Law Times

PAGE 16 Ruling could open door to manufactured limitation defences BRIEF: PERSONAL INJURY LAW A BY MICHAEL McKIERNAN Law Times itation defences in cases where plaintiffs pursue multiple claims in different forums, according to a personal injury lawyer. Michael Wolfe' n Ontario Court of Appeal decision could give insurers the abili- ty to manufacture lim- Gordyukova had a Superior Court action and a Financial Services Commission of On- tario arbitration running con- currently in relation to injuries sustained in a motor vehicle ac- cident in 2001. The arbitration application was filed much later s client Julia in 2008, but both actions were launched within the two-year limitation periods. Gordyukova' Direct Insurance Co., moved to consolidate the issues in the Su- perior Court action. But a FSCO arbitrator instead allowed her to add the Superior Court matters to the arbitration. The FSCO director' s insurer, Certas overruled that decision aſter ac- cepting the insurer' s delegate that the Superior Court claims were outside the limitation pe- riod for the arbitration. The Di- visional Court then reversed the delegate' s argument reasonable." Finally last week, a unanimous three-judge panel of s decision, calling it "un- the Ontario Court of Appeal set aside the Divisional Court deci- sion and reinstated the delegate' order to stay the arbitration. "This is not only of concern s to my client, but in my opinion it could put other insureds in On- tario in a difficult situation," says a disappointed Wolfe. "Our concern is that this deci- sion is a blueprint for insurers to develop a limitation defence that wouldn't otherwise exist. . . . It' a two-step process. First, bring a motion to consolidate, and once you succeed, then whatever fo- rum you go into, you can raise a limitation defence that wasn't previously available. s Your Partners in Service® Since 1981 1.800.263.8537 www.henderson.ca mon for claimants to pursue insurers in more than one fo- rum. He says lawyers are oſten attracted to FSCO arbitration in disputes over entitlement to certain treatments despite the existence of underlying court actions because of the speed of arbitration. "It seems sort of nonsensical Wolfe says it's not uncom- " endersonLT_Sep10_12.indd 1 E.V. Litigation & Financial Services Inc.12-09-05 3:21 PM Elaine G.Vegotsky, CMA, CFE, CFI Litigation & Forensic Accounting, Financial Investigations Assisting you in 4 5 Sheppar d Avenu e East, Toronto, Ontario M2N 5W9Willowdale, Ontario M2N 5W9 Suit e 900 evlitigation@rogers.com Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 to us that an insured has blown the limitation period when ev- eryone agrees that she complied with the two-year limitation pe- riod in each forum when looked at separately, procedural motion, so how can a limitation defence be created as a result of a procedural motion? It was created through no fault of the insured but by decisions en- tirely outside of her control. "I view the consolidation like a " he says. Dow Elliott & McCarthy, who represented Certas at the Court Vlit_LT_Jan9_12.indd 1 Personal Injury Firms should not be typing it up Old-School 12-01-03 11:38 PM Join over 1500 litigators who use ACL to: Prepare court forms, as well as Arbitration, Mediation and OCF, plus letters and common motions amazingly fast. With your custom claims added, errors are eliminated and efficiency is increased. Create multiple letters and/or documents with one simple keystroke. Standardize documents and work flow throughout the firm. Todd McCarthy of Flaherty " cident claim with a 10-year-old Superior Court claim and a single-issue arbitration. You re- ally can't change the decision on the initial choice of forum this late in the process. To bring ev- erything over to arbitration so late in the process was effectively changing the forum far too late. Insurance lawyer Daniel of Appeal, says while the choice of forum always rests with the insured, the decision empha- sizes there are time limits for any change. "This is an 11-year-old ac- " Strigberger, a partner in the Waterloo, Ont., office of Miller Thomson LLP, says it' claimants are not supposed to en- gage in forum hopping, defence to prevent it by bringing up a limitation issue because of the choice of forum." But Wolfe says his client was "This is a craſty way by the " he says. to see a case swinging back and forth so many times. "It reinforces the idea that s unusual the issues needed to be heard together but decided it should happen in long as Gordyukova gave notice of her intention to discontinue the court action. She gave that notice, but Certas then raised the limitation issue, which was dismissed by the arbitrator. The arbitrator was then overturned by the FSCO director' the arbitration as delegate had incorrectly inter- preted Ontario' by finding the limitation period had expired for the court claims moving to the arbitration. "Where the limitation period The Divisional Court said the s Insurance Act s delegate. with the court action. The FSCO arbitrator agreed September 10, 2012 • Law timeS forced into a decision on the fo- rum aſter the arbitrator agreed the actions should be consolidated. "To suggest she re-elected her forum or chose to switch from one to the other is false. She was forced into a decision by the in- surance company who brought the motion to consolidate. It wasn't her choice. Her choice was to proceed in different forums." Gordyukova' was launched in 2002, a year af- ter her accident. She was seeking accident benefits and punitive and aggravated damages aſter a dispute over her entitlement to medical benefits. In 2005, her insurer informed s court action her she had exhausted her non- catastrophic limits for rehabili- tation benefits and subsequently rejected her application for a catastrophic impairment deter- mination. This time, Gordyuko- va opted for arbitration at FSCO aſter mediation failed. Certas wasn't involved until has been complied with in the institution of each of the pro- ceedings, there is nothing in the statute which prevents the issues from being presented in one or other of those proceedings," the Divisional Court stated in the Nov. 8, 2011, decision. But in the most recent deci- sion, appeal court Justice Paul Rouleau said if the Divisional Court' cepted, then "nothing would prevent a claimant from decid- ing on the eve of trial to change fora and seek to have the matter heard by an arbitrator. s interpretation was ac- He added: "Similarly, the Di- visional Court's decision sug- " gests that a claimant could later discontinue an arbitration pro- ceeding and issue a fresh state- ment of claim." Rouleau also suggested in his decision that the difficulty could have been avoided had the FSCO arbitrator considered the limitation issue before de- ciding whether to consolidate the claims. " 2009 when an inter-company dispute with the original insurer resulted in it being named the priority insurer. Soon aſter it was added as a party, Certas filed a motion to have the arbitra- tion stayed and the catastrophic impairment issue consolidated considered are whether the claim in the court action is 'broad enough to include the benefits claimed in the arbitra- tion proceeding' and whether there 'is no obvious impedi- ment to (the insured) adding the issues to the court action.' As explained by the delegate, dealing with the limitation is- sues as part of the stay motion is required precisely to avoid placing the insured into an im- possible situation. Among the factors to be " LT www.korbitecinc.com Korbitec_LT_Sep10_12.indd 1 1-800-340-3234 www.lawtimesnews.com 12-09-05 2:10 PM

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