Ontario Trial Lawyers Association Blog Case Summary - May 5 2017, written by Michael Ettedgui
This decision concerns a request to add issues to an arbitration proceeding resulting from an Application for Arbitration, filed February 18, 2016.
The issues sought to be added resulted from a Mediation Report, dated March 14, 2016. The Applicant’s request to add the issues was made by way of correspondence, not the Application for Arbitration (Form C). Arbitrator Winer refers to this as “established practice” in the decision.
After April 1, 2016, the Insurance Act was amended to require all Statutory Accident Benefits Schedule (SABS) arbitrations to proceed through the License Appeal Tribunal instead of the Financial Services of Ontario.
Arbitrator Winer granted the Applicant’s request because the mediation and request to add issues arose prior to the passing of the amendments to the Insurance Act. In this case, the Applicant’s right to add issues crystalized March 15, 2016, subject to exercise of arbitral discretion.
The decision reads:
There is little benefit and much waste of money and time to require a Fresh Application. The Application for Mediation and letters and Mediator’s Report provided sufficient information about the added claims…
…[T]here is danger here that if the issues are not added some of the Applicant’s claims would be defeated because of a limitation period. She was entitled to rely on the established practice [of adding issues by way of correspondence rather than Form C]. She didn’t receive any notice from FSCO that her letter was unacceptable. The insurer did not object to her letter of March 15, 2016 proposing the addition of the issues.