Rooz v. Certas Direct Ins. Co., 2010 ONSC 2756
CITATION: Rooz v. Certas Direct Ins. Co., 2010 ONSC 2756
DIVISIONAL COURT FILE NO.: 173/09
DATE: 20100511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND SACHS JJ.
BETWEEN:
ALAN ROOZ
Applicant
– and –
CERTAS DIRECT INSURANCE COMPANY
Respondent
In Person
Ryan A. Naimark, for the Respondent, Certas Direct Insurance Company
Joe Nemet, for the Respondent, the Financial Services Commission of Ontario
HEARD at Toronto: May 11, 2010
ORAL REASONS FOR JUDGMENT
JENNINGS J. (orally)
[1] In his notice of application for judicial review, Mr. Rooz seeks to introduce fresh evidence not put before the Arbitrator and contained in his own affidavit of September 23, 2007. Mr. Rooz sought to introduce that affidavit before the Director’s Delegate on his appeal from the decision of the Arbitrator. The Director’s Delegate refused to admit the affidavit by reason of its failure to meet the Palmer test for admissibility because the evidence contained in the affidavit was available to be put before the Arbitrator.
[2] The applicant’s submissions as to why he did not put the evidence before the Arbitrator relate to the issue of procedural fairness that is to be determined in this application. If this issue was to be determined in the applicant’s favour the matter would go back to the Arbitrator for rehearing. At that point, the applicant would be free to introduce what admissible evidence he chose to submit. For the purposes of this application, the affidavit therefore will not be received.
[3] With respect to the additional affidavits filed by the applicant on May 6, 2008 and May 12, 2008 and the exhibits attached to the affidavit of July 6, 2009, for which no leave to admit has been sought, it appears to us that they relate to the issue of the procedural fairness and simply identify communications and notices from and to the parties.
[4] Counsel agree that the affidavits of May 6 and May 12 may be admitted. A quarrel is taken with the affidavit of July 6, 2009 because of its contents in addition to the documents that it exhibits to which no exception is taken.
[5] Accordingly, with the agreement of counsel, we will allow the documents exhibited in the affidavit of July 6 to be referred to on this application but not the affidavit itself.
JENNINGS J.
LEDERMAN J.
SACHS J.
Date of Reasons for Judgment: May 11, 2010
Date of Release: May 13, 2010
CITATION: Rooz v. Certas Direct Ins. Co., 2010 ONSC 2756
DIVISIONAL COURT FILE NO.: 173/09
DATE: 20100511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND SACHS JJ.
BETWEEN:
ALAN ROOZ
Applicant
– and –
CERTAS DIRECT INSURANCE COMPANY
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: May 11, 2010
Date of Release: May 13, 2010