CITATION: Knot v. State Farm Automobile Insurance Company, 2020 ONSC 7672
DIVISIONAL COURT FILE NO.: DC-18-0000-0034-0000 DATE: 20201210
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Lisa Knot Appellant/Respondent
– and –
State Farm Mutual Automobile Insurance Company Respondent/Moving Party
COUNSEL: John Bruggeman, for the Respondent on the motion Tim Crljenica, for the Moving Party
HEARD at Toronto by videoconference: December 9, 2020
REASONS FOR JUDGMENT
Favreau J.
Overview
[1] On April 10, 2018, the applicant, Lisa Knot, commenced an application for judicial review from a decision of the Director’s Delegate of the Financial Services Commission of Ontario (“FSCO”).
[2] The respondent, State Farm Mutual Automobile Insurance Company (“State Farm”), brings a motion to dismiss the application for judicial review for delay.
[3] The application for judicial review was commended over 30 months ago. The applicant took no steps to perfect the matter until the eve of this motion. There is no satisfactory explanation for the delay and the delay is sufficiently long to be prejudicial on its face. In the circumstances, the motion is granted and the application for judicial review is dismissed.
Background
Proceedings before the Financial Services Commission of Ontario
[4] Ms. Knot was involved in two motor vehicles accidents. The first one occurred on November 23, 2012 and the second one on December 4, 2012. State Farm was the insurer for both accidents.
[5] Ms. Knot applied for statutory accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. State Farm paid accident benefits to Ms. Knot for a period of time.
[6] In 2015, after a dispute arose between the parties over the accident benefits, Ms. Knot commenced arbitration proceedings at FSCO under the relevant provisions at that time of the Insurance Act, R.S.O. 1990, c. 18.
[7] The parties entered into settlement negotiations. In 2017, the parties agreed that State Farm would pay Ms. Knot $18,000. However, when the parties exchanged settlement documents, they did not agree on the apportionment of that amount as between the two accidents. This was a matter of some importance to the parties because of a tort claim arising from the first accident. State Farm rescinded its most recent settlement offer once it became evident that Ms. Knot would not agree to its proposed apportionment of the settlement funds.
[8] Ms. Knot brought a motion to enforce the settlement, taking the position that apportionment was not part of or necessary to the settlement. In a decision dated August 24, 2017, Arbitrator Marshall Schnapp concluded that there was no binding settlement agreement between the parties because there had been no meeting of the minds.
[9] In August 2017, the parties participated in an arbitration over Ms. Knot’s claim for accident benefits. In a decision dated October 11, 2017, Arbitrator Marcel Mongeon dismissed Ms. Knot’s claim for accident benefits finding that the injuries resulting from both accidents were predominantly minor injuries.
[10] Following the release of Arbitrator Mongeon’s decision, Ms. Knot appealed Arbitrator Schnapp’s order dismissing her motion to enforce the settlement. The appeal was considered in writing by the Director’s Delegate Jeffrey Rogers in accordance with FSCO’s Dispute Resolution Practice Code. On April 10, 2018, the Director’s Delegate released a decision dismissing the appeal finding that Arbitrator Schnapp correctly found that there was no meeting of the minds over the settlement.
[11] Ms. Knot did not appeal Arbitrator Mongeon’s order dismissing her claim for accident benefits.
Proceedings before the Divisional Court
[12] On May 10, 2018, Ms. Knot served a “Notice of Appeal” on State Farm. While the document is titled “Notice of Appeal”, during the argument of the motion before me, counsel for both sides agreed that there is no right of appeal from a decision of the Director’s Delegate. The only avenue to challenge such a decision is an application for judicial review and both sides agree that, despite the document being titled “Notice of Appeal”, the proceeding commenced by Ms. Knot in the Divisional Court is properly characterized as an application for judicial review.
[13] Following service of the notice of appeal, Ms. Knot did not take any steps to serve and file materials in support of the application for judicial review.
[14] State Farm’s evidence on the motion is that its lawyer contacted Ms. Knot’s lawyer twenty times by telephone between November 2018 and July 2020 to inquire about the status of Ms. Knot’s materials. In addition, State Farm’s lawyer wrote to counsel for Ms. Knot on September 24, 2018, October 29, 2019 and January 16, 2020. In the last two letters, the issues of delay and prejudice were raised.
[15] During the hearing, counsel for Ms. Knot advised that the materials in support of the application for judicial review were served on State Farm’s counsel the day before the hearing.
Analysis
[16] As held by this Court in The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014, at para. 14, “[j]udicial review is an extraordinary equitable and discretionary remedy which can be denied in the face of excessive delay”.
[17] The test developed by this court for determining whether an application for judicial review should be dismissed for delay is as follow:
a. Has the delay been excessive?
b. Is there a reasonable explanation for the delay?
c. Is there prejudice arising from the delay?
See Canadian Chiropractic Association, at para. 15.
[18] As held in De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para.12, a single judge of the Divisional Court should not dismiss an application for judicial review except in the clearest of cases.
[19] In my view, this is a clear case and the application for judicial review should be dismissed for delay.
Length of the delay
[20] The Divisional Court has consistently held that delays of more than six months in commencing an application for judicial review and more than twelve months in perfecting an application for judicial review are excessive and can be serious enough to warrant dismissal for delay: Gigliotti v. Conseil d’administration du Collège des Grands Lacs, at para. 30.
[21] In this case, while there was no excessive delay in commencing the application for judicial review, there was a delay of over 30 months in perfecting the application for judicial review.
[22] During the hearing before me, counsel for Ms. Knot argued that I should have regard to Rule 61.13 of the Rules of Civil Procedure which deals with motions for dismissal for delay to a registrar in the context of an appeal. He argued that, given that the application was perfected before the hearing of State Farm’s motion, there is no basis for dismissing the application for delay.
[23] While Rule 61.13 applies to appeals, Rule 68.06 of the Rules of Civil Procedure contains similar provisions that apply to applications for judicial review. However, that Rule deals with motions for delay made to the Registrar. In those cases, the Rule does give the respondent an opportunity to perfect an application for judicial review within 10 days of receipt of the notice.
[24] However, the motion in this case was brought to a judge and is to be decided in accordance with the common law test developed by this Court set out above. In any event, Ms. Knot did not perfect her application for judicial review within the ten-day timeframe set out in Rule 68.06. State Farm served its materials on Ms. Knot’s lawyer on November 5, 2020, which is over one month before Ms. Knot perfected her application for judicial review.
[25] Accordingly, based on the jurisprudence of this Court, the 30 month delay in perfecting the application for judicial review is excessive and it was not cured by service of Ms. Knot’s materials on the eve of the motion.
Explanation for the delay
[26] Ms. Knot’s explanation for the delay is unsatisfactory.
[27] In response to the motion, counsel who represented Ms. Knot before FSCO, Robert Kostyniuk, swore an affidavit. There is no affidavit from Ms. Knot. Mr. Kostyniuk’s affidavit goes through a lengthy history of the proceedings from the time of the accident to the hearing of the motion before me. Most of this evidence is irrelevant to the period of delay between the commencement of the application for judicial review and the date of the motion.
[28] With respect to the relevant time period, Mr. Kostyniuk explains that, after the dismissal of the appeal by the Director’s Delegate, he had difficulty finding Ms. Knot. She moved from Hamilton to Montreal, and he was only able to locate her in March of 2020. He says that “[f]or a host of reasons, including the legal and insurance proceedings, she’d given up, and had moved back to Montreal…” He goes on to say that he told her that he would be prepared to act for her on a contingency fee or pro bono. He claims that he then received a notice that Court proceedings were suspended due to COVID and understood that regular court proceedings did not resume until September 14, 2020. He then contacted his client in November 12, 2020, at which time she said she wanted to continue with her “appeal”.
[29] Counsel’s explanation for the delay is unhelpful. It may explain why he did not perfect the application for judicial review but it does not explain why Ms. Knot did not pursue the matter. In fact, what his explanation demonstrates is that Ms. Knot showed no interest in proceeding with the application for judicial review until he was able to locate her. In addition, he only received confirmation that she wished to proceed with the application for judicial review after State Farm served its materials on this motion. Without any evidence from Ms. Knot explaining her failure to pursue the application for judicial review, I find that there is no valid explanation for the delay.
[30] Mr. Kostyniuk also explains in his affidavit that, while the amount at issue is relatively small, the issues are important because the apportionment of damages between the two accidents is relevant to Ms. Knot’s tort claim. The importance of the application for judicial review is not relevant to explaining the delay. In fact, if the issue was so important one would have expected Ms. Knot to pursue it diligently. In any event, given that there is no settlement and that Ms. Knot did not sign any document acknowledging the apportionment proposed by State Farm, it is hard to see how the application for judicial review has any relevance to the tort claim.
Prejudice to the respondent
[31] In several cases, this Court has found that prejudice is presumed where the delay is lengthy: for example, Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501, at para. 9; and Toronto District School Board v. Child and Family Services Review Board, 2019 ONSC 7064, at para. 28.
[32] In this case, I am satisfied that the delay is long enough to lead to a presumption of prejudice.
[33] State Farm argues that there is actual prejudice in this case because FSCO was disbanded in 2019 and, normally, FSCO is entitled to notice of the application for judicial review and to participate on the application. While this would not have been sufficient on its own for me to make a finding of prejudice, it does underscore the length and impact of the delay in this case.
Conclusion
[34] In conclusion, the motion is granted and the application for judicial review is dismissed.
[35] State Farm seeks $2,106.36 in costs on the motion. Ms. Knot’s counsel concedes that this amount is reasonable. I agree. State Farm is entitled to costs in the amount of $2,106.36 all inclusive to be paid within 30 days.
___________________________ Favreau J.
Released: December 10, 2020
CITATION: Knot v. State Farm Automobile Insurance Company, 2020 ONSC 7672
DIVISIONAL COURT FILE NO.: DC-18-0000-0034-0000 DATE: 20201210
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Lisa Knot Appellant/Respondent
– and –
State Farm Mutual Automobile Insurance Company Respondent/Moving Party
REASONS FOR JUDGMENT
FAVREAU J.
Released: December 10, 2020