Arbitrator erred in law in refusing to apply doctrine of abuse of process

Procedure

Arbitrator erred in law in refusing to apply doctrine of abuse of process

Claimant was passenger in vehicle driven by father that was involved in motor vehicle accident. Father’s vehicle was previously insured by applicant insurer. Applicant took position that as of date of accident, policy had been cancelled for non-payment. Father was subsequently convicted of operating motor vehicle without insurance. Claimant sustained injuries in accident and applied to applicant for accident benefits under policy issued to claimant’s grandparents. Issue of whether applicant insurer or respondent insurer was liable to remit payment of accident benefits was remitted to arbitration. Applicant raised preliminary issue of whether doctrine of abuse of process applied to preclude respondent from arguing that father was insured person as of date of accident. Arbitrator determined that abuse of process doctrine did not apply to arbitration and respondent was permitted to lead evidence and argue that father was insured person as of date of accident. Applicant applied to overturn arbitrator’s decision. Application granted. Applicable standard of review was correctness. Onus on party resisting application of s. 22.1 of Evidence Act (Ont.), which rendered proof of conviction admissible in subsequent proceeding, was to tender admissible evidence to contrary. Applicant only had to prove conviction itself. Arbitrator conflated onus under s. 22.1 of Act and committed error in law. Onus was on respondent to lead evidence to contrary but there was no evidence to contrary at all. Arbitrator erred in law in refusing to apply doctrine of abuse of process. Fairness did not dictate that administration of justice would be better served by permitting respondent to re-litigate facts surrounding conviction during arbitration. Arbitrator’s decision was overturned and respondent was precluded from leading any evidence and/or re-litigating father’s conviction for operating motor vehicle without insurance on date of accident.
Intact Insurance Co. v. Federated Insurance Co. of Canada (Feb. 2, 2016, Ont. S.C.J., Diamond J., CV-15-540959) 263 A.C.W.S. (3d) 16.