Scarlett v. Belair Insurance, 2015 ONSC 3635

Released June 5, 2015 | CanLII

In this most recent installment in the Scarlett saga, the Divisional Court reviewed the decision of Director’s Delegate Evans from November 28, 2013.  That decision had overturned the original Arbitration decision of March 26, 2013.

The Director’s Delegate had remitted the matter to be heard in full by a different arbitrator. Mr. Scarlett sought to reinstate the Order of Arbitrator Wilson in this judicial review.

Regional Senior Justice Gordon for the Divisional Court reviewed the facts briefly, leading to the original arbitral decision that Mr. Scarlett’s injuries did not fall under the MIG. In doing so, Arbitrator Wilson interpreted s. 18 of the SABS as an insurance exclusion, which placed the onus of proof on the insurer to establish that Mr. Scarlett’s injuries were “minor”, rather than on Mr. Scarlett.

Mr. Scarlett alleged that Director’s Delegate Evans erred in overturning the arbitrator’s decision that the $3500 limit in the MIG was an exclusion of benefits.

Justice Gordon identified that the applicable standard, as in Pastore, was reasonableness.  Regarding the exclusion question, he found that not only was the Director’s Delegate’s decision in this regard reasonable, it was correct.

Regarding s. 14 of the SABS, his Honour explained that it defines the liability of the insurer.  It requires the insurer to pay medical and rehabilitation benefits as set out in ss. 15 and 17, and, if the impairment is not a minor injury, attendant care benefits under s. 19.  There is no attendant care coverage created that is thereafter excluded by the MIG.  There simply is no coverage to begin with, if the impairment is a minor injury.

Similarly, Justice Gordon explained that section 18 (which establishes the limits of medical and rehabilitation coverage) does not create an exclusion to liability, it creates limits on that liability.  Therefore, no exception to the general burden of proof on the claimant is created and he must demonstrate that his injuries fall outside the MIG.

Ultimately, Justice Gordon upheld the Director’s Delegate’s decision on all other grounds except for the error at law identified by Mr. Scarlett that the MIG was binding on theSABS. His Honour observed that the real question was whether the MIG had been incorporated into the SABS by reference.  At paragraph 31, he observed:

In my view, to be incorporated into a statute or regulation, material must be:

  1. Referred to expressly in the statute or regulation; and
  2. Required for the proper interpretation of that part of the statue or regulation which expressly refers to it.

Since there is no provision in the SABS that incorporated the entire Guideline, it is necessary to examine each reference to the MIG bearing the above criteria in mind.

Mr. Scarlett also argued that the Director’s Delegate had altered the civil standard of proof by holding that “compelling” evidence goes beyond a finding that the evidence is credible.  Justice Gordon did not find this argument compelling.  Instead, he noted that the decision properly recognized that “compelling” referred to the sufficiency of the evidence and that it must be determined on the facts of each case.

The Court was asked to consider whether it had been appropriate to order an entirely new arbitration proceeding.  However, at the outset of the hearing of the Application, the parties agreed that, if the matter were to be remitted, it would be as a preliminary issue on the applicability of ss. 14(2) and 18, and not a full hearing as ordered by Director’s Delegate Evans.

 

Read the full decision on  CanLII.

Written by

Keith was raised in Etobicoke, and is excited to return to the GTA in order to practice plaintiff personal injury law. After his call to the Bar in 2009, Keith worked briefly for TD Insurance as in-house legal counsel, prior to moving to London for family reasons. He has spent the last two years working exclusively in plaintiff personal injury and medical malpractice law with a leading firm.

Through his volunteer work, he has written for The Monarch, the Brain Injury Association of London and Region’s quarterly magazine and sat on their Community Outreach committee. He was also a member of the Spinal Cord Injury of Ontario’s Fundraising Committee 2013-2014.

Keith is devoted to his wife and two boys. He loves to cook, and enjoys a good book when he isn’t working.