Rooz v. Certas Direct Ins. Co., 2010 ONSC 2773
CITATION: Rooz v. Certas Direct Ins. Co., 2010 ONSC 2773
DIVISIONAL COURT FILE NO.: 173/09
DATE: 20100511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND SACHS JJ.
BETWEEN:
ALON 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
SACHS J. (ORALLY)
[1] On this application, the applicant seeks to judicially review a decision of Arbitrator Ashby awarding costs against him personally in the amount of $4,612.12. The Arbitrator’s decision was affirmed on appeal by the Director’s Delegate on March 26, 2009.
Standard of Review
[2] This Court has, on a number of occasions, post-Dunsmuir determined that decisions of the Director’s Delegate and Arbitrators under the FSCO regime should be reviewed using the standard of reasonableness. (See Aviva Canada Inc. v. Paramsothy Murugappa and FSCO 2009 34045 (ON SCDC), [2009] O. J. No. 2770; leave to appeal dismissed November 13, 2009, State Farm Mutual Automobile Insurance Company v. Kulaveerasingam Ramalingam and FSCO 2009 44115 (ON SCDC), [2009] O. J. No. 3491; leave to appeal dismissed March 9, 2010, ING Insurance Company of Canada v. Jetty [2010] O. J. No. 776, Wawanesa Mutual Insurance Company v. Motor Vehicle Accident Claims Fund et al [2010] O. J. No. 1592).
[3] In this case the issue involves the interpretation and application of the costs regime set out in the Insurance Act, FSCO’s home statute. Therefore, we accept the submissions of counsel for FSCO and the respondent Certas that the standard of review to be applied on this application is reasonableness.
Procedural Fairness
[4] It is not disputed that the applicant had notice of the hearing date, participated in the setting of that date and attended at the hearing. It is also not disputed that nine months prior to the hearing date, Certas advised the applicant that they would be seeking costs against him personally. As to the particulars of the allegations giving rise to this claim, the applicant knew of the Arbitrator’s concerns, he had an outline of the quantum of costs being claimed and he had a summary of the evidence that Certas intended to lead at the hearing on this issue. In view of this, the requirements of s.282(11.4) of the Insurance Act that the applicant be given a reasonable opportunity to make representations have been satisfied.
[5] We see no merit to the applicant’s submissions that he was denied procedural fairness. He knew the case he had to meet and was given an opportunity to respond to it.
Was the Arbitrator’s Decision to Find the Applicant Liable for Certas’s Costs Reasonable?
[6] In view of the fact that the Arbitrator found that this was a suspect claim, that the claim was only for service providers’ expenses, that the claimant had left the country and there was no evidence that he was in communication with the applicant during the twenty-month prior to the request for arbitration, it was reasonable for the Arbitrator to conclude that under s.282(11.2)(c), the applicant caused expenses to be incurred without reasonable cause when he initiated the arbitration. The exemption provided for in s.282(11.3) does not apply to s.282(11.2)(c).
[7] In view of this conclusion, there is no need for us to deal with the application of the exemption to the Arbitrator’s findings under s.282(11.2)(a).
Apprehension of Bias
[8] We see no merit in the submission that there was a reasonable apprehension of bias on the part of the Arbitrator. We agree with and adopt the Director’s Delegate’s reasons in this regard.
Conclusion
[9] For these reasons, the application is dismissed.
JENNINGS J.
[10] I endorse the Record, “This application is dismissed for oral reasons delivered today. FSCO is to be made a party on consent. It does not seek costs. Costs payable by Mr. Rooz to Certas fixed at $5,000.00 inclusive and payable forthwith.
SACHS J.
JENNINGS J.
LEDERMAN J.
Date of Reasons for Judgment: May 11, 2010
Date of Release: May 18, 2010
CITATION: Rooz v. Certas Direct Ins. Co., 2010 ONSC 2773
DIVISIONAL COURT FILE NO.: 173/09
DATE: 20100511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND SACHS JJ.
BETWEEN:
ALON ROOZ
Applicant
– and –
CERTAS DIRECT INSURANCE COMPANY
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: May 11, 2010
Date of Release: May 18, 2010