Robert Conway

The applicant insurer sought judicial review of a Director's Delegate's decision which found that the respondent insured was not precluded from proceeding to arbitration.

The insurer had denied the insured's claim for a non-earner benefit but failed to provide a copy of the medical report it relied upon until more than two years later.

The Divisional Court held that the Director's Delegate's decision was reasonable, as the failure to provide the medical report meant the insurer provided incomplete reasons for the denial, and thus the two-year limitation period did not commence until the report was finally provided.

The appellant appealed a decision of the Financial Services Tribunal revoking his mortgage agent licence.

The Tribunal found that his past conduct, including a conflict of interest and recklessness with client funds, afforded reasonable grounds to believe he would not deal in mortgages with integrity and honesty.

The Divisional Court upheld the Tribunal's findings on the merits as reasonable.

However, because the Tribunal imposed the most draconian penalty (revocation) without providing reasons as to why lesser penalties were not appropriate, the Court remitted the matter back to the Tribunal solely to reconsider the issue of penalty.

Following the release of the court's reasons for judgment on an appeal, the respondent Aviva Canada Inc. requested that the court reopen its decision based on a recently released Supreme Court of Canada decision regarding the standard of review.

Aviva argued that the new decision altered the applicable standard of review from reasonableness to correctness due to concurrent jurisdiction provisions in the Insurance Act.

The court denied the request, noting that the parties did not agree an error had been made and finding that it was not in the interests of justice to withdraw the reasons and rehear the case on the merits.

The applicant sought judicial review of a Director's Delegate's decision dismissing her appeal of an Arbitrator's interlocutory order.

The Arbitrator had found that the insurer's failure to comply with notice requirements before terminating income replacement benefits did not entitle the applicant to ongoing benefits prior to a hearing on the merits.

The Divisional Court dismissed the application, finding that the Director's Delegate's decision to reject the interlocutory appeal was a reasonable exercise of discretion under the Dispute Resolution Practice Code.

The applicant insurer sought judicial review of a Director's Delegate's decision finding that the respondent suffered a catastrophic impairment under s. 2(1.1)(g) of the Statutory Accident Benefits Schedule.

The Divisional Court granted the application and set aside the decision, holding that the Delegate erred in law by concluding that a marked impairment in only one of four areas of functioning was sufficient for a catastrophic impairment designation.

The Court further held that the Delegate erred by failing to exclude pain associated with physical injuries when assessing impairment due to mental or behavioural disorder, as required by the AMA Guides incorporated into the legislation.

The Ontario Trial Lawyers Association (OTLA) brought a motion for leave to intervene as a friend of the court in an application for judicial review concerning the interpretation of catastrophic impairment.

The applicant opposed the motion, arguing OTLA's interest was indirect and the case involved straightforward statutory interpretation.

The court granted the motion, finding that OTLA had expertise, could provide a broader perspective on the legislative scheme, and its participation would not prejudice the parties.

Leave to intervene was granted subject to conditions.

The applicant insurer sought judicial review of a Director's Delegate decision which upheld an arbitrator's finding that the Motor Vehicle Accident Claims Fund was not required to pay statutory accident benefits.

The arbitrator found no nexus between the claimant and the Fund, concluding the claimant's choice to apply to the Fund was arbitrary.

Applying a reasonableness standard of review, the Divisional Court upheld the decision, noting the claimant provided no rational basis for applying to the Fund.

The application for judicial review was dismissed.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which allowed the insured to rescind a settlement agreement.

The Director's Delegate found that the Settlement Disclosure Notice did not properly describe the benefits available to the self-employed insured and was improperly signed by the insurer's counsel rather than hand-signed by the insurer.

The Divisional Court held that the Director's Delegate's decision regarding the inadequate description of benefits was reasonable, as the notice failed to account for the insured's self-employment losses.

Although the court found the Director's Delegate's reasoning regarding the signature requirement to be unreasonable, the application for judicial review was dismissed based on the inadequate benefits description.

The insured was injured in a motor vehicle accident and subsequently developed a crack cocaine addiction.

He applied for attendant care benefits to supervise him and prevent drug abuse, which the insurer denied on the basis that he was not catastrophically impaired.

An arbitrator later found the insured was catastrophically impaired and ordered the insurer to pay past attendant care benefits, even though the insured had not actually received or paid for the care during that period.

The Director's Delegate upheld this decision.

On judicial review, the Divisional Court dismissed the insurer's application, holding that it was not patently unreasonable to interpret 'incurred' as including reasonable and necessary expenses that would have been provided but for the insurer's improper denial of benefits.

The applicant sought costs following a successful judicial review application.

The parties agreed that costs should be awarded on a partial indemnity basis.

The applicant claimed $10,796.66, while the respondent argued for a lower amount.

The Divisional Court considered the respondent's conduct, which might have warranted solicitor and client costs, but also noted that the arguments were substantially similar to those at the lower level, allowing for economies in preparation.

Applying the principle of reasonable expectations, the court awarded the applicant $9,203.49 in total costs.

The Superintendent of Financial Services appealed a Divisional Court order that vacated a Tribunal's revocation of Sussman Mortgage Funding Inc.'s licence and substituted a lesser penalty with terms.

The Court of Appeal agreed that the Tribunal erred by not allowing Sussman to make penalty submissions, but found the Divisional Court erred in law by failing to provide reasons for substituting the penalty.

The Court of Appeal allowed the appeal in part, remitting the matter to a differently constituted Tribunal to assess the penalty based on the original findings of conduct.

The appellant appealed and the respondent cross-appealed an order of the Divisional Court.

The Court of Appeal agreed with the Divisional Court's interpretation of s. 8 of the Statutory Powers Procedure Act and found no merit in the other grounds raised on the cross-appeal, including the costs order imposed by the Tribunal.

The cross-appeal was dismissed with no costs.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Arbitrator had found that a treatment provider forged the insureds' signatures to commence an arbitration for accident benefits after the claim was already settled.

The Arbitrator added the provider as a party and ordered him to pay the arbitration expenses due to his flagrant abuse of process.

The Director's Delegate overturned the expense order, finding the Arbitrator lacked jurisdiction to make such an order against a non-party.

The Divisional Court quashed the Director's Delegate's decision, holding that section 23(1) of the Statutory Powers Procedure Act grants the tribunal broad powers to control its process, including the jurisdiction to order an abuser of the process to compensate innocent parties for expenses incurred.

The appellant appealed a Tribunal decision finding breaches of the Mortgage Brokers Act and revoking its licence.

The Divisional Court dismissed the appeal on the merits, finding no breach of the Statutory Powers Procedure Act, ample evidence of regulatory breaches, and no apprehension of bias.

However, the Court allowed the appeal regarding the penalty, finding the Tribunal erred in law by imposing licence revocation without allowing submissions on penalty, considering alternatives, or reviewing similar cases.

The revocation order was set aside and replaced with conditions on the appellant's licence.