doors is only recently created, as I do not have, for instance, the statements of the Customs Agents which were probably taken at the time of the accident by the police.

I do not fault a witness for being prepared to testify; nor is it wrong for an injured person to seek legal advice on what process provides the best compensation. I find the Applicant’s repeated reference to a tort claim is consistent with use of a legal phrase by a lay person addressing unfamiliar legal matters, a person without wide-ranging fluency in English therefore repeatedly using the precise English term. The Applicant’s counsel acknowledged that the Applicant speaks some English, and he would certainly have had to have some fluency in English to carry out his responsibilities as a truck driver, including cross-border freight cartage. The ability to function in one role does not, however, necessarily signify an ability to function in all roles in that second language without assistance. I find that none of these attacks on the Applicant’s credibility have any merit in the circumstances of this case.

I do not accept Northbridge’s argument that if this Applicant is successful in pursuing his accident benefits and tort action, then anyone can circumvent the WSIA mandatory structure and that the Applicant’s intentions are irrelevant. The wording of the legislation and the case law under the Schedule do not support the argument.

I find that the tort action was instituted bona fide, and not primarily for the purpose of claiming statutory accident benefits. I rely on the Applicant’s evidence of his knowledge and intention at the time the tort action was instituted, and my finding for the purposes of the accident benefits application that the tort action against Lessard is not without substance, neither at the time it was instituted nor since. I also find that this Applicant has diligently pursued his tort action, including pursuing the discovery process despite defendants who had to be ordered to answer undertakings or make proper production, and especially in face of the initial difficulty in getting basic information to advance his claim, such as the proper name of his co-driver, the relationship between Lessard and Ajar, and the ownership status of the tractor and trailer.

I therefore find that the Applicant has met the burden of establishing that he comes within the exception of s. 61 under the Schedule.³³ His application for statutory accident benefits under the Schedule is not statute-barred.

I will not order a delay in this process, which was requested in the alternative by Northbridge. The Arbitration process under the Schedule will determine whether the denied benefit claims and the entitlement to a catastrophic impairment determination are successful. This process should proceed without further delay, and specifically without waiting further for the court process.

EXPENSES:

The parties agreed at the conclusion of the Hearing that it was appropriate to defer the matter of costs in the event that I found that the claims are not statute-barred, which I have done. Therefore, the issue of expenses of this Preliminary Issue Hearing is deferred to the Arbitrator hearing the benefit claims.

May 17, 2017

Lynda Tanaka Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 140

FSCO A16-003255

BETWEEN:

MYLVAGAANAM PONNIAH

Applicant

and

NORTHBRIDGE GENERAL INSURANCE CORPORATION

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is not statute-barred from proceeding to Arbitration pursuant to section 61 of the Schedule.

2. The question of expenses related to this Preliminary Issue Hearing is deferred to the Hearing Arbitrator.

May 17, 2017

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new SABS”) came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old SABS”) shall be paid under the new SABS, but in amounts determined under the old SABS.
2. 2Exhibit 4, Tab 2.
3. 3Ibid., Tab 3.
4. 4Ibid., Tab 5, Decision No. 1239/16, 2016 ONWSIAT 1340 (“WSIAT Decision”), at para. 5.
5. 5Exhibit 2, Redacted Retainer Agreement which reads in part “MATTER – retained for:…tort and AB – MVA August 29, 2012”.
6. 6Exhibit 1.
7. 7Exhibit 4, Tab 4.
8. 8Exhibit 4, Tab 1.
9. 9WSIAT Decision.
10. 10The WSIAT Decision notes that the co-driver cannot be found, at para. 34.
11. 11Exhibit 5, Endorsement in Court Action CV-14-510973, released March 24, 2017.
12. 12Provided by s. 28 and set out in subsection (4) WSIA.
13. 13Section 29(4) WSIA.
14. 14Exhibit 4, Tab 2, Part 8.
15. 15WSIAT Decision, at para. 16.
16. 16WSIAT Decision, at para. 17.
17. 1771122 Ontario Ltd. v. Sagaz Industries Canada, 2001 SCC 59.
18. 18WSIAT Decision, at paras. 18 and 19.
19. 19Section 192(6) Highway Traffic Act, R.S.O. 1990 c. H.8.
20. 20See Exhibit 5.
21. 21Coseco Insurance Company v. Gebru, 2002 CarswellOnt 5580, at para. 8, on Appeal from 2001 CarswellOnt 5173. See also Pearson v. Ace INA Insurance, 2016 CarswellOnt 15356.
22. 222011 CarswellOnt 11211 (FSCO Arb.), FSCO A08-001638, September 21, 2011.
23. 23Ibid., at paras. 12 and 13.
24. 24Ibid., at para. 15.
25. 252014 ONSC 4265, at paras. 34-35; upheld on Appeal 2015 ONSC 2951 (Div. Ct.).
26. 261982 CarswellNfld 62.
27. 271988 CanLII 4608 (ON HCJ), 1988 CarswellOnt 719, [1988] O. J. No. 1617.
28. 28Aviva Insurance Company of Canada v. Lombard Canada Ltd., 2005 CarswellOnt 11590.
29. 292005 ABCA 160.
30. 30See Aetna Insurance Company v. Canadian Surety Company, 1994 ABCA 145, 1994 CarswellAlta 122, 114 D.L.R. (4th) 577 (Court of Appeal) where the Court held, at para. 81, “For instance, where someone who does not understand the basic principles of backing up a trailer does damage as a result of the failure to understand those principles, surely that damage would arise at least in part, out of the use or operation of the trailer.”
31. 31Coseco v. Gebru, supra, footnote 19.
32. 32Exhibit 4, Tab 2, Part 3.
33. 33Narusevicius and Old Republic, at para. 12.