Mader v. South Easthope Mutual Insurance Co. et al., 2014 ONCA 714

• Judge: Weiler, Hourigan and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 16, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 714;(2014), 325 O.A.C. 265 (CA)

Mader v. South Easthope Mutual (2014), 325 O.A.C. 265 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. OC.010

Michelle Mader (plaintiff/appellant) v. South Easthope Mutual Insurance Company , Cunningham Lindsey Canada Limited, Dan Vaspori, Lawrence Diamond, Jack Wettlaufer, Wayne Tebbatt, Frank Rider, Steven Howell, Daryl Stevenson, Debra Gerber, Helen Schildermans, Lloyd Debus, Douglas Wettlaufer, Murray Schlotzhauer, Murray McGonigle, Donald Henry and Gordon Gross (defendant/respondent)

(C57494; 2014 ONCA 714)

Indexed As: Mader v. South Easthope Mutual Insurance Co. et al.

Ontario Court of Appeal

Weiler, Hourigan and Pardu, JJ.A.

October 21, 2014.

Summary:

The plaintiff was insured by the defendant under a no-fault policy for accident benefits. She signed a release which released the defendant from any obligation to pay accident benefits to her, in exchange for a lump sum payment of $3,000. The plaintiff issued a statement of claim, seeking a declaration that the release was a nullity, and damages for breach of contract, conspiracy, mental distress, and for breach of the duty to act in good faith. She had not repaid her settlement funds or filed for mediation at the Financial Services Commission of Ontario before commencing the action. The plaintiff moved for partial summary judgment. The defendant moved for summary judgment dismissing the claim.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 2821, dismissed the plaintiff's motion and granted the defendant's motion. The plaintiff was obligated pursuant to the relevant provisions of the Insurance Act and the Automobile Insurance Regulation to repay the settlement funds and proceed to mediation before she could commence litigation. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal. The plaintiff failed to establish that the motion judge made any error of law in his analysis.

Insurance - Topic 3742

Automobile Insurance - Insurers - Settlement agreements - Effect of - [See both Insurance - Topic 5128 ].

Insurance - Topic 5010.10

Automobile insurance - Compulsory government schemes - Limitation of causes of action - Dispute resolutions - [See both Insurance - Topic 5128 ].

Insurance - Topic 5128

Automobile insurance - Compulsory government schemes - Proceedings against insurer - Mediation - The plaintiff had signed a release which released the defendant from any obligation to pay accident benefits to her, in exchange for a lump sum payment - She issued a statement of claim, purporting to rescind the settlement agreement - Pursuant to s. 281(2) of the Insurance Act (Ont.), no person might commence a court or arbitration proceeding unless having first sought mediation - The plaintiff contended that her dispute would not be accepted for mediation at the Financial Services Commission because its Dispute Resolution Practice Code required a denial of benefits as a precondition to mediation and did not permit mediation where a settlement agreement was in place - The motion judge granted the defendant's motion for summary judgment dismissing the claim - The Ontario Court of Appeal held that there was no valid reason for the plaintiff's failure to comply with the mediation requirement - The dispute "is clearly contemplated by the Code's mediation procedure, which covers 'any dispute about an insured person's entitlement to accident benefits or the amount of those benefits where a claim has been denied or the prescribed period for the insurer to respond to the claim has elapsed.' The Code also permits mediation where a settlement agreement is in place in limited circumstances, including where the 'claimant disputes the validity of the settlement, such as whether the insurer has complied with the requirements of the Settlement Regulation.' ... Clearly, the exception applies in all circumstances where the claimant disputes the validity of the settlement. The reference to a challenge based on non-compliance with the Settlement Regulation is merely illustrative." - See paragraphs 31 to 38.

Insurance - Topic 5128

Automobile insurance - Compulsory government schemes - Proceedings against insurer - Mediation - The plaintiff had signed a release which released the defendant from any obligation to pay accident benefits to her, in exchange for a lump sum payment - She sought a declaration that the release was a nullity, and damages for breach of contract as well as for conspiracy, mental distress and for breach of the duty to act in good faith - No repayment of settlement funds had been made as required pursuant to s. 9.1(7) of the Automobile Insurance Regulation - The plaintiff was prohibited, pursuant to s. 9.1(8), from commencing a mediation proceeding under s. 280 of the Insurance Act unless she had repaid the funds - The motion judge granted the defendant's motion for summary judgment dismissing the claim - The Ontario Court of Appeal held that the plaintiff had not fulfilled either of the statutory preconditions to the commencement of a court proceeding - The claims all flowed from the denial of benefits, "precisely the type of claim contemplated for resolution by the procedure in ss. 280 to 283 of the Insurance Act. ... [Section 282(10)] makes clear that the procedure in ss. 280 to 283 is not restricted solely to claims for benefits, but is also designed to include claims related to the manner in which benefits were administered." - The pleading of a conspiracy did not transform the claim into an independent actionable wrong - The facts underlying the conspiracy claim were the same as those underlying the rest of the claims - The object of the alleged conspiracy was to deny the plaintiff her benefits - See paragraphs 42 to 51.

Insurance - Topic 5155

Automobile insurance - Compulsory government schemes - Settlement agreements - Rescission of - [See both Insurance - Topic 5128 ].

Insurance - Topic 5230

Automobile insurance - Compulsory government schemes - Rights and duties of insurer - To require assessment or examination of insured - [See Practice - Topic 8985 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Practice - Topic 8985 ].

Practice - Topic 8875

Appeals - Leave to appeal - From allowance or dismissal of interlocutory application - [See Practice - Topic 8985 ].

Practice - Topic 8985

Appeals - When appeal available - From interlocutory ruling - The plaintiff brought a motion for partial summary judgment, asserting that she was entitled to payment of benefits until the defendant insurer complied with its obligations under the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, to arrange the requested assessment by a Designated Assessment Centre (DAC assessment) - She appealed the summary dismissal of her motion - The Ontario Court of Appeal dismissed the appeal - "DAC assessments have not been part of the statutory benefits regime since 2006. Therefore, the order sought by the appellant would be an order in perpetuity. The denial of the appellant's motion for partial summary judgment is an interlocutory order, from which an appeal lies to the Divisional Court, with leave ... . Only if leave is obtained from the Divisional Court can the appeal be combined with an appeal that lies to Court of Appeal in the same proceeding under s. 6(2) of the Courts of Justice Act ... . Since no leave was obtained, this court has no jurisdiction to hear the appellant's appeal from the order dismissing her motion for summary judgment." - See paragraphs 53 to 57.

Cases Noticed:

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 30].

Hurst v. Aviva Insurance - see Cornie v Security National Insurance Co.

Cornie v. Security National Insurance Co. (2012), 299 O.A.C. 126; 356 D.L.R.(4th) 323; 2012 ONCA 837, refd to. [para. 33].

Younis v. State Farm Mutual Automobile Insurance Co. et al. (2012), 300 O.A.C. 180; 356 D.L.R.(4th) 318; 2012 ONCA 836, refd to. [para. 33].

Amorini v. Select Coffee Roasters Inc. et al. (2001), 143 O.A.C. 363 (Div. Ct.), refd to. [para. 34].

Lindsay v. Martin, [2004] O.T.C. 468 (Sup. Ct.), refd to. [para. 40].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 45].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302; 60 O.R.(3d) 474 (C.A.), refd to. [para. 45].

Arsenault v. Dumfries Mutual Insurance Co. (2002), 152 O.A.C. 224; 57 O.R.(3d) 625 (C.A.), refd to. [para. 46].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 47].

Cole v. Hamilton (City) (2002), 60 O.R.(3d) 284 (C.A.), refd to. [para. 55].

Statutes Noticed:

Automobile Insurance Regulation - see Insurance Act Regulations (Ont.).

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6(2) [para. 55]; sect. 19(1)(b) [para. 55].

Insurance Act, R.S.O. 1990, c. I-8, sect. 279(1) [paras. 22, 31]; sect. 281(1) [para. 32]; sect. 281(2) [paras. 22, 32]; sect. 282(10) [para. 50].

Insurance Act Regulations (Ont.), Automobile Insurance Regulation, R.R.O. 1990, Reg. 664, sect. 9.1(7) [para. 39]; sect. 9.1(8) [paras. 22, 39].

Insurance Act Regulations (Ont.), Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Reg. 403/96, generally [para. 4].

Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - see Insurance Act Regulations (Ont.).

Counsel:

Sean Oostdyk, for the appellant;

Bruce Keay, for the respondent, South Easthope Mutual Insurance Company.

This appeal was heard on May 16, 2014, before Weiler, Hourigan and Pardu, JJ.A., of the Ontario Court of Appeal. In reasons written by Hourigan, J.A., the Court delivered the following judgment, dated October 21, 2014.