Court File and Parties
CITATION: Lucas-Logan v. Certas Direct Insurance Company, 2017 ONSC 828
COURT FILE NO.: CV-15-21829
DATE: 20170202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eunice Lucas-Logan Plaintiff
– and –
Certas Direct Insurance Company and Emeryville Collision CSN Defendants
Eunice Lucas-Logan, acting in person
Amanda Faulkner, for the Defendant, Certas Direct Insurance Company No one appearing for the Defendant, Emeryville Collision CSN
HEARD: January 31, 2017
DECISION ON MOTION
Thomas j.:
[1] This is a motion brought by the self-represented plaintiff, Eunice Lucas-Logan (“Lucas-Logan”), to amend the statement of claim in this action. The defendants take the position that the amendments she proposes are barred by statute. Counsel for the defendant Certas Direct Insurance Company (“Certas”) argued the motion and is supported in her position by counsel for the co-defendant Emeryville Collision CSN (“Emeryville”).
Background
[2] Lucas-Logan was involved in a motor vehicle accident on March 16, 2013. She sought accident benefits from her insurer Certas.
[3] On August 18, 2014, Lucas-Logan applied to the Financial Services Commission of Ontario (“FSCO”) to mediate entitlement to a single claim, for dental treatment at a cost of $3,312. For reasons that are not clear, a mediation was never held.
[4] On February 3, 2015, Lucas-Logan, acting on her own, issued the statement of claim in this action. The action appears to seek the dental treatment that was the subject of the application for mediation, as well as property damage claims, claims for conspiracy, claims for mental distress as well as other relief. Certas defended the action on the basis that Lucas-Logan could not litigate claims in respect of accident benefits that were not the subject of a failed FSCO mediation.
[5] On October 23, 2015, Lucas-Logan applied to FSCO to mediate 15 additional claims for accident benefits. She then retained counsel and was represented by counsel at the March 23, 2016 mediation. Following the mediation, a Report of Mediator was provided that listed 30 claims for accident benefits that were the subject of a failed mediation.
[6] On March 30, 2016, the plaintiff, via her then counsel, moved the aforementioned 30 issues into arbitration by commencing an arbitration at FSCO. However, on September 9, 2016, the plaintiff terminated counsel and withdrew her application for arbitration for the stated reason that she did not want to proceed with this matter. FSCO complied with her request and closed its file.
[7] Lucas-Logan maintains that she always wanted to litigate these claims and had never instructed her counsel to consider arbitration.
[8] Lucas-Logan proposes extensive amendments to her original statement of claim to include the matters of the failed arbitration as well as several disputed payments that were never the subject of any arbitration as well as damages for bad faith, breach of contract and punitive damages. The proposed amendments include claims related to the repair work undertaken on the Lucas-Logan vehicle by the defendant Emeryville.
[9] She requested that the defendants consent to her amendments and the defendants refused. Lucas-Logan then brought this motion for leave to amend her statement of claim.
Analysis
[10] Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, routinely allows for leave to amend a pleading on appropriate terms unless the resulting prejudice cannot be compensated by costs or an adjournment.
[11] Certas maintains that should I allow the amendments sought, it will circumvent the appropriate application of the relevant sections of the Insurance Act, R.S.O. 1990, c. I.8 (Insurance Act), as it has been amended.
[12] The relevant sections of the Insurance Act direct how an insured may dispute the insurer’s delivery of accident benefits available pursuant to the policy.
[13] The directing statute was amended effective April 1, 2016, and the circumstances here require a review of the legislation both before and after that date:
Legislation before April 1, 2016
279.(1) Dispute resolution, procedure to be followed – Disputes in respect of any insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled shall be resolved in accordance with sections 280 to 283 and the Statutory Accident Benefits Schedule.
280.(1) Mediation – Either the insured person or the insurer may refer to a mediator any issue in dispute in respect of the insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which the insured person is entitled.
281.(1) Litigation or arbitration – Subject to subsection (2).
(a) the insured person may bring a proceeding in a court of competent jurisdiction;
(b) the insured person may refer the issues in dispute to an arbitrator under section 282; or
(c) the insurer and the insured person may agree to submit any issue in dispute to any person for arbitration in accordance with the Arbitration Act, 1991.
(2) Limitation – No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under section 282 or agree to submit an issue for arbitration in accordance with the Arbitration Act, 1991 unless mediation was sought, mediation failed and, if the issues in dispute were referred for an evaluation under section 280.1, the report of the person who performed the evaluation has been given to the parties.
[14] By proclamation on April 1, 2016, Schedule 3 of the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, S.O. 2014, c. 9, came into effect. The legislation, specifically Ontario Regulation 664, allowed for the claims commenced before the transition date (April 1, 2016) to continue:
21.(1) A proceeding described in subsection (2) that was commenced but not completed before the transition date is continued after that date.
(2) The proceedings referred to in subsection (1) are the following:
A mediation under section 280 of the pre-transition date Act.
A proceeding in a court of competent jurisdiction brought in accordance with clause 281(1)(a) of the pre-transition date Act.
An arbitration under section 282 of the pre-transition date Act.
An appeal under section 283 of the pre-transition date Act.
An application for a variation or revocation of an order under subsection 284 of the pre-transition date Act.
(6) For greater certainty, if mediation fails, a court proceeding or arbitration may not be commenced on or after the transition date but the insured person or the insurer may apply to the Licence Appeal Tribunal under subsection 280(2) of the Act.
[15] Sections 280(1) and (2) of the Insurance Act now direct all disputes initiated after the transition date must proceed to the Licence Appeal Tribunal:
280.(1) Resolution of disputes – This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
(2) Application to Tribunal – The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).
(3) Limit on court proceedings – No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.
[16] In my view, Lucas-Logan can continue to litigate her original statement of claim and the relief sought therein subject to the defences contemplated by the defendants. That court proceeding related to the first application to mediate a dental claim. The application was received by the FSCO dispute resolution services on August 18, 2014. There continues to be an issue as to whether that claim was ever mediated but that is not an issue I need to attempt to resolve.
[17] The second application received a failed mediation report dated March 23, 2016. That report itemizes 22 issues which were considered by the mediator and remained unresolved.
[18] After receiving the failed report, Lucas-Logan’s counsel elected to refer the matter to arbitration pursuant to s. 281(1)(b) of the Insurance Act, still in force at that time. Counsel’s representation was terminated by Lucas-Logan who then, for her own reasons, withdrew the arbitration request in September 2016.
[19] To allow her to amend her original statement of claim to include the failed issues from the March 2016 mediation would effectively circumvent the effect of the amendment and the law as it existed after April 1, 2016.
[20] Upon the withdrawal of the request to arbitrate, Lucas-Logan’s only option if she wished to continue her dispute was to apply to the Licence Appeal Tribunal.
[21] She is not left without recourse regarding those matters which were the subject of the failed mediation report of March 23, 2016. Those matters can be referred to the Tribunal. Certas, in its factum and in argument, concedes the correctness of that approach.
[22] There is an issue that relates to the proposed amendments related to the relief claimed against Emeryville. Those claims do not fall under the umbrella of accident benefits and are not affected by the legislative amendments.
[23] The motion as presently constructed, however, makes these claims less than clear and should the plaintiff wish to continue in her attempt to amend against Emeryville, a simple and more focussed motion and proposed pleading should be filed.
Conclusion
[24] This motion to amend the statement of claim is dismissed. Lucas-Logan may apply to the Licence Appeal Tribunal to attempt to resolve those issues which were part of the failed mediation of March 23, 2016. In addition, she may continue to litigate the action commenced by her original statement of claim.
[25] If costs of this motion cannot be resolved between the parties, I will receive written submission within 30 days of the release of these reasons. The written submissions are to be limited to five (5) typed pages each and sent to the attention of the trial coordinator of the Superior Court of Justice in Windsor. Should I not receive those submissions as directed, there will be no order as to costs.
Original signed by Justice Bruce Thomas
Bruce Thomas
Justice
Released: February 2, 2017
CITATION: Lucas-Logan v. Certas Direct Insurance Company, 2017 ONSC 828
COURT FILE NO.: CV-15-21829
DATE: 20170202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eunice Lucas-Logan
Plaintiff
– and –
Certas Direct Insurance Company and Emeryville Collision CSN
Defendants
Decision on motion
Thomas J.
Released: February 2, 2017