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Neutral Citation: 2019 ONFSCDRS 35

Appeal P19-00002

Appellant

and

Respondent

BEFORE:

Edward Lee

REPRESENTATIVES:

M.K. was self-represented

Julianne Brimfield for Wawanesa Mutual Insurance Company

HEARING DATE:

All submissions received by July 1, 2019. Determined on the record.

APPEAL ORDER

Under section 283 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 Regulation 664, R.R.O. 1990, as amended, it is ordered that:

The appeal of Delegate Evans’ order of January 30, 2019 is dismissed.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 22, 2019

Edward Lee Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–2010.¹

M.K. (“the Appellant”) appeals a decision rendered by Director’s Delegate Evans on January 30, 2019.

For reasons that follow, I am dismissing the appeal.

II. BACKGROUND

The relevant history of this matter is as follows:

The Appellant was injured in an accident on January 3, 2012 and sought accident benefits from Wawanesa (“the Respondent”), payable under the SABS. She filed an application for arbitration after mediation failed to resolve disputes regarding accident benefits. At the arbitration, the issues were entitlement to income replacement benefits (“IRBs”), medical benefits, and a special award. Arbitrator Musson dismissed the claims in a decision issued October 11, 2016.

The Appellant then filed an appeal of that decision. In a decision dated August 14, 2017, Director’s Delegate Rogers dismissed the appeal. He determined Arbitrator Musson had committed no errors of law in his order, did not err in his analysis of facts, and provided a cogent explanation for his conclusions.

The Appellant then filed an application for a variation or revocation of the arbitration decision of Arbitrator Musson of October 11, 2016. Director’s Delegate Evans was appointed to decide this application for variation or revocation. Delegate Evans issued his decision on January 30, 2019 wherein he determined that the Appellant’s application for variation/revocation failed to meet the criteria of Rule 61.1 of the Dispute Resolution Practice Code. Accordingly, Delegate Evans dismissed the application for variation.

The Appellant now seeks to appeal the decision of Delegate Evans.

III. ANALYSIS

a. Does an appeal lie from a decision of a Director’s Delegate to another Director’s Delegate?

In its Response to Appeal, the Respondent has raised the issue of whether the Dispute Resolution Practice Code (“the DRPC”) permits a party to file an appeal of a decision of the Director or of a Director’s Delegate.

The Respondent’s argument is based on Rule 50.1 of the DRPC, which reads as follows:

50.1 A party to an arbitration may appeal an order of an arbitrator to the Director only on a question of law. [Italics mine]

In the present case, I, a Director’s Delegate, have been tasked with considering an appeal of an order of Director’s Delegate Evans.

Further, in regard to applications for variations or revocations, the DRPC states the following:

63.1 The Director may:

(a) decide the Application for Variation/Revocation;

(b) delegate a person to decide the Application for Variation/Revocation on his or her behalf and to exercise the powers and perform the duties of the Director in relation to the Application; or

(c) appoint the same adjudicator who made the original order or another adjudicator to decide the Application for Variation/Revocation.

In the present case, the Director delegated Delegate Evans under Rule 63.1(b) to determine the application for variation filed by the Appellant. Had the Director appointed an arbitrator (under Rule 63.1(c)) to decide this variation, I might find differently in regard to my jurisdiction, but this is a clear case where the Director delegated his power to another Director’s Delegate.

I agree with the Respondent’s argument. There is no provision in the DRPC which permits an appeal of an order of the Director’s Delegate. The DRPC contains no such procedure. Nor do I find any such authority in any other statute or legislation. Further, to allow an appeal of one Delegate’s order to another Delegate would result in multiple or an interminable series of appeals — a result which would be contrary to the general principle of finality required in the litigation process.

Therefore, I have no jurisdiction to hear this appeal, and the appeal is dismissed.

In the alternative, if I were wrong in regard to this determination of my jurisdiction, I would still reject this appeal for the following reasons.

Delegate Evans dismissed the Appellant’s application for variation because her application failed to meet the criteria under Rule 61.1 of the DRPC, which reads as follows:

61.1 Either the insured person or the insurer may apply to the Director to vary or revoke an arbitration order or an appeal order if:

(a) there has been a material change in the circumstances of the insured;

(b) evidence not available on the arbitration or appeal has become available; or

(c) there is an error in the order.

In his order of January 30, 2019, Delegate Evans noted that the initial relief sought in the Appellant’s application was anonymization of Arbitrator Musson’s decision, but this was not an “error in the order” and thus paragraph 61.1(c) could not apply. Delegate Evans also determined that the Appellant’s application did not indicate how paragraph 61.1(a) applied. He also determined that 61.1(b) did not apply because although there was a “great deal of reference” to evidence in the application, most of it appeared to be irrelevant with no bearing on the claims in the arbitration case. Finally, he determined the Appellant was seeking to reargue or enlarge upon issues that had already been dealt with in the arbitration or on appeal. Delegate Evans also noted the Appellant simply failed to exercise her right to call witnesses or provide necessary evidence at the time of her arbitration hearing.

I find that almost the entirety of the Appellant’s voluminous and expansive materials and argument in this appeal suffer from the same deficiency noted by Delegate Evans in regard to the materials he received. The Appellant’s extensive arguments, discussions of legal principles, and the evidence she now seeks to adduce are simply irrelevant to the arbitration conducted by Arbitrator Musson and the application for variation/revocation determined by Delegate Evans. Without going into greater detail, much of the Appellant’s current argumentation references or addresses claims in regard to property damage or disputes with numerous other litigation parties that have no bearing on her accident benefits case.

In addition, she still seeks to reargue or enlarge upon issues already determined in the decision of Arbitrator Musson, and in the appeal rejected by Delegate Rogers (decision issued August 14, 2017). Again, this is not permissible in an appeal proceeding.

An arbitrator’s order may only be appealed on a question of law (Rule 50.1 DRPC). Assuming I had the jurisdiction, I find the Appellant’s argumentation and materials do not convince me that Delegate Evans committed errors of law in his dismissal of her application for variation/ revocation. Delegate Evans addressed the appropriate provisions of the law, and reviewed the application and decisions before him. His order was clear and provided sufficient reasoning to permit a full appeal of his decision. Accordingly, I reject the appeal of Delegate Evans’ order of January 30, 2019.

The Appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.