COURT FILE NO.: CV-19-619949
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WAWANESA MUTUAL INSURANCE COMPANY, Applicant (Appellant in the Appeal)
AND:
UNICA INSURANCE INC., Respondent (Respondent in the Appeal)
BEFORE: Glustein J.
COUNSEL: Katherine E. Kolnhofer, for the Applicant (Appellant in the Appeal)
Philip Tyborski, for the Respondent (Respondent in the Appeal)
HEARD: May 27, 2021
reasons for decision
Overview
1The applicant, Wawanesa Mutual Insurance Company (Wawanesa), appeals from the decision dated April 15, 2019 (the Decision) of the arbitrator Guy Jones (the Arbitrator), in which the Arbitrator held that Wawanesa had not established that Mr. Ketheeswaran Arunagirinathan (Arunagirinathan) and Ms. Geeta Singh (Singh) were spouses under s. 224(1)(c)(ii) of the Insurance Act, R.S.O. 1990, c. I. 8.
2Consequently, the Arbitrator held that Wawanesa was in priority for payment of accident benefits to or on behalf of Arunagirinathan, arising out of a motor vehicle accident that occurred on April 1, 2016 (the Accident).
3Arunagirinathan and Singh were parents of a child. Wawanesa sought arbitration for an order that Arunagirinathan and Singh “lived together in a conjugal relationship outside marriage … in a relationship of some permanence”, as defined under s. 224(1)(c)(ii).
4The Arbitrator considered the applicable characteristics of a conjugal relationship (as established in settled law) and then reviewed the evidence before him relevant to those characteristics. The Arbitrator heard evidence from Arunagirinathan and Singh (as well as from Arunagirinathan’s father). The Arbitrator also reviewed evidence from surveillance conducted at Singh’s residence, taken over the periods of May-June 2017, January-February 2018, and December 2018.
5The Arbitrator held:
(i) It was “very difficult to give any weight” to Arunagirinathan’s evidence due to inconsistencies between (a) his examination under oath (EUO) evidence, (b) his contradictory statements to various doctors who conducted medical assessments, and (c) his evidence at the hearing (which was inconsistent with his EUO evidence). The Arbitrator held that Arunagirinathan’s evidence was “unreliable and generally unacceptable, except when supported by documentary evidence and/or surveillance”;
(ii) With respect to Singh’s evidence, the Arbitrator “would tend to discount it considerably” because he “found her to be vague and evasive”. He found Singh to be “aggressive, vague and less than forth right as it related to her relationship with Mr. Arunargirinathan” [sic].1 The Arbitrator stated that he “was generally hesitant to accept her evidence when documents and/or the surveillance might suggest something else”;
(iii) Arunagirinathan’s father, “[d]ue to language issues at the hearing and only limited contact with his son … provided very little insight into the issues in question at the hearing”;
(iv) The notes of the doctors and caregivers introduced at the hearing “are some what contradictory and give some support for both positions”; and
(v) While “[t]he surveillance evidence certainly paints a picture of a very close relationship between Mr. Arunargirinathan and Ms. Singh …. [i]t must, however, be balanced with all the other evidence and that it was conducted well after the accident”.
6Consequently, the Arbitrator concluded that:
The onus is on the Applicant [Wawanesa] in this matter, and on balance I find that while Mr. Arunargirinathan and Ms. Singh did have a very close relationship, on the evidence before me, it falls short of the criteria to make them spouses within the meaning of section 224(1)(c)(ii) of the Insurance Act at the time of the accident. Wawanesa is therefore in priority for payment of accident benefits to or on behalf of Mr. Arunargirinathan.
7Wawanesa submits that the Arbitrator made an extricable error in law, which is subject to review on a correctness standard. Wawanesa submits that the Arbitrator ought to have given more weight to the surveillance evidence in light of Arunagirinathan’s EUO evidence and that if he had done so, he would have found that Arunagirinathan and Singh met the criteria to be considered spouses under s. 224(1)(c)(ii). Consequently, Wawanesa asks the court to make that finding on the evidence based on the correctness standard.
8The respondent, Unica Insurance Inc. (Unica), submits that the Arbitrator made no extricable error of law, but instead applied and weighed the evidence before him to the appropriate legal characteristics of a conjugal relationship. Unica submits that the Arbitrator had evidence to support his finding that Wawanesa had not met its onus to establish that Arunagirinathan and Singh were spouses, and, as such, the court should not interfere with the Arbitrator’s decision since there is no palpable and overriding error.
9For the reasons that follow, I agree with Unica and dismiss the appeal.
Background
10The Decision arises from a priority dispute under s. 268(5) of the Insurance Act, s. 3. (1) of Ontario Regulation 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS) and s. 7(1) of Ontario Regulation 283/95: Disputes Between Insurers (DBI).
11The priority dispute arose from an accident benefits claim made by Arunagirinathan as a result of injuries he allegedly sustained in the Accident. Arunagirinathan was operating a vehicle owned by his father. The father’s vehicle was insured by Wawanesa. Arunagirinathan is a listed driver on that policy of insurance.
12Arunagirinathan applied for accident benefits with Wawanesa. His OCF-1 form seeking such benefits was received by Wawanesa on July 29, 2016.
13On October 25, 2016, Wawanesa put Unica on notice of a priority dispute. Unica insures Singh. Arunagirinathan and Singh are the natural parents of a child. Wawanesa took the position that they are “spouses” under s. 224(1)(c)(ii), which would result in Unica being the priority insurer for the payment of Arunagirinathan’s accident benefits under s. 268 of the Insurance Act and under s. 3. (1) of the SABS (which defines an “insured person” to include a spouse of a named insured as defined under s. 224(1)(c)(ii)).
14Wawanesa initiated arbitration under s. 7(1) of the DBI on February 8, 2017. The Arbitrator was proposed by Wawanesa and was subsequently appointed.
15The arbitration hearing took place on February 5, 2019 to determine whether Unica was the priority insurer for payment of Arunagirinathan’s accident benefits. The issue before the Arbitrator was whether Wawanesa could establish that Arunagirinathan and Singh were “spouses” at the time of the Accident in accordance with s. 224(1)(c)(ii).
16The Arbitrator held that (i) Wawanesa had not met its onus to establish that Arunagirinathan and Singh were spouses at the time of the Accident, and (ii) as such, Wawanesa was the priority insurer for payment of accident benefits to or on behalf of Arunagirinathan. Wawanesa appeals from the Decision.
Evidence before the Arbitrator
17Wawanesa did not submit that the Arbitrator erred in any factual finding in his Decision.
18Instead, Wawanesa submits that the Arbitrator erred by allegedly failing to (i) rely on the surveillance and Arunagirinathan’s EUO evidence to find that Arunagirinathan and Singh were spouses, or (ii) set out clear and “transparent” reasons why the surveillance evidence was not determinative. Wawanesa submits that these alleged errors constitute an extricable error of law that requires the court to apply a standard of correctness and set aside the Decision.
19Consequently, I review the evidence which was before the Arbitrator, since Wawanesa’s position must be considered in light of that evidence.
Arunagirinathan’s EUO evidence
20Arunagirinathan was examined under oath on October 7, 2016. His EUO evidence related to his relationship with Singh at the time of the Accident (and up to the date of his EUO) can be summarized as follows:
(i) He and Singh were romantically and sexually involved;
(ii) He and Singh had “been together for a long time,” having started dating in 2002;
(iii) He and Singh were parents of a daughter born in October 2008;
(iv) He and Singh referred to each other as “boyfriend” and “girlfriend”;
(v) He resided with his parents but spent on average two nights per week at Singh’s residence;
(vi) At the time of the Accident, he would see Singh “maybe every other day” and saw her more often post-accident;
(vii) Singh, their daughter, and Arunagirinathan spent time together as a family, including eating together and celebrating holidays together;
(viii) His parents (a) considered Singh to be, “like … my spouse, even though we’re not legally married” and (b) were “always telling me that I should get married to her”;
(ix) He provided Singh with $500 per month in child support, and also contributed to “whatever [his daughter] needs”, including school supplies, books and clothing; and
(x) Singh had been doing “almost everything” for him since the Accident, including grocery shopping, cooking, laundry, and whatever else he may need.
Evidence from medical assessment reports
21Arunagirinathan gave inconsistent evidence as to his relationship with Singh to the numerous persons who conducted assessments of him for his accident benefits claim.
22Arunagirinathan advised Dr. MacKay at an assessment on October 6, 2016 (one day before his EUO) that:
(i) He had been in a romantic relationship with Singh for approximately 14 years;
(ii) They had never lived together, but he stayed there frequently;
(iii) His romantic relationship with Singh had been ongoing since they were young; and
(iv) He should have asked Singh to marry him some time ago. He had subsequently asked her on several occasions but she declined.
23However, in five other assessments, Arunagirinathan did not describe a similar relationship. I summarize that evidence as follows:
(i) He advised Dr. Alikhan in an assessment on June 27, 2016 (less than three months after the Accident) that (a) he was single; (b) Singh was the primary caregiver; and (c) he saw his daughter every day or every other day;
(ii) At an October 26, 2016 assessment, he advised Dr. Yee that (a) he was single and (b) he lived with his parents with laundry facilities in the basement;
(iii) At a September 21, 2018 assessment, he advised the kinesiologist Dawn Rynberk that he lived in a house with his parents;
(iv) At an October 9, 2018 assessment, he advised Dr. Yufe that, with respect to his “social history”, he was single, lived with his parents, and had a daughter who lived with her mother; and
(v) At a November 20, 2018 assessment, he advised Dr. Lau that (a) he lived with his parents, a younger sister, and her 13-year old son; (b) he was on “speaking terms” with Singh; (c) he saw his daughter three to four times a week; (d) his family was doing the heavier duty housework; and (e) he was not dating anyone.
24Further, for each of his nine assessments or appointments which required a taxi, Arunagirinathan was picked up at his home address, except for one occasion at which he requested to be picked up at Singh’s address. Arunagirinathan testified at the hearing that he (i) repeatedly told the company Wawanesa hired to take him to assessments that he did not live at Singh’s address, and (ii) advised the company to put Arunagirinathan’s home address back in its file.
Singh’s EUO evidence
25Singh was examined under oath on June 4, 2018. Her evidence directly contradicted Arunagirinathan’s evidence about their relationship at the time of the Accident (and up to the date of his EUO). I summarize her EUO evidence as follows:
(i) She lived only with her daughter at her home and no one assisted her in paying the mortgage or household expenses;
(ii) She denied Arunagirinathan’s evidence that (a) they were romantically involved both at the time of the Accident and at the time of his EUO; (b) they were sexually exclusive since 2002; and (c) his parents regarded him as her spouse. She said “[s]o we are not romantically involved, nor were we at the time of the accident. 2002 sounds about right as a time that we got together, but after our daughter was born [October 2008] and – so we’ve been separated for a long time. Since – probably since she was like 2”;
(iii) She confirmed that she and Arunagirinathan were on very good terms – they were friends before they had a child together and remained very good friends. Singh stated that she encouraged Arunagirinathan to be a big part of his daughter’s life and that they were on “good terms as co-parents”;
(iv) Singh thought that counsel may have misunderstood Arunagirinathan as to his EUO evidence about the details of their relationship;
(v) Singh confirmed that Arunagirinathan saw his daughter “as much as he can”, and that he could see her “every day” if he wanted to do so;
(vi) Singh denied that she, Arunagirinathan, and their daughter spent time together “as a family”. Her evidence was that Arunagirinathan “spends time with his daughter” and that it was rare that the three of them were all together;
(vii) Singh stated that Arunagirinathan “maybe” spent the night at her house twice per week in the year before the Accident, but that he would only do so if she had an early meeting or some other issue and needed someone to watch her daughter. Singh confirmed that Arunagirinathan would stay over at her house following the Accident, although she could not say how many times per week;
(viii) Singh agreed that Arunagirinathan might have stayed overnight when the surveillance was conducted but that if so, “I don’t have a problem with” Arunagirinathan staying the night since he occasionally did so;
(ix) Singh acknowledged that she might have had lunch with Arunagirinathan on February 3, 2018, as observed on surveillance, but that she feels “[i]t’s important to me that my child knows her father and feels like he’s part of her life”. Singh stated that Arunagirinathan “[d]efinitely [does] not” live at her home;
(x) Singh advised that she, Arunagirinathan, and their daughter sometimes celebrated holidays together to try to give their daughter a family experience. However, Singh stated that she rarely attended family events with Arunagirinathan and the two did not exchange gifts on special occasions;
(xi) Singh denied helping Arunagirinathan with any housekeeping, laundry, meal preparation, or day to day tasks in the year before the Accident or since. She stated that “I do those things for my daughter, not for him”;
(xii) When Arunagirinathan stayed over, he would sleep in his daughter’s room or on the couch;
(xiii) It was possible that she and Arunagirinathan were “intimate” in the year before the Accident, but not possible that they were “regularly intimate”; and
(xiv) Arunagirinathan did not provide Singh with any regular financial assistance but would pay for things when he took his daughter out. The mortgage on her home was in her name and Arunagirinathan did not help with the mortgage payments.
26At her EUO, Singh was also asked about the first two rounds of surveillance. She did not admit to being aware of what the surveillance captured, such as admitting that the tow truck in her driveway was driven by Arunagirinathan or that he stayed the night. In responding to these inquiries, she used terms such as “I’m not sure”, “maybe”, “I wasn’t keeping track”, “It’s possible”, and other similar terms.
27Similarly, Singh responded that “maybe” she had lunch with Arunagirinathan and their daughter, when surveillance showed that they, in fact, did go to lunch together.
Surveillance evidence
28Wawanesa does not take issue with the Arbitrator’s factual findings of the surveillance evidence, which took place over May-June 2017, January-February 2018, and December 2018. I rely on the Arbitrator’s review of the lengthy evidence which sets out the following facts:
(i) On five of the six days of surveillance in May and June 2017, Arunagirinathan’s tow truck was seen parked on Singh’s driveway very early in the morning;
(ii) During the second surveillance, which covered four days across January and February 2018:
(a) Arunagirinathan’s tow truck was parked at Singh’s residence on each day;
(b) Arunagirinathan started Singh’s car and removed snow from her car. He then returned to her residence;
(c) Arunagirinathan entered and exited Singh’s driveway and then drove away;
(d) Arunagirinathan drove Singh to a restaurant where they stayed for about one hour; and
(e) Arunagirinathan drove his daughter from Singh’s residence to his parents’ address and then returned to Singh’s residence; and
(iii) During the third surveillance, which took place over seven days in December 2018 (just before and after the Christmas holiday),
(a) Arunagirinathan’s tow truck was parked at Singh’s residence on each day;
(b) Arunagirinathan worked on cars in Singh’s driveway and entered and exited the residence by way of the front door and garage;
(c) Arunagirinathan took the garbage to the curb;
(d) Arunagirinathan was seen exiting the residence and driving with his daughter;
(e) Arunagirinathan exited and reentered Singh’s house through the front door, wearing different slacks and shoes compared to those he had when he entered the house;
(f) Arunagirinathan, Singh, and their daughter drove to Stouffville to the residence of Singh’s parents;
(g) Arunagirinathan left the Singh residence and went shopping, returning to the Singh residence with packages; and
(h) Singh left her residence with her daughter while Arunagirinathan remained at the residence.
Arunagirinathan’s evidence at the arbitration hearing
29At the arbitration hearing, Arunagirinathan gave the following evidence:
(i) He did not recall saying that Singh was his girlfriend at his EUO. He stated that “I’m pretty sure I said we’re not together. She was my girlfriend. We have a kid together but we are no longer in a relationship”;
(ii) They separated a few years before the Accident;
(iii) His parents do not characterize Singh as his girlfriend – “[t]hey know we’ve separated [and that] we’re not together”;
(iv) Both he and Singh dated other people at the time of the Accident;
(v) He had asked Singh to marry him after their daughter was born but Singh “turned me down because she wanted to get married before my daughter was born but that didn’t happen so now it’s like the offer is off the table … we just drifted apart”;
(vi) Singh and Arunagirinathan did not participate in any social activities together. Rather, when their daughter was participating in sporting events they would attend independently to watch her play;
(vii) When he is at Singh’s residence, he is “spending time with my daughter, watch tv, help her with homework, just play with her”;
(viii) When asked to explain his EUO evidence that he was romantically involved with Singh at the time of the Accident, Arunagirinathan stated, “I have feelings for her and stuff like that … if I could … I would be romantically involved with her but we’re not.”
(x) He would leave his tow truck at Singh’s house overnight since there were burglaries in the area so that people would think that there is someone in the house. He would then get rides from friends or take an Uber back to his parents’ house, which is a 15 minute drive away;
(xi) His friend stored his car at Singh’s residence since he wanted Arunagirinathan to take a look at it; and
(xii) He acknowledged on cross-examination that:
(a) He still has romantic feelings for Singh;
(b) He helps out as much as he can financially with his daughter;
(c) His parents like Singh and get along with her;
(d) He visited Singh’s residence several times per week around the time of the Accident;
(e) He has the pass code to Singh’s garage;
(f) He cleans snow off Singh’s car and warms up her car for her;
(g) He and Singh attended a restaurant together;
(h) His father stores his car in Singh’s garage;
(i) He has a spare key to Singh’s residence that he can use “whenever he wants”;
(j) He performed housekeeping tasks at Singh’s house including repairing cars and taking out the recycling and garbage, when neither Singh nor his daughter were home;
(k) It was possible that he kept clothes and shoes at Singh’s residence; and
(l) He spent the entire holidays in December 2018 at Singh’s house because Singh was very sick over the holiday period and Arunagirinathan stayed to help take care of their daughter.
Singh’s evidence at the arbitration hearing
30Singh’s evidence at the hearing was consistent with her EUO evidence. She stated that (i) her relationship with Arunagirinathan at the time of the Accident was that of co-parents, and (ii) they were not together.
31Singh also stated that Arunagirinathan’s tow truck was parked at her driveway as a result of break-ins in her area, as she asked Arunagirinathan to leave his vehicle at her house at night.
32Singh also gave evidence that:
(i) She and Arunagirinathan “co-parent”;
(ii) Arunagirinathan, their daughter, and Singh attended at her parents’ house over the holidays in December 2018;
(iii) Arunagirinathan is a “great father” and he had asked her to marry him in the past;
(iv) Arunagirinathan will spend evenings at her house while she and her daughter are home;
(v) Arunagirinathan is the first person she will call when something comes up with her daughter;
(vi) Arunagirinathan is “free to come and go as he likes” at her house;
(vii) Arunagirinathan has access to a set of keys at her house;
(viii) A vehicle possibly owned by Arunagirinathan was parked in her driveway in 2017 and 2018 and Arunagirinathan worked on this vehicle when Singh was not home;
(ix) Arunagirinathan took out the garbage and recycling at Singh’s house when she and her daughter were not home;
(x) Arunagirinathan spent the December 2018 holidays at her home because Singh was very sick over the holiday period and Arunagirinathan stayed to help take care of their daughter;
(xi) Arunagirinathan’s father’s vehicle was parked in her garage;
(xii) Arunagirinathan had the pass code for Singh’s garage; and
(xiii) Arunagirinathan might have left clothes at her house.
The Decision
The Arbitrator’s review of the evidence
33The Arbitrator referred to much of the above evidence. In particular:
(i) At p. 5 of his reasons, as summarized at para. 20 above, the Arbitrator set out relevant evidence from Arunagirinathan’s EUO, including staying at Singh’s residence an average of two nights per week, being romantically involved prior to and at the time of the Accident, being sexually exclusive, referring to each other as boyfriend and girlfriend, and often eating meals together and celebrating holidays together;
(ii) At p. 6 of his reasons, the Arbitrator stated that Arunagirinathan had “presented the relationship in a very different light” at the arbitration hearing (as summarized at para. 29 above), noting Arunagirinathan’s evidence that (a) “he was no longer romantically involved with Ms. Singh and had not been for a long time prior to the accident”; (b) they were not sexually exclusive; and (c) he was aware Singh “had been seeing other persons”. The Arbitrator held that Arunagirinathan “gave no reasonable explanation for changing his testimony in this area or for other contradictions in his evidence”;
(iii) At p. 6 of his reasons, the Arbitrator reviewed Singh’s EUO evidence as summarized at paras. 25-27 above;
(iv) At pp. 7-9 of his reasons, the Arbitrator reviewed the evidence related to Arunagirinathan’s assessments, as summarized at paras. 21-24 above; and
(v) At pp. 9-13 of his reasons, the Arbitrator reviewed the surveillance evidence summarized at para. 28 above, including the evidence of Arunagirinathan and Singh about the surveillance.
34Both parties agree that the Arbitrator correctly set out the evidence upon which he relied in the Decision.
The Arbitrator’s assessment of the credibility of Arunagirinathan and Singh
35The Arbitrator noted that there was conflicting evidence from the witnesses as to whether they were spouses under the s. 224(1)(c)(ii) definition. The Arbitrator held (at p. 13):
It was agreed by both parties that the couple have had a child but other then [sic] that there is very little agreement. Certainly if one believes the evidence of Ms. Singh at both her examination under oath and at the hearing they would not meet the definition of spouses. Based on Mr. Arunargirinathan’s testimony, at the examination under oath, if believed, they would most likely meet the definition, however, for reasons best known to Mr. Arunargirinathan he totally changed his testimony at the hearing and if that testimony were to be believed they again would not meet the test.
36With respect to the credibility of the witnesses at the hearing, the Arbitrator held that neither Arunagirinathan nor Singh were credible, and that the evidence of Arunagirinathan’s father provided very little insight into the “co-parent” or “spouse” issue. The Arbitrator stated:
(i) “I believe it is important to comment briefly upon the credibility of the witnesses as it plays a very important role in determining the facts of this case” (at p. 4);
(ii) “[Arunagirinathan was] at very best a completely inconsistent witness, who provided conflicting evidence at his examination under oath and at the hearing with no reasonable explanation given for the conflicting evidence. I have no hesitation in finding his evidence unreliable and generally unacceptable, except when supported by documentary evidence and/or surveillance” (at p. 4);
(iii) “Mr. Arunargirinathan gave no reasonable explanation for changing his testimony [from that at his EUO] in this area [on the issue of romantic involvement] or for other contradictions in his evidence” (at p. 6);
(iv) Singh was “aggressive, vague, and less than forth right as it related to her relationship with Mr. Arunargirinathan” and, “[w]hile slightly more credible then [sic] Mr. Arunargirinathan, I was generally hesitant to accept her evidence when documents and/or surveillance might suggest otherwise” (at pp. 4-5);
(v) “I found the evidence of both Mr. Arunargirinathan and Ms. Singh to be unreliable” (at p. 7); and
(vi) “Due to language issues at the hearing and only limited contact with his son”, the evidence of Arunagirinathan’s father (upon which neither party relies on this appeal) “provided very little insight into the issues in question at the hearing” (at p. 5).
The Arbitrator’s review of the inconsistent assessment reports
37With respect to the evidence related to the assessments, the Arbitrator held that “the doctors and caregivers notes are some what contradictory and give some support for both positions” (at p. 14).
The Arbitrator’s assessment of the surveillance evidence
38The Arbitrator reviewed the surveillance evidence in detail. He held that it was of “limited value” because it was “conducted well after the accident in question”, and as such, he considered it “[w]ith this significant reservation” (at pp. 9-14).
39The Arbitrator held that the surveillance evidence “may give us … some insight as to their pre-accident relationship” but that it only established that they had “a very close relationship” which, when “balanced with all the other evidence and [the fact] that it was conducted well after the accident”, was not sufficient to establish a conjugal relationship (at pp. 9 and 14).
The Arbitrator’s review of the law
40In his consideration of the applicable law (at p. 3), the Arbitrator held that the criteria to determine a conjugal relationship were those set out as the “seven different areas of interactions between the couple” in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3. Those criteria addressed “shelter, sexual and personal behaviour, services, social, societal, economic support, and children”.
41The Arbitrator then discussed additional relevant criteria to determine whether a conjugal relationship exists. He relied on his earlier unreported decision in Wawanesa Mutual Insurance Company v. Kingsway General Insurance Company (April 2005), in which he considered “duration of the relationship, existence of children, stability of the relationship, interdependence of the parties, cohabitation, conjugal relationship, personal relations, responsibility for household services, interactions in family and social context, financial arrangements and support, temporary interruptions in physical living arrangements, expectations of the parties and intentions of the parties” (at p. 4).
42The Arbitrator relied (at p. 4) on his conclusion in the unreported Kingsway case that “not all the components had to exist in order for there to be [sic] spousal relationship and some individual components might be more important than others”.
43The Arbitrator further noted (at p. 13), that under Stephen v. Stawecki, 2006 CanLII 20225 (Ont. C.A.), a case relied upon by Wawanesa, “having two separate residences is not fatal to being spouses”.
44The parties do not challenge that the Arbitrator applied the correct legal test to determine the relevant factors for the existence of a conjugal relationship.
The Arbitrator’s conclusion
45After reviewing all of the evidence, the Arbitrator held that Wawanesa had not established that Arunagirinathan and Singh were in a conjugal relationship of some permanence under s. 224(1)(c)(ii).
46The Arbitrator did not find that Arunagirinathan and Singh were co-parents, nor did he find that they were spouses. Rather, he found that Wawanesa had not met its onus, and, as such, Wawanesa was the priority insurer for accident benefits to or on behalf of Arunagirinathan (at p. 14).
47The Arbitrator held (at p. 14):
In summary, there was a great deal of conflicting evidence put before me, and it essentially comes down, in my view, to a question of were Mr. Arunargirinathan and Ms. Singh simply co-parenting or were they spouses within the meaning of section 224(1)(c)(ii) of the Insurance Act. It is clear from the surveillance that Mr. Arunargirinathan and Ms. Singh had a much closer relationship that [sic] they testified to at the hearing. They did provide explanations for the very frequent presence of Mr. Arunargirinathan’s tow truck and his presence, albeit belatedly. Having said that, Mr. Arunargirinathan gave such inconsistent testimony that it is very difficult to give any weight to it. While Ms. Singh’s evidence was more consistent, as mentioned above, I found her to be vague and evasive to the point where I would tend to discount it considerably. The doctors and caregivers notes are some what contradictory and give some support for both positions. The surveillance certainly paints a picture of a very close relationship between Mr. Arunargirinathan and Ms. Singh. It must, however, be balanced with all the other evidence and that it was conducted well after the accident. The onus is on the Applicant [Wawanesa] in this matter, and on balance I find that while Mr. Arunargirinathan and Ms. Singh did have a very close relationship, on the evidence before me, it falls short of the criteria to make them spouses within the meaning of section 224(1)(c)(ii) of the Insurance Act at the time of the accident. Wawanesa is therefore in priority for payment of accident benefits to or on behalf of Mr. Arunargirinathan.
Analysis
48There are two issues on this appeal. First, the court must consider the appropriate standard of review. Second, the court must consider whether, on that standard, the appeal of the Decision should be granted.
49I address each of these issues below.
Issue 1: The standard of review
50There are two standard of review issues before the court on this appeal.
51First, based on the principles set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, the court must determine whether the Decision is subject to a reasonableness standard or to an appellate review standard.
52Second, if an appellate review standard applies, the court must consider whether the standard of appellate review is one of (i) palpable and overriding error (if the error is one of fact or mixed finding of fact and law that does not arise from an extricable legal error), or (ii) correctness (if the error is one of law or a mixed finding of fact and law that raises an extricable error of law). The legal principles that address this issue are set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
53I address each query below.
Does a reasonableness or appellate standard of review apply?
54In the present case, both parties agree that an appellate standard of review applies, based on the principles set out in Vavilov. The court held, at para. 37:
It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.
55In Allstate Insurance Company v. The Motor Vehicle Accident Claims Fund, 2020 ONSC 830, (2002), 149 O.R. (3d) 761, Davies J. applied the test in Vavilov to an appeal from an arbitrator’s decision on a priority dispute. Davies J. reviewed the appeal rights from the arbitrator’s decision under s. 45 of the Arbitration Act, 1991, S.O. 1991, c. 17 and held, at paras. 16-18:
(i) “The standard of review applied by the court must reflect the legislature’s intent”;
(ii) “When the legislation incudes a statutory appeal mechanism, that signals that the legislature intends the court to perform an appellate function in respect of that decision and the court hearing the appeal is to apply appellate standards of review”; and
(iii) The applicable appellate standard of review is to be determined with reference to the nature of the question as set out in Housen (citing Vavilov, at paras. 36-37).
56I also adopt the reasons of LeMay J. in Intact Insurance Company v. The Dominion of Canada General Insurance Company and Wawanesa Mutual Insurance Company, 2020 ONSC 7982, (2020), 154 O.R. (3d) 781, in which he reviewed the Vavilov decision in the context of an appeal from an arbitrator’s priority dispute decision and held that an appellate standard of review applied. He held that “based on my review of the relevant caselaw and for the reasons set out above, I conclude that I am bound to apply the appellate standards to review of the Arbitrator’s decision”: at para. 42.
57I adopt the reasons of both Davies J. in Allstate and of LeMay J. in Intact and find that the appellate standard of review applies in the present appeal.
Is the appellate standard of review correctness or palpable and overriding error?
58I first consider the applicable law and then apply the law to the present appeal.
(i) The applicable law
59The decision of the Supreme Court in Housen sets the criteria for the court to determine the appropriate appellate standard of review.
60Findings of fact are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”: Housen, at para. 10.
61A question of law is subject to a “correctness” standard of review: Housen, at para. 8.
62A question of mixed fact and law arises upon “the application of a legal standard to a set of facts”. The appellate court must determine whether the lower court applied the correct test to the facts, or made an extricable error in law by applying an incorrect test or failing to take into consideration factors under the appropriate legal standard: Housen, at para. 27.
63If the question of mixed fact and law does not raise an extricable error of law, the palpable and overriding error standard of review applies: Housen, at para. 28.
64The court must consider where the purported error falls on “a spectrum of particularity”. Cases that raise “a general principle that might qualify as a principle of law” fall on the correctness standard, but cases which consider “a very particular set of circumstances” without an issue of general principle are subject to the higher standard of palpable and overriding error: Housen, at para. 28, citing Canada (Director of Investigation and Research) v. Southam, 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 37.
65In Housen, Iacobucci and Major JJ. summarized the test, at para. 36:
To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
66The test for whether an appeal raises an extricable error of law was considered by the Supreme Court in Southam, cited by LeMay J. in Intact at para. 44. In Southam, the court held, at paras. 35, 37, and 39:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.
By contrast, the matrices of facts at issue in some cases are so particular, indeed so unique, that decisions about whether they satisfy legal tests do not have any great precedential value. If a court were to decide that driving at a certain speed on a certain road under certain conditions was negligent, its decision would not have any great value as a precedent. In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact. See R. P. Kerans, Standards of Review Employed by Appellate Courts (1994), at pp. 103-108. Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future.
However, the respondent says that, having informed itself correctly on the law, the Tribunal proceeded nevertheless to ignore certain kinds of indirect evidence. Because the Tribunal must be judged according to what it does and not according to what it says, the import of the respondent's submission is that the Tribunal erred in law. After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.
67The court in Housen reviewed the basis for applying the palpable and overriding error test. Iacobucci and Major JJ. stated, at paras. 1, 3, and 4:
A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge's reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge's decision if there was some evidence upon which he or she could have relied to reach that conclusion.
The role of the appellate court was aptly defined in Underwood v. Ocean City Realty Ltd. (1987), 1987 CanLII 2733 (BC CA), 12 B.C.L.R. (2d) 199 (C.A.), at p. 204, where it was stated:
The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.
While the theory has acceptance, consistency in its application is missing. The foundation of the principle is as sound today as 100 years ago. It is premised on the notion that finality is an important aim of litigation. There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result. Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.
68The court in Housen set out the test for palpable and overriding error, at paras. 5-6:
What is palpable error? The New Oxford Dictionary of English (1998) defines “palpable” as “clear to the mind or plain to see” (p. 1337). The Cambridge International Dictionary of English (1996) describes it as “so obvious that it can easily be seen or known” (p. 1020). The Random House Dictionary of the English Language (2nd ed. 1987) defines it as “readily or plainly seen” (p. 1399).
The common element in each of these definitions is that palpable is plainly seen. Applying that to this appeal, in order for the Saskatchewan Court of Appeal to reverse the trial judge the “palpable and overriding” error of fact found by Cameron J.A. must be plainly seen. As we will discuss, we do not think that test has been met.
69Under the palpable and overriding error standard, an appellate court does not interfere with the trial judge’s decision to weigh or assess the evidence. In Housen, Iacobucci and Major JJ. state, at paras. 18 and 23:
The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected
We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. … The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts.
70Under the palpable and overriding error standard, “one must be able to ‘put one’s finger on’ the crucial flaw, fallacy or mistake” of the trial judge. The “appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error”: H. L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 70.
71Based on the above case law, I summarize the relevant principles:
(i) The standard of review of a question of fact is palpable and overriding error. A question of fact is a question about what actually took place between the parties;
(ii) The standard of review of a question of law is correctness. A question of law is a question about what the correct legal test is;
(iii) A question of mixed fact and law is a question about whether the facts satisfy the legal tests. The standard of review of a question of mixed fact and law is palpable and overriding error, unless the appellant can establish an extricable error of law;
(iv) An extricable error of law arises either when there is a dispute over a general proposition that might qualify as a principle of law which would have precedential value or when the decision-maker fails to consider a relevant factor under the correct legal test;
(v) If the decision-maker makes no extricable error of law, but rather makes a decision that applies the correct law to a particular set of circumstances, the palpable and overriding standard of review applies; and
(vi) Under the palpable and overriding error test, the court shall not interfere with the decision of the trial judge unless the error is “so obvious that it could be clearly seen” and the appellate court can identify the error with certainty.
(ii) Application of the law to the present appeal
1. Overview
72For the reasons that follow, I find that there is no extricable error of law in the Decision. Instead, the Arbitrator applied the evidence to the settled legal test based on the weight he determined to be appropriate. The Arbitrator concluded that the evidence “falls short of the criteria to make [Arunargirinathan and Singh] spouses within the meaning of section 224(1)(c)(ii) of the Insurance Act at the time of the accident”.
73Consequently, the appeal of the Decision is subject to a standard of review of palpable and overriding error.
2. The Arbitrator considered the proper law
74Wawanesa does not submit that the Arbitrator applied the incorrect legal test to the definition of spouse. All parties agree that M. v. H. is the leading case, in which the court held, at para. 59:
Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
75The above list was adopted by the court in M. v. H. as a non-exhaustive description of factors which could be considered by the court. As Blair J.A. held in Warwick v. Ministry of Community and Social Services (1979) 5 R.P.L. (2d) 325 (C.A.) (cited in Molodowich, 1980 CanLII 1537 (ON SC), [1980] O.J. No. 1904, at para. 16), “[t]he extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case.”
76In his reasons, the Arbitrator expressly set out the law in M. v. H. and his consideration of similar factors in his unreported Kingsway decision: at pp. 3-4. There is no suggestion that he set out the wrong test in law.
3. The Arbitrator made no extricable error of law
77Wawanesa relies on the decision of LeMay J. in Intact, in which the court found an extricable error of law because the Arbitrator held that a couple who lived in separate residences could be spouses under s. 224(1)(c)(i) of the Insurance Act, which defines a spouse as including two persons who have lived together in a conjugal relationship outside marriage “continuously for a period of not less than three years”.
78In Intact, LeMay J. relied on the reasons of Morgan J. in Royal and Sun Alliance v. Desjardins, 2018 ONSC 4284, in which the court held that “living together,” “continuously” under s. 224(1)(c)(i) could not arise when the persons maintained separate residences: Intact, at para. 81 (citing Royal and Sun Alliance, at para. 27). Consequently, LeMay J. held that there was an extricable error of law in the arbitrator’s analysis of a mixed question of fact and law which was subject to a correctness standard.
79However, in the present appeal, Wawanesa did not point to any error of general principle resulting in an extricable error of law. The Arbitrator considered the particular facts of the case, weighed the evidence, and held that Wawanesa had not met its onus to establish that Arunagirinathan and Singh were spouses, applying the proper legal factors.
80Consequently, there is no extricable error of law arising on the present appeal. Based on Housen, I apply a palpable and overriding error standard of review.
Issue 2: Is the palpable and overriding error test met on the appeal?
81Wawanesa relies on three grounds of appeal in its written submissions (quoted verbatim):
(i) The arbitrator failed to apply the evidence to the criteria as espoused by the Supreme Court of Canada in M. v. H. 1992 CanLII 106 (SCC), [1992] 2 S.C.R. 3;
(ii) The arbitrator failed to give effect to the case law cited in the submissions of the appellant; and
(iii) The arbitrator failed in his application of section 224(1)(c)(ii) of the Insurance Act.
82I address each of these submissions below.
Ground 1: Did the Arbitrator fail to apply the evidence to the M. v. H. criteria?
83This submission is linked to my analysis of the standard of review above.
84In particular, at the hearing and in its appeal submissions, Wawanesa conducts a lengthy review of the evidence. Wawanesa submits that the Arbitrator “reached no conclusion”, or “threw up his hands”, and failed to consider the evidence in light of the criteria set out in M. v. H. Wawanesa asks the court to substitute a conclusion that Arunagirinathan and Singh were spouses under s. 224(1)(c)(ii). I do not agree.
85The Arbitrator’s decision can be summarized as follows:
(i) The arbitration “essentially comes down, in my view, to a question of were Mr. Arunargirinathan and Ms. Singh simply co-parenting or were they spouses within the meaning of section 224(1)(c)(ii) of the Insurance Act”;
(ii) All of the evidence before the Arbitrator, including the surveillance evidence, was contradictory, unreliable and/or did not speak to the relevant time period;
(iii) Based on the lack of reliable evidence, the Arbitrator could not reach a conclusion on the question before him; and
(iv) As such, Wawanesa failed to meet its onus of proof.
86The Arbitrator’s decision that the evidence before him “falls short” of establishing that Arunagirinathan and Singh were spouses was a finding available to him on the evidence. In particular, there was evidence that:
(i) Arunagirinathan and Sing were unreliable witnesses;
(ii) The documentary evidence from the assessment reports was contradictory; and
(iii) The surveillance evidence (a) was of limited weight due to the length of time it was conducted after the Accident, and (b) in any event, was not sufficient to establish a conjugal relationship.
87Consequently, the Arbitrator was entitled to find that Wawanesa had not met its onus under s. 268 of the Insurance Act to establish, on a balance of probabilities, that Arunagirinathan and Singh were spouses under s. 224(1)(c)(ii). There was, at a minimum, “some evidence” which allowed him to reach that conclusion, and as such, the court should not interfere with the Decision.
88The Arbitrator (i) was mindful of the criteria in M. v. H., (ii) focused on the evidence relevant to those criteria and (iii) applied those criteria in his analysis.
89The Arbitrator was not required to provide a checklist confirming whether each of the criteria in M. v. H. applied. These criteria are only factors to be taken into account when assessing whether a relationship is conjugal. It is not a mathematical exercise where one can determine the answer based on how many boxes are checked off. The courts have emphasized that a flexible approach is necessary because the relationships of couples vary widely: M. v. H., at para. 60.
90Wawanesa submits that the Arbitrator failed to consider relevant evidence. However, a review of the Decision establishes that the Arbitrator considered the evidence relevant to the issue before him.
91Wawanesa does not point to any evidence that the Arbitrator failed to consider (let alone any evidence which could establish a palpable and overriding error). To the contrary, Wawanesa relies on the Arbitrator’s findings with respect to Arunagirinathan’s EUO evidence and the surveillance evidence, and, in effect, submits that the Arbitrator should have given more weight to that evidence and found that Arunagirinathan and Singh were spouses. Such an approach is not permitted under Housen, as appellate courts are not to “second guess” the trial judge’s assessment of the weight of the evidence, absent a palpable and overriding error (which Wawanesa does not raise).
92Separated but involved co-parents can remain friends and be actively involved in caring for their child. Such co-parents could reasonably participate in all of the activities seen in the surveillance, taking their daughter to visit grandparents for Christmas, having a lunch together, or brushing the snow off the other co-parent’s car. Consequently, the Arbitrator was not required to find that the surveillance evidence established a conjugal relationship at the time it was taken, let alone one to more than two and a half years earlier at the time of the Accident.
93Consequently, unlike in the decision of Continental Casualty Company v. Chubb Insurance Company of Canada, 2019 ONSC 3773, (2019), 146 O.R. (3d) 338, at para. 27 (relied upon by Wawanesa), the Arbitrator’s decision does contain a “proper analysis of the evidence before him” on the issue he was asked to address.
94In Continental Casualty, the court held that the arbitrator “failed to carry out the proper analysis, [the decision] is inconsistent with underlying legal principles, and the outcome ignores or cannot be supported by the evidence”: at para. 28. However, in the present case, the Arbitrator was asked to determine whether Wawanesa had met its onus to establish a conjugal relationship outside marriage of some permanence. He made that decision in accordance with the underlying legal principles in M. v H., and the decision was supported by the evidence.
95Further, even if the Arbitrator failed to address a particular piece of evidence, he was not required to do so. In Aviva Insurance v. Security National Insurance, 2017 ONSC 4924, Kristjansen J. held, at paras. 60-61 (citing N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708):
Aviva argues that the Arbitrator provided insufficient reasons for his decision and failed to consider or review all the applicable case law and authorities the appellant submitted. To determine whether the Arbitrator's reasons were sufficient, a reviewing court must ask whether the reasons assisted the court in understanding the decision's reasoning and conclusion, demonstrating justification, transparency and intelligibility. In Newfoundland Nurses, the Supreme Court of Canada held that the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (para. 14). The Arbitrator's reasons meet this standard. An administrative decision-maker is not required to set out every piece of evidence or deal with every argument.
In Newfoundland Nurses, Abella J. for the Court held at para. 16:
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion .... In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [Emphasis added].
96In the present case, the Arbitrator’s reasons assisted the court in understanding the Decision, demonstrating justification, transparency, and intelligibility. The Arbitrator was not required to make an explicit finding on each constituent element, however subordinate, leading to his final conclusion. His reasons demonstrate a thorough canvassing of the evidence before him.
97Consequently, I disagree with Wawanesa’s submission that “[t]he arbitrator failed to apply the evidence to the criteria as espoused by the Supreme Court of Canada in M. v. H. 1992 CanLII 106 (SCC), [1992] 2 S.C.R. 3”.
Ground 2: Did the Arbitrator fail to give effect to the case law cited in Wawanesa’s submissions?
98Wawanesa submits that “[t]he arbitrator failed to give effect to the case law cited in the submissions of the appellant”. I do not agree.
99In all of the cases relied upon by Wawanesa, there was no significant question before the arbitrator regarding the tasks that the individuals engaged in for, or with, each other at the time of the accident. Unlike in the present case, those cases were based on the facts where the majority of the Molodowich factors (other than living in the same residence) were satisfied, including regular shared involvement in such activities as household services and finances. By way of example:
(i) In Stephen v. Stawecki, 2006 CanLII 20225 (Ont. C.A.), the couple found to be in a conjugal relationship did almost everything together before the accident: at paras. 3-4;
(ii) In Alfred v. Allstate Insurance Co. of Canada, [1995] OICD No. 190, the couple found to be in a conjugal relationship only lived apart due to his job and respect for their particular cultural traditions. A month before the accident they had planned on getting married: at pp. 7-8;
(iii) In Thauvette v. Maylon, 1996 CanLII 8090 (ON SC), [1996] O.J. No. 1356 (Gen. Div.), the parties worked together and financially contributed to running a farm. Unlike the present case, the plaintiff in Thauvette paid the mortgage and all bills for the house where the plaintiff was living at the time of the accident and the defendant performed household duties for the plaintiff at the time of the accident including meal preparation and washing his clothes: at paras. 11, 41, and 43; and
(iv) In Wawanesa Mutual Insurance Company v. State Farm Insurance and Aviva (unreported decision of Arbitrator Bialkowski, April 11, 2017), there was no dispute that the couple called themselves boyfriend and girlfriend, shared a bed and housekeeping tasks and ran a household like husband and wife: at p. 5.
100Further, in each of the cases relied upon by Wawanesa, the adjudicator was able to rely on the evidence of one or both of the individuals in the spousal relationship with respect to the nature of their relationship at the time of the accident. In the present case, the Arbitrator found the evidence of both Arunagirinathan and Singh to be unreliable and was then asked to reach a conclusion primarily based on surveillance conducted well after the Accident.
101In any event, the Arbitrator recognized the principle in Stephen, as relied upon by Wawanesa, that individuals do not have to live in the same residence to be in a conjugal relationship under s. 224(1)(c)(ii).
102Finally, even if any of Wawanesa’s cases applied more directly to the present case, the Arbitrator was not required to address every case or submission raised by Wawanesa. As I discuss above, his reasons assisted the court in understanding his reasoning and conclusion, and demonstrated justification, transparency, and intelligibility: Aviva Insurance, at paras. 60-61.
103Consequently, I disagree with Wawanesa’s submission that the Arbitrator failed to give effect to the case law cited by Wawanesa.
Ground 3: Did the Arbitrator fail in his application of section 224(1)(c)(ii) of the Insurance Act?
104Wawanesa submits that the Arbitrator failed to provide any assessment explaining what portion of section 224(1)(c)(ii) was not met in this case, since he “made no finding regarding whether or not Mr. Arunagirinathan and Ms. Singh were involved in a conjugal relationship or lived together in a relationship of some permanence.” I do not agree.
105The Arbitrator was not required to determine whether Arunagirinathan and Singh were spouses. Rather, he was required to determine whether Wawanesa satisfied its onus under s. 268 of the Insurance Act to establish that Unica was the priority insurer on the basis that Arunagirinathan and Singh were spouses under s. 224(1)(c)(ii).
106The Arbitrator weighed the conflicting and inconclusive evidence before him to find that Wawanesa had not met its onus. That is a proper application of his role, which requires him to determine the priority dispute. It rests on Wawanesa to meet the onus to establish a conjugal relationship, which the Arbitrator decided Wawanesa failed to do.
107The issue before the Arbitrator was a priority dispute which Wawanesa brought on the basis that it was required to establish that Arunagirinathan and Singh were spouses. The Arbitrator properly addressed himself to the question before him and found that Wawanesa had not met that onus. The Arbitrator thus concluded that Wawanesa was the priority insurer. There was no palpable and overriding error in that decision, for which there was, at a minimum, “some evidence upon which [the Arbitrator] could have relied to reach that conclusion”: Housen, at para. 1.
108In effect, Wawanesa asks the court to “retry a case and … substitute its views for the views of the [Arbitrator] according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities”: Housen, at para. 3. Wawanesa asks this court to give more weight to the surveillance evidence and Arunagirinathan’s EUO evidence than was given by the Arbitrator. Such an approach is not permitted under the Housen standard of review.
109The Arbitrator, having considered the evidence, did not find that the surveillance evidence was sufficient to satisfy Wawanesa’s onus. The Arbitrator was not prepared to accept any of Arunagirinathan’s or Singh’s evidence since he found them both to be unreliable witnesses.
110In such circumstances, an appellate court cannot be “certain” that the Arbitrator erred in his decision. Wawanesa has been unable to (i) establish any error which is “clear to the mind or plain to see” or (ii) “put [its] finger on the crucial flaw, fallacy or mistake”: Housen, at para. 5; H. L., at para. 70.
111Consequently, I disagree with Wawanesa’s submission that the Arbitrator failed in his application of section 224(1)(c)(ii) of the Insurance Act.
Order and costs
112For the above reasons, I dismiss the appeal. Counsel agreed that costs would be fixed at $5,000 (inclusive of HST and disbursements) for the successful party. I find that amount to be very reasonable, given the lengthy factums, cross-examinations, research, and detailed preparation required for the hearing.
113Consequently, I order Wawanesa to pay costs of $5,000 (inclusive of HST and disbursements) to Unica within 30 days of this order.
GLUSTEIN J.
Date: 20210614