Recent decision about the right to commence actions and arbitrations post-April 1, 2016
Released February 2, 2017 | Full Decision [CanLII]
This is a case about an insured’s right to commence court and Financial Service Commission of Ontario (FSCO) arbitration proceedings post-April 1, 2016. The Plaintiff was injured in a motor vehicle accident. On October 23, 2015, she applied to FSCO to mediate multiple denied accident benefits claims. That mediation eventually occurred and failed on March 23, 2016. On March 30, 2016, the Plaintiff commenced an arbitration to dispute the denied accident benefits. In September 2016, the Plaintiff fired her lawyer and withdrew her application for arbitration. She then tried to amend an existing Statement of Claim to add the issues that were on the withdrawn application for arbitration.
Despite the Plaintiff’s mediation failing before April 1, 2016, the Court held the Plaintiff could not add the failed issues after April 1, 2016. To do so would effectively circumvent the legislature’s intention of requiring all newly commenced disputes to proceed through the License Appeal Tribunal. The Plaintiff was not allowed amend her Statement of Claim. The Court wrote:
Read the full decision on CanLII17 The second application received a failed mediation report dated March 23, 2016. That report itemizes 22 issues which were considered by the mediator and remained unresolved.
18 After receiving the failed report, Lucas-Logan’s counsel elected to refer the matter to arbitration pursuant to s. 281(1) (b) of the Insurance Act, still in force at that time. Counsel’s representation was terminated by Lucas-Logan who then, for her own reasons, withdrew the arbitration request in September 2016.
19 To allow her to amend her original statement of claim to include the failed issues from the March 2016 mediation would effectively circumvent the effect of the amendment and the law as it existed after April 1, 2016.
20 Upon the withdrawal of the request to arbitrate, Lucas- Logan’s only option if she wished to continue her dispute was to apply to the Licence Appeal Tribunal.
