Aviva Canada Inc. et al. v. Pastore,

• Jurisdiction: Ontario
• Judge: Feldman,Rosenberg,Swinton
• Neutral Citation: 2012 ONCA 887
• Date: 14 December 2012
• Court: Court of Appeal (Ontario)

Aviva Can. Inc. v. Pastore (2012), 300 O.A.C. 355 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.043

Anna Pastore (appellant) v. Aviva Canada Inc. and Financial Services Commission of Ontario (respondents) and Ontario Trial Lawyers Association, Insurance Bureau of Canada and the Attorney General of Ontario (intervenors)

(C54288; 2012 ONCA 887)

Indexed As: Aviva Canada Inc. et al. v. Pastore

Ontario Court of Appeal

Rosenberg and Feldman, JJ.A. and Swinton, J.(ad hoc)

December 14, 2012.

Summary:

A designated assessment centre (DAC) assessment found that Pastore had a catastrophic impairment consisting of a marked impairment in her activities of daily living due to mental or behavioural disorder under s. 2(1.1)(g) of the Statutory Benefits Act Schedule - Accidents on or after November 1, 1996. An arbitrator agreed with the DAC assessors. The insurer (Aviva Canada Inc.) appealed to the director of arbitrations. A director's delegate upheld the decisions of the arbitrator and the DAC. Aviva sought judicial review.

The Ontario Divisional Court, Matlow, J., concurring in part, in a decision reported at (2011), 280 O.A.C. 347, allowed the application and reversed the delegate's decision. Pastore appealed.

The Ontario Court of Appeal, in a decision reported at (2012), 296 O.A.C. 281 allowed the appeal and reinstated the decision of the director's delegate. Before the order of the court was taken out, Aviva asked the court to withdraw, alter or modify its decision based on a decision released by the Supreme Court of Canada while the court's decision was under reserve: Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35. While Aviva had conceded on the appeal that the reasonableness standard applied, it now sought to rely on the Rogers case to support a correctness standard of review. Pastore's counsel did not agree that the Rogers case would change the standard of review in this case.

The Ontario Court of Appeal denied Aviva's request to reopen the decision.

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - [See Practice - Topic 9136 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - A designated assessment centre (DAC) found that Pastore had a catastrophic impairment consisting of a marked impairment in her activities of daily living due to mental or behavioural disorder under s. 2(1.1)(g) of the Statutory Benefits Act Schedule - Accidents on or after November 1, 1996 (SABS) - An arbitrator agreed - The insurer (Aviva) appealed to the director of arbitrations - A director's delegate upheld the decisions of the arbitrator and the DAC - Aviva sought judicial review - The Ontario Divisional Court allowed the application and reversed the delegate's decision - Pastore appealed - The Ontario Court of Appeal allowed the appeal and reinstated the decision of the director's delegate - Before the order of the court was taken out, Aviva asked the court to withdraw, alter or modify its decision based on a decision released by the Supreme Court of Canada while the court's decision was under reserve: Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada - The Rogers case applied the correctness standard of review to a decision of the Copyright Board interpreting and applying its home statute, because the legislative scheme gave concurrent, original jurisdiction to either the Board or to a court - Aviva had conceded on the appeal that the reasonableness standard applied - It now sought to rely on the Rogers case, based on a provision of the legislative scheme in the Insurance Act that gave concurrent jurisdiction to adjudicate, following both assessment of the claimant and mediation, to an arbitrator or to a court - Pastore did not agree that Rogers would change the standard of review in this case - The Ontario Court of Appeal denied Aviva's request to reopen the decision - It was clear that the parties did not agree that an error had been made on the standard of review that the court was required to correct - This was not the type of rare circumstance where it was in the interests of justice to withdraw the reasons of the court and rehear the case on the merits.

Cases Noticed:

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 1].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refd to. [para. 7].

Gore Mutual Insurance Co. v. 1443249 Ontario Ltd. et al., [2004] O.T.C. 319 (Sup. Ct.), refd to. [para. 8].

Counsel:

Jeff Galway, for Aviva Canada Inc., Requestor;

J. Thomas Curry and Joseph Campisi Jr., for Pastore;

Robert Conway, for Financial Services Commission of Ontario;

Lee Samis and Krista M. Groen, for the Insurance Bureau of Canada;

James L. Vigmond and Brian M. Cameron, for Ontario Trial Lawyers Association;

Hart Schwartz and Matthew Horner, for the Attorney General of Ontario;

Gillian A. Patterson, for the Attorney General of Canada.

This request to reopen was heard before Rosenberg and Feldman, JJ.A. and Swinton, J.(ad hoc), of the Ontario Court of Appeal. The Court of Appeal delivered the following endorsement on December 14, 2012.