https://www5.fsco.gov.on.ca/AD/5118
Aviva submitted that due to the amendments to the Insurance Act and its associated Regulation effective April 1, 2016, only appeals or applications for variation/revocation can be commenced on or after that transition date. It submitted that, since adding an issue to a proceeding is the same as commencing a proceeding, and new arbitration proceedings are prohibited, the Arbitrator had no jurisdiction to add those issues.
The Arbitrator nonetheless held he had jurisdiction to add issues to a proceeding “where it would be fair/efficient to do so” and that “Adding issues to an existing proceeding is different from commencing a proceeding, which is the prohibition.” He therefore added the new issues to the arbitration proceeding.
However, the limitation section in the pre-transition date Act uses the same terminology of commencing a proceeding as in the Regulation, and case law has held that no new issues can be added to an arbitration after the running of that limitation period. It follows that no new issues can be added to an arbitration proceeding on or after the transition date. The exception is for those issues that necessarily arise from the issues already in dispute, such as in claims for ongoing benefits. The catastrophic impairment claim could therefore be added, as it necessarily arose from the ongoing claims (past 104 weeks) for attendant care and housekeeping benefits.
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I agree that while it may have been likely that the Mediation would fail, it was not necessarily the case that it would fail, or that a Mediator would be of that opinion as of March 29, 2016. Likelihood or expectation alone is insufficient to meet the requirement for failed Mediation, deemed or otherwise.
For all of these reasons, I find that the statutory conditions precedent to an Application for Arbitration in effect at the relevant time were not met by Mr. Mussa when this Application for Arbitration was commenced, and thus there is no jurisdiction to proceed with the Arbitration.