Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 146
FSCO A16-003285
BETWEEN:
HEREEN ROOPNARINE
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Arbitrator Marshall Schnapp
Heard: By written submissions completed on March 22, 2017
Appearances:
Ms. Savannah Chorney, Lawyer, participated for Ms. Hereen Roopnarine
Mr. Darrell March, Lawyer, participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ms. Hereen Roopnarine, was injured in a motor vehicle accident (“MVA”) on December 5, 2009 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Roopnarine, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Preliminary Issue Hearing are:
Whether this Application for Arbitration should be dismissed?
Whether the two Applications for Arbitration (A16-003285 & A13-0144530) shall be combined?
Is either party entitled to its expenses of the Preliminary Issue Hearing?
Result:
This Application for Arbitration is not dismissed.
The two Applications for Arbitration (A16-003285 & A13-0144530) shall be combined.
The question of expenses related to this Preliminary Issue Hearing is deferred to the Hearing Arbitrator.
EVIDENCE AND ANALYSIS:
Background
Ms. Roopnarine was involved in two MVAs, one on December 5, 2009 and one on June 22, 2012. As a result of the December 5, 2009 MVA, Ms. Roopnarine was entitled to claim a Non-Earner Benefits (“NEB”), commencing on June 5, 2010. Ms. Roopnarine’s NEB resulting from the December 5, 2009 MVA was denied November 5, 2015. An Application for Arbitration, dated March 22, 2016, was served and filed by the Applicant, disputing the denial of the NEB arising from the December 5, 2009 MVA.
Insurer’s Position
The Insurer is seeking an Order dismissing the March 22, 2016 Application for Arbitration arising from the December 5, 2009 MVA. The Insurer submits that the March 22, 2016 Application for Arbitration is frivolous and vexatious as it has the same issues in common with the November 15, 2013 Application for Arbitration, and will lead to additional and unnecessary costs for the Insurer. A dismissal of the second Application for Arbitration would be the quickest and least expensive means of dealing with this matter.
The Insurer submits that Section 4.6(1) and Section 23(1) of the Statutory Powers Procedure Act and Rule 68 of the Dispute Resolution Practice Code (“DRPC”) grant an Adjudicator the power to dismiss this Application for Arbitration given its frivolous and vexatious nature and the abuse of process that would amount from the prolongation of both Applications for Arbitration.
The Insurer submits that the courts have established that the doctrine of abuse of process is a flexible one. In Canam Enterprises Inc. v. Coles, Goudge J.A., of the Ontario Court of Appeal, wrote in a dissenting opinion the following:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.2
The Insurer also relies on decisions where Arbitrators have dismissed proceedings which they found to have become frivolous, vexatious or an abuse of process during Pre-Hearings. In the Carere and Coachman decision, the Applicant’s Application for Arbitration was dismissed on the basis that it was frivolous and vexatious, relying on Rule 68, after the Arbitrator did not receive any submissions on why Mr. Carere had abandoned his Application for Arbitration.3 Additional cases were referred to by the Insurer, one where the Application for Arbitration was dismissed due to the Applicant’s refusal to pursue the Application,4 and the other where the Application for Arbitration was dismissed when the Applicant failed to fulfill the obligations to support the claim on the basis of Rule 68.5
It is the Insurer’s submission that in the present case, the Applicant’s filing of a second Application for Arbitration is redundant to the overall Adjudication of this matter and wasteful in terms of both time and financial resources as the Applicant is only entitled to the NEB from one Application for Arbitration. As well, the March 22, 2016 Application for Arbitration has the same issues in common with the November 15, 2013 Application for Arbitration. Thus, it will cause additional and unnecessary costs for the Insurer. Given these circumstances, the Insurer submits that to allow the March 22, 2016 Application for Arbitration to continue would constitute an abuse of process and thus, pursuant to sections 4.6(1) and 23(1) Statutory Powers Procedure Act and Rule 68 of the DRPC, it should be dismissed.
With respect to the Applicant’s request to have the two Applications for Arbitration heard together as per Rule 30 of the DRPC, the Insurer does not believe it is appropriate to combine them as the two Applications for Arbitration do not share a common issue when the Applicant’s entitlement to the NEB stems from two different MVAs. It is the position of the Insurer that to consolidate both proceedings will only complicate the proceedings given that both claims are for the NEB.
Applicant’s Position
As a result of the June 22, 2012 MVA, the Applicant was entitled to claim the NEB, commencing December 22, 2012. The Applicant submits that the March 22, 2016 Application for Arbitration is neither frivolous nor vexatious. The Applicant’s position is that dismissing the March 22, 2016 Application for Arbitration arising from the December 5, 2009 MVA, while the Arbitration arising from the November 15, 2013 Application for Arbitration proceeds, will allow the Insurer to take the position that the Applicant is not entitled to the NEB. This is because her entitlement arises from the injuries sustained in the December 5, 2009 MVA.
The Applicant also notes that any issues concerning costs to the Insurer and protecting the substantive rights of the Applicant can be addressed by an Order combining the March 22, 2016 and November 15, 2013 Applications for Arbitrations pursuant to Rule 30 of the DRPC, which reads as follows:
Rule 30 COMBINING APPLICATIONS
30.1 Where two or more Applications for Arbitration have been filed and it appears that:
(a) they have an issue or question of law, fact, or policy in common; or
(b) the application of this Rule will result in the most just, quickest, and least expensive means to deal with the Applications
The Dispute Resolution Group will notify the parties in writing of the intention to:
(c) combine the proceedings;
(d) schedule the proceedings to be heard at the same time;
(e) schedule one or more proceedings to be heard one immediately after the other by the same arbitrator; or
(f) suspend the scheduling of a proceeding or proceedings until the determination of any one of them
30.2 Where a party objects to a notice made under Rule 30.1, the party must promptly notify the Dispute Resolution Group and the other parties involved, in writing, of the objection.
30.3 An arbitrator will consider an objection made under Rule 30.2 and make an order on such terms as he or she considers just.
The Applicant’s position is that, in the matter before me, the two Applications for Arbitration share a common issue, the Applicant’s entitlement to the NEB, and the facts and evidence relating to the Applicant’s entitlement overlap. Thus, the Applicant submits the most just, quickest, and least expensive way of dealing with the issues in dispute in the two Applications for Arbitration is for them to be combined as per Rule 30 of the DRPC.
With respect to the Insurer’s request for the March 22, 2016 Application for Arbitration to be dismissed, the Applicant submits that the Insurer has not led any evidence, or cited any case law to suggest that the March 22, 2016 Application for Arbitration is frivolous, vexatious, commenced in bad faith, or an abuse of process. The cases cited by the Insurer to show that Arbitrators have dismissed proceedings during Pre-Hearings which have been found to become frivolous, vexatious or an abuse of process, had completely different grounds for dismissal and do not apply to the present case.
The Applicant submits that the issue of the NEB arising from the December 5, 2009 MVA has not been litigated. If at the Hearing of the November 15, 2013 Application for Arbitration, the Insurer is successful in showing that the Applicant’s entitlement, or potential entitlement, to the NEB arises from injuries sustained in the December 5, 2009 MVA, a Hearing of the March 22, 2016 Application for Arbitration would not be an abuse of process. There would be a live issue to be litigated in the context of the earlier claim for the NEB.
The Applicant acknowledges she is not entitled to recover two concurrent payments for the NEB. However, it is unjust to bar the Applicant from pursuing her claim arising from the earlier MVA, when the facts giving rise to that claim can be used to her detriment by the Insurer in the Hearing of the subsequent claim arising from the later MVA.
Findings
Dismissal Request
I am in agreement with the Applicant that the Insurer has not provided any evidence, or cited any case law, to suggest that the March 22, 2016 Application for Arbitration is frivolous, vexatious, commenced in bad faith, or an abuse of process. As well, all the cases cited by the Insurer had completely different grounds for dismissal and thus do not apply to the present case.
I am also in agreement with the Applicant that the issue of the NEB arising from the December 5, 2009 MVA has not been litigated. If at the Hearing of the November 15, 2013 Application for Arbitration, the Insurer is successful in showing that the Applicant’s entitlement, or potential entitlement, to the NEB arises from the injuries sustained in the December 5, 2009 MVA, a Hearing of the March 22, 2016 Application for Arbitration would not be an abuse of process. There would be a live issue to be litigated in the context of the earlier claim for the NEB.
Based on the above, I find there are no grounds to dismiss the March 22, 2016 Application for Arbitration.
Request to Combine the Hearings
I am not persuaded by the Insurer’s arguments that it is not appropriate to combine the two Applications for Arbitration as the Applicant’s entitlement to the NEB stems from two different MVAs and to consolidate both proceedings will complicate the proceedings. It is my view that these are just the type of circumstances where combining two Applications for Arbitration is most appropriate.
Given my overall findings in this matter, the ordinary meaning of Rule 30 of the DRPC, and the facts that deal with the same Applicant involved in two MVAs with the same Insurer, I find that the two Applications for Arbitration should be combined to ensure the most just, quickest, and least expensive means to deal with both Applications for Arbitration. It will be up to the Hearing Arbitrator on whether the proceedings are to be heard at the same time, or to be heard one immediately after the other.
EXPENSES:
The issue of expenses related to this Preliminary Issue Hearing is deferred to the Hearing Arbitrator.
May 23, 2017
Marshall Schnapp Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 146
FSCO A16-003285
BETWEEN:
HEREEN ROOPNARINE
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
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:
This Application for Arbitration is not dismissed.
The two Applications for Arbitration (A16-003285 & A13-0144530) shall be combined.
The question of expenses related to this Preliminary Issue Hearing is deferred to the Hearing Arbitrator.
May 23, 2017
Marshall Schnapp Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Canam Enterprises Inc. v. Coles, (2000) 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481, at p. 20.
- Carere and Coachman Insurance Company, 2007, FSCO A05-001245.
- White and Primmum Insurance Co., 2012, FSCO A11-002078.
- Ibrahim and Chieftain Insurance Company, 2013, FSCO A11-004093.