The case is not on point here, where the Ontario legislature created concurrent schemes for adjudicating accident benefit claims at both FSCO and the LAT. Each scheme is separate and comprehensive and, in accordance with the transitional provisions of the Insurance Act, the legislature intended that the two tribunals operate concurrently for a short period while FSCO winds down its operations. During the transition period, each tribunal maintains the legitimacy and integrity of its own adjudicative processes.
Legislative intent
Aviva argues that, if the legislature had intended for FSCO to add issues after April 1, 2016, it would have so expressly legislated. However, that is not my understanding of the rules of statutory interpretation in consumer protection legislation. Rather, any limitations on the rights of insured persons must be made explicit.
It follows that only a clear and unambiguous statement in the statute that parties may not continue the practice of adding issues to FSCO arbitrations after April 1, 2016 can support an interpretation favourable to Aviva. Nowhere in the Insurance Act is there mention of the practice of adding issues to an arbitration. It is settled law that, where there is a doubt in legislation establishing and governing coverage and there are two possible interpretations of any aspect of coverage, the one more favourable to the insured should govern: July et al. v. Neal (1986).[9] The
Adding an issue to this arbitration is the fairest way of hearing it
Avoids duplication
To the extent that Mrs. Abbas seeks to consolidate her claims at FSCO by adding an issue to her arbitration, I am persuaded that she is justified in doing so. Adding the issue of non-earner benefits to the existing arbitration avoids unnecessary duplication of proceedings. Hearings are costly to the parties and, where possible, one hearing should be held, instead of multiple ones. It is cheaper for the parties, more convenient for the witnesses and makes better use of adjudicative resources.
While Aviva acknowledges that a multiplicity of proceedings should generally be avoided, it says that the issue of non-earner benefits is new, discrete and “in no way” connected or affected by the determination of issues currently in dispute. I reject that argument. To have the same parties bring the same evidence of the same injuries from the same accident to two different tribunals is indisputably a duplication of resources for the parties, witnesses, the tribunals and any reviewing bodies. There are issues of credibility, causation and disability common to both. To allow separate proceedings creates a risk of inconsistent findings and increases costs for the parties and the administration of justice.
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Conclusion
For these reasons, I am satisfied that I have the jurisdiction to add an issue to this arbitration and that to do so is the fairest way of proceeding.
I dismiss Aviva’s preliminary issue motion precluding Mrs. Abbas from adding an issue after April 1, 2016.