



COURT OF APPEAL FOR ONTARIO

CITATION:
Pastore v. Aviva
    Canada Inc., 2012 ONCA 887

DATE: 20121214

DOCKET: C54288

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

BETWEEN

Anna Pastore

Appellant

and

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

Interveners

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


ENDORSEMENT RE REQUEST TO REOPEN

[1]

Reasons for judgment in this appeal were released by the court on
    September 27, 2012. On November 13, 2012 the court received a letter from new
    counsel for Aviva Canada Inc. which advised that the order of the court had not
    yet been taken out and sought to bring to the courts attention a decision
    released by the Supreme Court of Canada on July 12, 2012, while this courts
    decision was under reserve:
Rogers Communications Inc. v. Society of Composers,
    Authors and Music Publishers of Canada
, 2012 SCC 35.

[2]

Aviva now asks this court to withdraw, alter or modify its decision
    based on
Rogers
. That case applied the correctness standard of review
    to a decision of the Copyright Board interpreting and applying its home statute
    rather than the reasonableness standard, because the legislative scheme gave
    concurrent, original jurisdiction to either the Board or to a court.

[3]

On this appeal, Aviva conceded that the reasonableness standard applied.
    Aviva did not bring the
Rogers
case to the courts attention or seek
    to withdraw its concession on the applicable standard of review while the
    decision was under reserve.

[4]

Aviva now seeks to rely on the
Rogers
case, based on a
    provision of the legislative scheme in the
Insurance Act
R.S.O. 1990,
    c. I.8 ss. 279-288 that gives concurrent jurisdiction to adjudicate, following both
    assessment of the claimant and mediation, to an arbitrator or to a court. An
    appeal lies from the decision of an arbitrator to the Director. There is no
    further appeal provided from the decision of the Director, whose decision is
    subject to a privative clause (
Insurance Act
, s. 20).

[5]

Brief submissions were requested from the parties on their positions as
    to whether this court should re-open the standard of review issue and rehear
    the case.

[6]

In those submissions, counsel for Pastore did not agree that the
Rogers
case would change the standard of review in this case. Counsel gave four
    reasons.

[7]

First, the
Rogers
case affirmed the earlier, pre-
Dunsmuir
decision in
SOCAN v. CAIP
, 2004 SCC 43, where the court had held,
    based on the same concurrent jurisdiction argument, as well as on other factors
    relevant to the Copyright Board, that the standard of review of that Board was
    correctness. Pastore, therefore, submits that based on the 2004
SOCAN
decision, Aviva could have argued for the correctness standard on the hearing
    of the appeal, but it did not. Second, the concurrent jurisdiction statutory
    scheme in this case differs from the scheme under the
Copyright Act
in
    that the Director (or the Directors Delegate) sits on appeal from the
    arbitrator. It is the arbitrator whose jurisdiction is concurrent with that of
    the court. Third, there is a strong privative clause in the
Insurance Act
,
    which is a factor that favours deference, while there is no privative clause in
    the
Copyright Act
. Fourth, the court in
Rogers
stated that the
    presumptively deferential approach in
Dunsmuir
continues to apply.

[8]

Without commenting on the merits of these submissions or others that might
    be made, it is clear that the parties do not agree that an error has been made
    on the issue of standard of review that the court is required to correct, as
    occurred in
Gore Mutual Insurance Co. v. 1443249 Ontario Ltd.
(2004), 10
    M.V.R. (5th) 67 (Ont. S.C.), the authority for reopening cited by Aviva. In
    that case, a critical subsection of the section of the
Insurance Act
under consideration had not been cited to the court, causing its decision
    interpreting the statute to be wrong.

[9]

Although this court is not
functus officio
because the order of
    the court has not yet been taken out by the parties, this is not the type of rare
    circumstance where it is in the interests of justice to withdraw the reasons of
    the court and rehear the case on the merits.

[10]

The
    request of Aviva to reopen the decision in this case is denied.

M. Rosenberg J.A.

K. Feldman J.A.

K. Swinton J. (
ad hoc
)


