Court of Appeal for Ontario

Date: December 12, 2019

Docket: C66558

Judges: Strathy C.J.O., Sharpe and Roberts JJ.A.

Parties

Between

Leisa Hutton Appellant

and

The Manufacturers Life Insurance Company c.o.b. as Manulife Financial Respondent

Counsel

John Philp and Aron Zaltz, for the appellant

Amir Tamari and Sophia Zaidi, for the respondent

Hearing and Appeal

Heard: October 28, 2019

On appeal from: The order of Justice Alfred J. O'Marra of the Superior Court of Justice, dated January 16, 2019, with reasons reported at 2019 ONSC 279.

Reasons for Decision

Strathy C.J.O.:

I. Introduction

[1] The issue on this appeal is whether the court has jurisdiction over the appellant's claim against her long-term disability ("LTD") insurer or whether the claim is subject to grievance and arbitration under her union's collective agreement with her employer.

[2] The motion judge found that the court had no jurisdiction and granted the insurer's summary judgment motion to dismiss the action. For the reasons that follow, I agree, and would dismiss the appeal.

II. Factual Background

A. The Appellant's Employment and Collective Agreement

[3] The appellant was employed full-time as a laboratory technician at Quinte Healthcare Corporation ("QHC"). She was a member of the Ontario Public Service Employees Union ("OPSEU"), the exclusive bargaining agent on behalf of all employees in her bargaining unit. QHC and OPSEU were parties to a collective agreement governing the terms and conditions of employment of all unionized employees of QHC.

[4] QHC contracted with the respondent, The Manufacturers Life Insurance Company ("Manulife"), to provide group benefits, including life insurance and LTD benefits, to eligible employees.

B. The Appellant's Accident and LTD Claim

[5] The appellant was injured in an automobile accident in August 2011. She claimed that she was disabled as a result of her injuries and sought long-term disability benefits under the terms of the collective agreement. As explained in more detail below, she received benefits for about 17 months before Manulife determined that she was no longer eligible for LTD benefits. After Manulife denied her benefits, she filed a formal grievance against her employer. The grievance settled in September 2015. Prior to the settlement, however, the appellant commenced this action against Manulife.

[6] As the collective agreement is central to the issue on this appeal, I will set out its key provisions before returning to the narrative.

C. The Collective Agreement

[7] The collective agreement between OPSEU and QHC provides that an eligible QHC employee is entitled to LTD benefits under the Hospitals of Ontario Disability Income Plan ("HOODIP") or an equivalent plan (Art. 15.02). QHC pays 75% of the premiums and the employee pays the balance. Any disputes are to be resolved by grievance and arbitration (Art. 15.04(a)). It also provides for resort to the insurance company's appeal process prior to filing a grievance (Art. 15.04(b)). The material provisions are:

ARTICLE 15 – SICK LEAVE AND LONG-TERM DISABILITY

NOTE: Articles 15.01 – 15.09 apply to full time employees only.

15.01 The Hospital [QHC] shall provide a short-term sick leave plan at least equivalent to that described in the 1992 Hospitals of Ontario Disability Income Plan (HOODIP) brochure.

Copies of the HOODIP brochure will be made available to employees upon request.

15.02 The Hospital will pay seventy-five percent (75%) of the billed premium towards coverage of eligible employees under the long term disability plan (HOODIP or equivalent); employees shall pay the balance of the billed premiums through payroll deduction.

15.03 No sick pay benefit is payable under HOODIP for the first fifteen (15) hours of absence for the sixth (6th) and subsequent period(s) of absence in the same fiscal year (April 1st through March 31st).

15.04 (a) Any dispute which may arise concerning an employee's entitlement to short-term or long-term benefits under HOODIP may be subject to grievance and arbitration under the provisions of this Agreement.

(b) If a claim for long-term disability is denied, the employee must fully comply with the carrier's Medical Appeal Process prior to filing a grievance, provided that the Process is completed within sixty (60) days of its inception, unless that time is extended by mutual agreement of the Hospital and OPSEU. [Emphasis added].

D. HOODIP

[8] A copy of the "OPSEU Guide to the Hospitals of Ontario Disability Income Plan (HOODIP)" (the "OPSEU Guide") was produced on the motion and was referred to by the motion judge in his reasons. The motion judge found that HOODIP, although separate from the collective agreement, had been incorporated by reference in it.

[9] The OPSEU Guide indicates the following:

• HOODIP was created in 1968 to provide uniform disability income protection for all members of participating employers;
• hospitals that are members of the Ontario Hospital Association can participate in the HOODIP plan;
• OPSEU members are eligible to be plan members of HOODIP if their employer is a member of the Ontario Hospital Association and participates in HOODIP;
• in general, an employer will contract with an insurance company or a third party administrator to assist in the adjudication of short term and long term HOODIP benefits;
• if an employee moves to another hospital that does not participate in the plan, his or her coverage will terminate;
• an employer who does not participate in HOODIP is required to guarantee equivalent benefits to its members;
• the LTD part of HOODIP is funded by the employer as an insured benefit – the insurance company signs a contract with the employer to provide the program at a certain cost; and
• if an LTD claim is denied, the employee is required to follow the insurance company's internal appeal process, before grieving the dispute.

[10] The OPSEU Guide also provides:

You have the right to grieve any dispute on whether you are entitled to short or long term benefits under the HOODIP plan (Article 15 of the Central Collective Agreement).

E. The Appellant's LTD Claim

[11] In January 2012, the appellant applied to Manulife for LTD benefits. Her claim was initially approved, and she received benefits from March 19, 2012 to August 22, 2013. However, after a review of her file by Manulife in 2013, she was advised that her condition no longer met the definition of "total disability" under the Manulife policy. The definition stipulated that an employee would be entitled to LTD benefits where their injury or illness prevented them from performing the essential duties of their "own occupation" during the two years immediately following the date of disability, and "any occupation" they were qualified for or could reasonably become qualified for after two years. At the two-year mark, the appellant's disability was determined not to prevent her from performing the essential duties of "any occupation". She was therefore no longer eligible to receive LTD benefits.

[12] On December 17, 2013, the appellant filed a grievance with QHC, following the grievance procedure set out in the collective agreement. Her grievance stated: "I grieve that the Employer has violated Article 15 of the collective agreement by denying my claim for long term disability benefits." Her desired settlement was "[f]ull redress, including approval for LTD benefits as well as anything else an arbitrator deems appropriate."

[13] On September 2, 2014, OPSEU requested that Manulife reconsider its decision to terminate the appellant's LTD benefits. Manulife agreed, despite the fact that the deadline for appeal had passed. However, on November 10, 2014, Manulife advised the appellant that the termination of benefits was upheld and that its decision was final.

[14] Almost a year later, on August 19, 2015, with her grievance still outstanding, the appellant commenced this action against Manulife. She claimed, among other things, breach of contract, entitlement to LTD benefits, and punitive damages of $500,000 for "bad faith".

[15] A few weeks later, on September 1, 2015, the day her grievance was scheduled to be heard, the appellant settled her grievance with QHC and OPSEU. The settlement provided, among other things, for $30,000 for general damages and not for loss of income, and $31,800 less statutory deductions, allocated over three years. The motion judge found that the $31,800 was for "loss of income". The terms of the settlement did not prevent the appellant from pursuing her claim against Manulife. In September 2017, she also commenced an action against her union, OPSEU, and the two OPSEU lawyers who represented her in the grievance and settlement, claiming damages for negligence in the amount of $1,500,000.

[16] Manulife brought a summary judgment motion to dismiss the appellant's action on the ground that the court lacked jurisdiction over the claim, as it arose out of the collective agreement between QHC and OPSEU. The claim was subject to exclusive arbitral jurisdiction under the collective agreement.

III. The Motion Judge's Reasons

[17] On summary judgment, the motion judge agreed with Manulife, holding that the appellant's entitlement to LTD benefits fell within the exclusive grievance and arbitration provisions of the collective agreement and was, therefore, subject to arbitral jurisdiction.

[18] The motion judge undertook an analysis of whether or not the appellant's dispute about LTD benefits "was within the exclusive arbitral jurisdiction under the collective agreement, or in the circumstances of this case, the inherent jurisdiction of the court." The test, set out in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, requires the court to determine "whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement": at para. 52. If it does, the dispute is solely within the jurisdiction of the arbitrator.

[19] The motion judge concluded that the appellant's entitlement to LTD benefits, and QHC's obligation to provide them, were rooted in Article 15 of the collective agreement. The dispute involved the "interpretation, application, or administration of the collective agreement". The fact that the benefits were paid or administered under the Manulife policy did not change that determination.

[20] He found that the collective agreement incorporated HOODIP by reference, and expressly provided for the resolution of LTD disputes under Article 15. On this point, he stated, at para. 44 of his reasons:

HOODIP, separate from the collective agreement, although incorporated by reference, sets out the terms required for benefits, such as the qualifying criteria of "total disability" for LTD and the amount of income receivable depending on length of service of the employee. The specific Manulife policy contracted by QHC is not referenced in the collective agreement because, as the central collective agreement notes, local employers may change the insurance carrier at any time. It is also noted in the OPSEU Guide to HOODIP, that the employee has the right to dispute any grievance about entitlement to LTD under Article 15.

[21] In undertaking his analysis, the motion judge referred to the categories set out in Donald J.M. Brown and David M. Beatty, Canadian Labour Arbitration, 3rd ed. (Aurora, Ont: Canada Law Book, 1998) ("Brown and Beatty"), which were adopted and applied in the decisions of this court in Barber v. Manufacturer's Life Insurance Company (Manulife Financial), 2017 ONCA 164, 136 O.R. (3d) 198, at para. 9, leave to appeal refused, [2017] S.C.C.A. No. 150, and London Life Insurance Co. v. Dubreuil Brothers Employees Assn. (2000), 49 O.R. (3d) 766, at para. 10, leave to appeal refused, [2000] S.C.C.A. No. 496.

[22] The Brown and Beatty categories are set out below. The motion judge found that the claim fell within Brown and Beatty category 2, "where the collective agreement stipulates that the employer is obliged to provide certain medical or sick-pay benefits, but does not incorporate the plan into the agreement or make specific reference to it". He thus concluded that "any dispute as to [LTD] entitlements under the collective agreement was properly within the jurisdiction of an arbitrator to determine."

IV. Submissions of the Parties

[23] The appellant submits that the motion judge erred in finding that QHC was contractually liable to pay the LTD benefits. She claims this was an error because, not only was there no evidence that QHC was responsible for payment of benefits, its only contractual obligation under Article 15 was to provide an LTD plan equivalent to HOODIP and to pay a portion of the premium. In contrast, there was evidence that Manulife was responsible for the administration of the policy and the payment of claims. This misapprehension led the motion judge to incorrectly categorize the claim as falling within Brown and Beatty category 2, rather than category 3. Category 3 was more appropriate because the collective agreement only obliged the employer to procure the policy and pay a portion of the premium. Further, as the collective agreement did not provide any details of the Manulife benefit plan, it cannot reasonably be held that QHC agreed to pay those benefits itself.

[24] The appellant also contends that, for a benefit entitlement dispute to be arbitrable under the terms of the collective agreement, it must arise under HOODIP or an equivalent plan. However, in this case, as HOODIP and the Manulife policy have different definitions of "total disability", they cannot be considered to be equivalent plans. Thus, while a claim as to whether QHC failed to provide the benefits promised under HOODIP would be arbitrable, her claim about whether she meets the definition of "total disability" under the Manulife policy is inarbitrable because it arises under the terms of the policy, not the collective agreement. The Manulife policy is distinct from the collective agreement, and disputes arising from it should be dealt with by the courts.

[25] Manulife's answer, in substance, is that, pursuant to Article 15.04 of the collective agreement, LTD disputes are to be resolved first through the insurer's appeal process and, if not resolved, then by grievance and arbitration under the collective agreement, not through the courts. The appellant followed that process. She invoked the grievance procedure and settled her claim against QHC. She has no right to access the court.

V. Analysis

A. Standard of Review

[26] There are two issues on this appeal: (a) the standard of review; and (b) whether the motion judge erred in finding that the appellant's claim was subject to exclusive arbitral jurisdiction.

[27] Neither party addressed the standard of review applicable to this appeal.

[28] In Barber, this court affirmed the dismissal of an employee's lawsuit against Manulife for LTD benefits because the claim was subject to arbitration under the collective agreement. The court observed, at para. 7, that since the resolution of the appeal turned on the interpretation of the collective agreement, which was a negotiated agreement rather than a "standard form" contract, the question was one of mixed fact and law and the "palpable and overriding error" standard of review applied: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-55; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at paras. 21, 24. See also Morriseau v. Sun Life Assurance Company of Canada, 2017 ONCA 567, 70 C.C.L.I. (5th) 11, at para. 9, leave to appeal refused, [2017] S.C.C.A. No. 361.

[29] However, while, like Barber, this appeal can be regarded as involving issues of contract interpretation, it can also be viewed as asking whether the dispute in question is subject to the jurisdiction of the court or an arbitrator. Determinations of jurisdiction under rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are legal determinations and are subject to a correctness standard of review: Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 18. In London Life, this court applied a correctness standard in circumstances similar to this: at para. 14.

[30] Despite the potential tension between the two tests, as I conclude that the motion judge's decision was correct, and in the absence of full argument, I do not find it necessary to determine the appropriate standard of review.

B. Did the Motion Judge Err in Finding the Claim Was Arbitrable?

[31] Section 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, provides that disputes arising from a collective agreement shall be resolved through binding arbitration:

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

[32] In Weber, the Supreme Court confirmed that mandatory arbitration clauses, such as s. 48(1) (then s. 45(1)), "generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement": at para. 67.

[33] In determining whether a matter falls within the exclusive arbitral jurisdiction under a collective agreement, the Supreme Court of Canada has outlined that the key question is "whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement": Weber, at para. 52.

[34] Elaborating on the nature of this inquiry, the Supreme Court in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 25, held:

To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide. [Internal citations omitted.]

[35] In order to aid in the application of these principles within the context of benefit entitlement disputes, this court has adopted the Brown and Beatty categories: Barber, at para. 9; London Life, at para. 10.

[36] The categories are helpful in assisting decision-makers to determine whether agreements, such as pension, insurance, and other benefit plans provided by employers can be appropriately considered to form part of the collective agreement. The authors of Brown and Beatty, echoing the Supreme Court's language in Regina Police Assn., have suggested that whether such plans form part of a collective agreement, "depends upon the surrounding circumstances, together with the specific language used in the collective agreement": Brown and Beatty, at 4:1400. The four categories are:

1. where the collective agreement does not set out the benefit sought to be enforced, the claim is inarbitrable.

2. where the collective agreement stipulates that the employer is obliged to provide certain medical or sick-pay benefits, but does not incorporate the plan into the agreement or make specific reference to it, the claim is arbitrable;

3. where the collective agreement only obliges the employer to pay the premiums associated with an insurance plan, the claim is inarbitrable; and

4. where the insurance policy is incorporated into the collective agreement, the claim is arbitrable.

[37] The Brown and Beatty categories were described in London Life as "helpful". However, while the categories can indeed be helpful, they should not mask the essential question, which is to determine whether benefit plans that are ancillary to the collective agreement "can be characterized as constituting or forming part of a collective agreement" so as to be enforceable by arbitration. This is primarily a question of interpretation of the collective agreement. As Brown and Beatty acknowledge, "it is necessary in every case to assess the particular provisions of the collective agreement which the parties themselves have negotiated, and to understand them in the general context of the collective agreement": Brown and Beatty, at 4:1210, 4:1400 (citing Coca-Cola Bottling Ltd. v. U.F.C.W. (1994), 44 L.A.C. (4th) 151, at p. 155). While the categories can be of assistance in helping decision-makers understand the impact of their conclusions regarding the interpretation of a collective agreement, they must not distract from the primary exercise at hand: determining whether the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement: Regina Police Assn., at para. 25.

[38] In my view, as a matter of contract interpretation, the motion judge was correct in his conclusion in this case. The collective agreement referred only to HOODIP and contemplated that employees would be entitled to the level of coverage provided by HOODIP. The employer's obligations under the HOODIP plan formed part of the collective agreement. This alone is enough to conclude that the grievance and arbitration provisions of the collective agreement apply to LTD disputes.

[39] A helpful decision on this point is Pilon v. International Minerals and Chemical Corp. (Canada) Ltd. (1996), 31 O.R. (3d) 210 (C.A.), a case that bears some similarity to this one. In that case, the collective agreement between Mr. Pilon's employer and his union provided for a group insurance plan, which included short- and long-term disability benefits. The cost of all benefits, other than LTD benefits, were to be paid for by the employer. LTD benefits were to be provided by the insurer through a plan administered by the employer and paid for by the employees through salary deductions. The collective agreement did not define the eligibility for disability benefits, but the collective agreement incorporated by reference the terms of a benefits handbook that was distributed to employees, which set out the definition of "total disability" and the terms of the coverage.

[40] When the employer refused to process Mr. Pilon's claim against the insurer for LTD benefits, he claimed directly from the insurer. When his claim was denied, he commenced an action against the insurer.

[41] Relying on St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 S.C.R. 704, which, as it noted, was confirmed in Weber, this court affirmed the dismissal of the action. It held that Mr. Pilon's entitlement to the LTD benefits arose from the collective agreement. The court noted, at p. 214, that:

The Supreme Court of Canada has clearly held that it would subvert the collective bargaining relationship, and the statutory scheme under which it arises, to hold that matters addressed and governed by the Collective Agreement may nevertheless be the subject of action in the courts at common law.

[42] Mr. Pilon had no right at all to the benefits in the absence of the group insurance scheme established by the collective agreement. The grievance and arbitration mechanism in the collective agreement governed the resolution of the matter.

[43] Similarly, here, the language of the dispute resolution clause in the collective agreement puts the question beyond dispute. Article 15.04(a) expressly provides that any dispute "concerning an employee's entitlement to short-term or long-term benefits under HOODIP may be subject to grievance and arbitration under the provisions of this Agreement."

[44] I would not accept the appellant's submission that, because her dispute arises under Manulife's policy and not under HOODIP, Article 15.04(a) is inapplicable. In my view, the words "or equivalent" in Article 15.02 must be read into Article 15.04(a) to make all claims for LTD benefits arbitrable. QHC is contractually obliged to provide those benefits and must therefore be a party to any dispute concerning an employee's entitlement.

[45] HOODIP is a widely used benefit plan and submissions similar to those made by the appellant have been made before. In Trenton Memorial Hospital v. Ontario Nurses' Assn., [2000] O.L.A.A. No. 506, a hospital argued that the absence of the words "or equivalent" in the grievance clause meant that an arbitrator did not have jurisdiction to consider a grievance for LTD benefits under any plan except HOODIP itself. This was rejected by the arbitral board on the basis that the specific provision must be considered in the context of the section as a whole: at para. 13. The decision was affirmed by the Divisional Court: [2001] O.J. No. 2965.

[46] The arguments were also rejected in Woodstock General Hospital v. Ontario Hospital Nurses' Assn., [2001] O.L.A.A. No. 500. In the case, the employer argued that arbitration was available only for disputes under HOODIP and not for disputes under an equivalent plan. The arbitrators rejected the submission, in language I find persuasive, at paras. 12 and 13:

In our view, having reviewed both the disputed provisions and the article as a whole, the only interpretation which makes sense is one in which the words "or an equivalent plan" is read into Article 12.07. Indeed, if these words were not read into Article 12.07 then the plan could not be equivalent - something which the employer is obligated to provide - for there would be no collective agreement mechanism for the adjudication of disputes dealing with coverage. The language, of course, is central and it is the well-known intention of the parties that coverage be uniform. Our conclusion about the proper interpretation of the provision is independently arrived at following a review of the provision. However, it is also a conclusion in complete compliance with existing authority.

In that respect, we are in agreement with Arbitrator Thorne's decision, and reasons for decision, in Trenton, a finding recently upheld by the Divisional Court. As Arbitrator Thorne found, there was no need, in Article 12.07 to specifically refer to "an equivalent plan" for the provision, read as a whole clearly incorporates any equivalent plan. While employer counsel takes the position that the issue is still alive - the Divisional Court having dismissed the application purely on the basis of its finding that the decision was not patently unreasonable - we read the Court's endorsement somewhat more broadly. The Court, significantly in our view, concluded: "To give the collective agreement the meaning suggested by the applicant would be to ignore the provision of article 12.07." We reach the exact same conclusion.

[47] Further support for these conclusions can be found in the decision of Lax J. in Campos v. Sun Life Assurance Company of Canada (2009), 77 C.C.P.B. 301 (Ont. S.C.). The case was a proposed class action, in which the putative representative plaintiff, a registered nurse, made a claim for LTD benefits provided under a policy obtained by her employer pursuant to a collective agreement which incorporated HOODIP. Only a portion of the collective agreement is reproduced in the judgment, but the terms are substantially the same as Articles 15.01, 15.02 and 15.04(a) of the collective agreement between OPSEU and QHC. Lax J. dismissed the action, finding that the plaintiff's claim was subject to arbitration.

[48] In the course of her reasons, Lax J. reviewed the history of HOODIP at length at paras. 10-21. She noted, at para. 16, that the provisions of the collective agreement providing for grievance and arbitration of short-term or long-term benefits under HOODIP had been described by some labour arbitrators as "strange", "startling", "unusual" or "unique." She noted that there was no provision in the collective agreement providing for arbitration of disputes regarding other benefits provided in the group insurance policy, including life insurance and accidental death and dismemberment benefits.

[49] The same is true here. In my view, the provisions of the collective agreement are "strange" and "unique", because the employer has contractually bound itself to provide employees with the coverage described in HOODIP and to resolve coverage disputes by arbitration, even though the LTD coverage itself is provided by a third party. Were it necessary to do so, I would characterize this case as falling within Brown and Beatty category 4: the employer bound itself to provide the short-term and long-term disability coverage set out in HOODIP, which was incorporated into the collective agreement. While Manulife's policy provided the administrative and financial backstops to that coverage, the employee's recourse was to the employer, under the collective agreement.

[50] While the provisions of the collective agreement may be described as "strange" and "unique", I can well understand why OPSEU may have negotiated terms such as these on behalf of hospital employees. It permits disabled employees to resolve their LTD disputes by grievance and arbitration with their employer, rather than by litigation against the insurer. The arbitration process is faster, more cost effective, and engages the experience of expert arbitrators.

[51] In this case, while the appellant phrases her claim as a disagreement over whether she meets the definition of "total disability" under the Manulife plan, the true substance of her dispute is a disagreement with her employer over her entitlement to LTD benefits as outlined in the collective agreement. This clearly arises from the collective agreement and falls within the purview of an arbitrator to decide. Here, the dispute was resolved through the appeals and grievance process stipulated in the agreement. The appellant has no entitlement to resort to the court for additional compensation from the insurer.

VI. Order

[52] For these reasons, I would dismiss the appeal, with costs to the respondent fixed at $7,500, inclusive of disbursements and applicable taxes.

Released: December 12, 2019

"George R. Strathy C.J.O."

"I agree. Robert J. Sharpe J.A."

"I agree. L.B. Roberts J.A."