Court File and Parties
CITATION: Dominion of Canada General Insurance Co. v. Monks, 2011 ONSC 3881
DIVISIONAL COURT FILE NO.: 14/10
DATE: 20110620
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND LEDERER JJ.
BETWEEN:
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Applicant
– and –
JODI MONKS
Respondent
D’Arcy McGoey, for the Applicant
Robert A. Zigler, for the Respondent
HEARD at Toronto: June 20, 2011
Oral Reasons for Judgment
by the court (orally)
[1] The applicant agrees that if the notice requesting the arbitration was filed within ninety days after the mediator reported to the parties, this application must fail.
[2] This requires that two questions be answered. First, when did the mediator “report” to the parties pursuant to clause 281.1(2)(b) of the Insurance Act? Second, when did Jodi Monks file her notice requesting arbitration?
[3] The Director’s Delegate determined that the mediator reported on March 4, 2008 and the notice was filed on June 2, 2008, which is ninety days later and thus, just within the limitation period imposed by the statute.
[4] The answer to the first question begins with s.280(8) of the Insurance Act. The clause requires the mediator to “prepare and give to the parties a report” [emphasis added]. The Director’s Delegate provided reasons why the report was “given” on March 4, 2008 (see: Decision of the Director’s Delegate, pp. 11 to 15). His reasons are clear, cogent and compelling. Among those reasons, he pointed out that the requirement that the report be “given to the parties” implies that it must also have been received. In this case, notwithstanding that the report bears the date Friday, February 29, 2008, it was received by both parties on Tuesday, March 4, 2008.
[5] The answer to the second question begins with the understanding that the notice requesting the arbitration was delivered on June 2, 2008. The difficulty, if there is one, is that the notice was left at the main general reception area of the Financial Services Commission. Counsel for the applicant relies on the Rules of Procedure of the Commission. Rule 6.1 requires that to be filed, a document must be delivered to the Dispute Resolution Group. The Dispute Resolution Group is on a different floor. No one knows whether the application was directed to the correct floor on the same day, June 2, 2008, or at some later date. In this case, the Director’s Delegate relied on Rule 81.1(b) to decide that Rule 6.1 was satisfied by delivering the notice to the general reception. It was within his authority to make such a determination. That determination did not constitute an extension of the statutory limitation.
[6] Quite apart from the reasons provided by the Director’s Delegate, counsel for the applicant conceded that he was unable to prove it was not filed on the correct floor on June 2, 2008. Thus, in any event, he failed to discharge the onus on him to establish a breach of the limitation period.
[7] The application for judicial review is dismissed.
JENNINGS J.
[8] I have endorsed the back of the Application Record, “This application is dismissed for oral reasons of the Court delivered today. Costs payable forthwith by the applicant to the respondent, fixed at $4,000.00 inclusive.”
JENNINGS J.
ASTON J.
LEDERER J.
Date of Reasons for Judgment: June 20, 2011
Date of Release: July 13, 2011
CITATION: Dominion of Canada General Insurance Co. v. Monks, 2011 ONSC 3881
DIVISIONAL COURT FILE NO.: 14/10
DATE: 20110620
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND LEDERER JJ.
BETWEEN:
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Applicant
– and –
JODI MONKS
Respondent
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Reasons for Judgment: June 20, 2011
Date of Release: July 13, 2011