FSCO A09-00641
Dennis Ferguson (Applicant)
ING (Insurer)
February 22 & 23, 2010
Resons for Decision
Issues:
Mr. Ferguson was injured in a motor vehice accident on August 23, 2007. He applied and received SABs from ING payable under Schedule. An issue arose concerning the amount of income replacement benefits to which Mr. Ferguson was entitled and the parties were unable to resolve their dispute through mediation. Mr. Ferguson applied for arbitration at the FSCO.
The issues in this hearing are:
1. Was Mr. Ferguson an employee or self-employed at the time of the accident?
2. What is the amount of the income replacement benefit to which Mr. Ferguson is entitled pursuant to section 6 of the Schedule, from Aug. 30, 2007 onwards?
3. Is Mr. Ferguson entitled to interest for the overdue payment of income replacement benefits pursuant to section 46(2) of the Schedule?
Results:
1. Mr. Ferguson was employed as an employee at the time of the accident.
2. The amount of the income replacement benefit to which Mr. Ferguson is entitled is $294.12 per week from August 30, 2007.
3. Mr. Ferguson is entitled to interest for the overdue payment of the income replacement benefits, calculated in accordance with s. 46(2) of the Schedule.
Wednesday, September 8, 2010
FSCO, Kevin Tam and Wawanesa Mutual Insurance Company
FSCO A07-002163
Kevin Tam (Applicant)
Wawanesa Mutual Insurance Company (Insurer)
July 5, 2010
Decision on Expenses
Issues:
Mr. Tam was injured in a motor vehicle accident on July, 21, 2003. He applied for SABs from Wawanesa payable under the Schedule. Issues arose between the parties concerning the Applicant's entitlement to certain SABs.
Interim decisions in this matter on January 30, 2009 and December 2, 2009. Following about 32 hours of actual hearing time, spread out over eight days, on May 20, 2010 a decision was issued that decided the Applicant's claims for statutory accident benefits. The issues in that hearing were the following:
1. Is Mr. Tam entitled to receive a non-earner benefit.
2. Is Mr.Tam entitled to receive medical and rehabilitation benefits
3. Is Mr. Tam entitled to payments for the cost of Dr. Glickman's report, Dr. Kevin Rod's report, and Dr. Dana Wilson's report.
4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
5. Is Wawabesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?
6. Is Wawanesa liable to pay Mr. Tam's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
7. Is Mr. Tam liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Results:
1. Mr. Tam is not entitled to receive a non-earner benefit.
2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.
3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.
4. Mr. Tam is entitled to interest for the overdue payment of the cost of the prescripption medication set out above.
5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
6. The decision on expenses is deferred at the request of the parties.
The issue in this further hearing is:
1. Is either party liable to pay the other party's expenses incurred in respect of this arbitration hearing?
Result:
The Applicant shall pay to the Insurer its expenses of this proceeding related to the aborted hearing of Jan. 26, 2009, fixed in the amount of $2000.00. With respect to all other expenses related to this proceeding, the parties shall otherwise each bear their own expenses.
Kevin Tam (Applicant)
Wawanesa Mutual Insurance Company (Insurer)
July 5, 2010
Decision on Expenses
Issues:
Mr. Tam was injured in a motor vehicle accident on July, 21, 2003. He applied for SABs from Wawanesa payable under the Schedule. Issues arose between the parties concerning the Applicant's entitlement to certain SABs.
Interim decisions in this matter on January 30, 2009 and December 2, 2009. Following about 32 hours of actual hearing time, spread out over eight days, on May 20, 2010 a decision was issued that decided the Applicant's claims for statutory accident benefits. The issues in that hearing were the following:
1. Is Mr. Tam entitled to receive a non-earner benefit.
2. Is Mr.Tam entitled to receive medical and rehabilitation benefits
3. Is Mr. Tam entitled to payments for the cost of Dr. Glickman's report, Dr. Kevin Rod's report, and Dr. Dana Wilson's report.
4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
5. Is Wawabesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?
6. Is Wawanesa liable to pay Mr. Tam's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
7. Is Mr. Tam liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Results:
1. Mr. Tam is not entitled to receive a non-earner benefit.
2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.
3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.
4. Mr. Tam is entitled to interest for the overdue payment of the cost of the prescripption medication set out above.
5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
6. The decision on expenses is deferred at the request of the parties.
The issue in this further hearing is:
1. Is either party liable to pay the other party's expenses incurred in respect of this arbitration hearing?
Result:
The Applicant shall pay to the Insurer its expenses of this proceeding related to the aborted hearing of Jan. 26, 2009, fixed in the amount of $2000.00. With respect to all other expenses related to this proceeding, the parties shall otherwise each bear their own expenses.
FSCO, Julia Gordyukova and Dominion of Canada General Insurance Company
FSCO A08-002589
Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010
Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.
In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.
Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.
Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?
Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.
Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010
Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.
In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.
Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.
Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?
Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.
FSCO, Sivakumaru Sinnapu and Economical Mutual Insurance Company
FSCO A09-000900
Sivakumaru Sinnapu (Applicant)
Economical Mutual Insurance Company (Insurer)
Heard January 28, 2010
Issues:
Mr. Sinnapu was injured in a motor vechicle accident on June 22, 2006. He applied for and received SABS from Economical, payable under the Schedule. Economical terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the FSCO under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is if Mr. Sinnapu is entitled to a special award.
Results:
Mr. Sinnapu is entitled to a special award.
Evidence and Analysis:
Sivakumaru Sinnapu (Applicant)
Economical Mutual Insurance Company (Insurer)
Heard January 28, 2010
Issues:
Mr. Sinnapu was injured in a motor vechicle accident on June 22, 2006. He applied for and received SABS from Economical, payable under the Schedule. Economical terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the FSCO under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is if Mr. Sinnapu is entitled to a special award.
Results:
Mr. Sinnapu is entitled to a special award.
Evidence and Analysis:
- A special award is unique to the arbitration process. It is a statutory award that is outlined in subsection 282 (10) of the Insurance Act
- The threshold for such an award, reasonableness, is rather low and is merely triggered by a withholding or delay of payments that is unreasonable. No ill-will, no intent to harm an insured, delay, or intentionally withhold payments is necessary, merely that the delay or withholding be "unreasonable."
- I find that there is no specific evidence of malice or intent to harm. Nor indeed was any specific malice alleged by Mr. Sinnapu. Rather, I find it more likely that Economical's efforts to adjust this file for some unknown reason went off the rails at the two-year mark, and as a result decisions were taken that ignored Mr. Sinnapu's reality and caused much tribulation to a vulnerable person.
- I find that in accepting Dr. Lexier's conclusions on employment, in the face of contradictory evidence from experts in that field, Economical acted unreasonably. It made no apparent attempt to reconcile conflicting reports, or to weigh the value of Dr. Lexier's opinion in an area that was clearly outside his claimed expertise.
- The decision to discontinue benefits, based on this opinion, was unreasonable, a conclusion that in accordance with subsection 282 (10) of the Insurance Act mandates a special award.
- Failure of the Insurer to comply with the Schedule in discontinuing benefits. While there may well still be the possibility of entitlement to ongoing benefits in the face of a flawed discontinuance of payments, what is important in the context of this special award is whether or not an insurer should have known that it was obliged to reinstate until such time as the defective notice is properly addressed. Given the inconsistencies in the jurisprudence and this most recent statement from the Court of Appeal, I cannot accept that the Insurer can be somehow deemed to have such knowledge. Consequently, a withholding of benefits in the face of a flawed termination process need not necessarily be found unreasonable and so attract a special award.
Wednesday, August 25, 2010
CanLII, Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545
Safai v. Bruce N. Huntley Contracting Limited
Sasha Safai (minor), Litigation Guardian, Leslie Anne Wilkes, Joebeen Safai, Parissa Safai, Hormoz Safai and Gity Safai (Appellants, Plaintiffs)
and
Bruce N. Huntley Contracting Limited (Respondent, Defendant)
and between
Sasha Safai, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai, Gity Safai
and
Markham Property Services Ltd.
Introduction
The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On Feb, 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on Sept 27, 2006, they commenced a separate action against the company responsible for the winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgement based on the expiry of the six year limitation period.
Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgement. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.
The Appeal:
(1) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(2) The motion judge erred in failing to conclude on the test for summary judgement that the respondents had failed to establish that the limitation period in both actions had expired.
Analysis:
The discoverability rule has been developed and discussed in a number of cases in courts since the mid-1980s. Refers to Consumers Glass Co. v. Foundation Co. of Canada (1985), Peixeiro v. Haberman (1997), Fehr v. Jacob (1993), and Coutance v. Napoleon Delicatessen (2004).
As I read the reasons for judgement of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. I find no error in her articulation of the rule and would not give effect to the appellants' first ground of appeal.
As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.
In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.
Disposition:
I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action
Sasha Safai (minor), Litigation Guardian, Leslie Anne Wilkes, Joebeen Safai, Parissa Safai, Hormoz Safai and Gity Safai (Appellants, Plaintiffs)
and
Bruce N. Huntley Contracting Limited (Respondent, Defendant)
and between
Sasha Safai, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai, Gity Safai
and
Markham Property Services Ltd.
Introduction
The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On Feb, 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on Sept 27, 2006, they commenced a separate action against the company responsible for the winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgement based on the expiry of the six year limitation period.
Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgement. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.
The Appeal:
(1) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(2) The motion judge erred in failing to conclude on the test for summary judgement that the respondents had failed to establish that the limitation period in both actions had expired.
Analysis:
The discoverability rule has been developed and discussed in a number of cases in courts since the mid-1980s. Refers to Consumers Glass Co. v. Foundation Co. of Canada (1985), Peixeiro v. Haberman (1997), Fehr v. Jacob (1993), and Coutance v. Napoleon Delicatessen (2004).
As I read the reasons for judgement of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. I find no error in her articulation of the rule and would not give effect to the appellants' first ground of appeal.
As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.
In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.
Disposition:
I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action
Tuesday, August 10, 2010
FSCO, D'Ettorre and Coachman Insurance Company
Appeal P09-00029
Coachman Insurance Company (Appellant)
Alex D'Ettorre (Respondent)
Published: July 28, 2010
Hearing Date: January 18, 2010
Nature of Appeal:
Coachman Insurance Company (CIC) appeals the Arbitrator's order that The Nordic Insurance Company of Canada (The Nordic) is not precluded from proceeding in the name of Mr. Alex D'Ettorre.
Background:
Mr. D'Ettorre was injured in a motor vehicle accident on November 7, 2001 in a collision between his pickup truck and a trackor-trailor. CIC insured him, and The Nordic insured the trackor-trailer. Mr. D'Ettorre received income replacement benefits under the SABS 1996 from Coachman until it ceased payment in October 2005. Mr. D'Ettorre sought their reinstatement in mediation and then in arbitration. Mr. D'Ettorre also commenced a third-party tort claim against The Nordic's insureds.
On August 22, 2008, Mr. D'Ettorre settled his tort action, entered into minutes of settlement with The Nordic and signed a release. The release included an assignment to the Nordic of his SABS claim against Coachman. The Nordic recieved a concent judgment dated September 5, 2008, which repeated the terms of the settlement and the assignment and dismissed the action.
The Nordic purported to pursue the arbitration proceeding in Mr. D'Ettorre's name pursuant to the assignment, despite the provision in s. 65(1) of the SABS that the assignment of the right to pursue an arbitration proceeding is void. Coachman moved to prevent The Nordic from proceeding, on the basis that there had been no trial but merely a consent order, so the purported assignment was void.
The Arbitrator held that the consent judgement consituted an assignment pursuant to s. 267.8(12) and that Coachman's motion was an invalid collateral attack on the order, and that Nordic could continue with the arbitration. Coach then filed an appeal.
Analysis:
For the reasons that follow, I find there was no assignment pursuant to s. 267.8(12) of the Act that allows The Nordic to pursue arbitration in Mr. D'Ettorre's name and that the motion by Coachman was not a collateral attacj on the consent order.
The legislative context of the SABS and the Act does not provide that a consent order constitutes a judicially authorized assignment for the purposes of the exception to the assignment ban. Coachman’s motion to defend its rights was therefore not a collateral attack on the order.
I agree with Smith J.’s analysis in Stokes v. Desjardins groupe d’assurances générales. Stokes dealt with subs. (9) of s. 267.8, which requires the plaintiff to hold collateral funds received after the trial of the tort action in trust for the tort insurer. The parties in the tort action in Stokes reached an agreement and settled without a trial. The plaintiff then started a first-party
action, and the tort insurer sought to apply subs. (9), meaning that any funds Mr. Stokes obtained in his first-party action would have to be held for Group Desjardins. However, Smith J. held that subs. (9) only applies where a plaintiff recovers damages after a trial of the action.
The requirement for there to be a trial of the tort action in which the court awards damages is identical in subs. (12). An assessment of damages by a court means that the parties do not know beforehand what damages will be awarded, so even in an ex parte hearing the plaintiff has to prove them. That is not what happened here, as the parties agreed to the damages and settled on them before going to court. By its very nature, a settlement is different from a full assessment of damages, as noted in Stokes.
It is also not necessary to interpret the consent order as an order made after the trial of the action as part of the goal of preventing double recovery.
The Arbitrator therefore erred in finding that the consent order qualified as an order made under section 267.8 of the Act and thus qualified as an exception to the general ban on assignment under s. 65 of the SABS. The appeal is allowed, and the order is amended to show that The Nordic is precluded from proceeding in Mr. D’Ettorre’s name.
Expenses:
If the parties are unable to agree about expenses of this appeal, an expense hearing to determine the parties’ legal fees and disbursements may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
Coachman Insurance Company (Appellant)
Alex D'Ettorre (Respondent)
Published: July 28, 2010
Hearing Date: January 18, 2010
Nature of Appeal:
Coachman Insurance Company (CIC) appeals the Arbitrator's order that The Nordic Insurance Company of Canada (The Nordic) is not precluded from proceeding in the name of Mr. Alex D'Ettorre.
Background:
Mr. D'Ettorre was injured in a motor vehicle accident on November 7, 2001 in a collision between his pickup truck and a trackor-trailor. CIC insured him, and The Nordic insured the trackor-trailer. Mr. D'Ettorre received income replacement benefits under the SABS 1996 from Coachman until it ceased payment in October 2005. Mr. D'Ettorre sought their reinstatement in mediation and then in arbitration. Mr. D'Ettorre also commenced a third-party tort claim against The Nordic's insureds.
On August 22, 2008, Mr. D'Ettorre settled his tort action, entered into minutes of settlement with The Nordic and signed a release. The release included an assignment to the Nordic of his SABS claim against Coachman. The Nordic recieved a concent judgment dated September 5, 2008, which repeated the terms of the settlement and the assignment and dismissed the action.
The Nordic purported to pursue the arbitration proceeding in Mr. D'Ettorre's name pursuant to the assignment, despite the provision in s. 65(1) of the SABS that the assignment of the right to pursue an arbitration proceeding is void. Coachman moved to prevent The Nordic from proceeding, on the basis that there had been no trial but merely a consent order, so the purported assignment was void.
The Arbitrator held that the consent judgement consituted an assignment pursuant to s. 267.8(12) and that Coachman's motion was an invalid collateral attack on the order, and that Nordic could continue with the arbitration. Coach then filed an appeal.
Analysis:
For the reasons that follow, I find there was no assignment pursuant to s. 267.8(12) of the Act that allows The Nordic to pursue arbitration in Mr. D'Ettorre's name and that the motion by Coachman was not a collateral attacj on the consent order.
The legislative context of the SABS and the Act does not provide that a consent order constitutes a judicially authorized assignment for the purposes of the exception to the assignment ban. Coachman’s motion to defend its rights was therefore not a collateral attack on the order.
I agree with Smith J.’s analysis in Stokes v. Desjardins groupe d’assurances générales. Stokes dealt with subs. (9) of s. 267.8, which requires the plaintiff to hold collateral funds received after the trial of the tort action in trust for the tort insurer. The parties in the tort action in Stokes reached an agreement and settled without a trial. The plaintiff then started a first-party
action, and the tort insurer sought to apply subs. (9), meaning that any funds Mr. Stokes obtained in his first-party action would have to be held for Group Desjardins. However, Smith J. held that subs. (9) only applies where a plaintiff recovers damages after a trial of the action.
The requirement for there to be a trial of the tort action in which the court awards damages is identical in subs. (12). An assessment of damages by a court means that the parties do not know beforehand what damages will be awarded, so even in an ex parte hearing the plaintiff has to prove them. That is not what happened here, as the parties agreed to the damages and settled on them before going to court. By its very nature, a settlement is different from a full assessment of damages, as noted in Stokes.
It is also not necessary to interpret the consent order as an order made after the trial of the action as part of the goal of preventing double recovery.
The Arbitrator therefore erred in finding that the consent order qualified as an order made under section 267.8 of the Act and thus qualified as an exception to the general ban on assignment under s. 65 of the SABS. The appeal is allowed, and the order is amended to show that The Nordic is precluded from proceeding in Mr. D’Ettorre’s name.
Expenses:
If the parties are unable to agree about expenses of this appeal, an expense hearing to determine the parties’ legal fees and disbursements may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
Sunday, August 8, 2010
WSIAT website, June 1, 2010
Decision No. 877 10
- Experience rating (NEER)
- Negligence
- Transfer of costs (NEER)
The appellant employer was a placement agency. A worker of the appellant employer was injured while placed in temporary assignment. The Board determined that two other employers were responsible for the accident and that this employer was not responsible for any negligence.
The first other employer was a Schedule 1 employer, and the Board transferred 50% of the accident costs to the account of the first other employer. The second other employer was not registered with the board. The Board pursued an action against the second other employer but has not recovered any money. The appellant employer was not provided with any relief for the portion of the claim costs. The employer appealed the decision denying removal of the full costs of the claim from its account for NEEr purposes.
When the Board attributed negligence to the two other employers, it was not implicitly making a finding that no costs should be included in the appellant employer's cost records for NEER purposes. Section 84 of the WSIA provides for transfer costs, but it applies only to transfers between Schedule 1 employers, thus it did not apply to the second other employer.
Board policy provides for removal of costs only if and when the Board recovers from the second other employer, which has not happened yet. The appellent employerwas not entitled to removal of 100% of the costs of the claim. The appellant employer was not in a position to benefit effectively from this provision because it has already benefitted from the transfer of costs provision. The appeal was dismissed.
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