



COURT OF APPEAL FOR ONTARIO

CITATION:
Hurst v. Aviva
    Insurance Company, 2012 ONCA 837

DATE: 20121129

DOCKET: C55032, C55033, C55044, & C55087

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Karen
    Hurst, Gillian Cornie, Devinder Singh,

and Elizabeth Clark

Plaintiffs (Respondents)

and

Aviva Insurance Company, Security National Insurance
    Company o/a TD Meloche Monnex, Aviva Canada Inc. and State Farm Mutual
    Automobile Insurance Company

Defendants (Appellants)

and

Insurance
    Bureau of Canada and Ontario Trial Lawyers Association

Interveners

Eric K. Grossman, for the appellants State Farm Mutual
    Automobile Ins. Co.

David Silverstone and Jennifer Matic, for the appellants
    Security National Insurance Company

Catherine Korte, Pamela Quesnel and Matthew Dugas, for
    Aviva Insurance Company

Bruce Kelly, for the respondents Karen Hurst, Gillian
    Cornie, Devinder Singh and Elizabeth Clark

John Craig and Vivian Bercovici, for the intervener Insurance Bureau of Canada

M. Steven Rastin and Stanley Pasternak, for the
    intervener Ontario Trial Lawyers Association

Heard: July 19, 2012

On appeal from the judgment of Justice J.W. Sloan of the
    Superior Court of Justice, dated February, 8, 2012.

Juriansz
    J.A.:

A.

introduction

[1]

These appeals were heard together because they raise a common question
    related to the functioning of the provinces no-fault system of automobile
    insurance. The question is when insured persons can commence court actions
    against their own insurers to claim benefits under the
Statutory Accident
    Benefits Schedule
, O. Reg. 34/10 (SABS). This is a pure question of law
    depending on the interpretation of the statutory scheme under the
Insurance
    Act
, R.S.O. 1990, c. I.8 (the Act).

B.

background facts

[2]

The respondents are four individuals who were victims of motor vehicle
    accidents in which they sustained serious injuries. The facts for each
    respondent followed a similar pattern.

[3]

At the time of their respective accidents, the respondents each held a
    valid policy of insurance issued by one of the appellants. Disputes
    subsequently arose between each of the respondents and their respective
    insurers concerning their entitlement to statutory accident benefits. Those
    disputes, as stipulated in s. 279(1) of the Act, must be resolved in
    accordance with sections 280 to 283 [of the Act] and the
Statutory Accident
    Benefits Schedule
.

[4]

Subsection 281(2) of the Act prevents insured persons from resorting to
    court actions against their insurers unless they first sought mediation and
    mediation failed. Accordingly, the respondents applied to the Financial
    Services Commission of Ontario (FSCO) for mediation of their disputes. FSCO is
    the administrative agency responsible for administering Ontarios statutory
    scheme regulating auto insurance.

[5]

The respondents took the position that mediation must be completed
    within 60 days of their applications to FSCO. In support of their position,
    they relied on several provisions in the Act, the
Automobile Insurance
    Regulations
, R.R.O. 1990, Reg. 644 (the regulations), and FSCOs Dispute
    Resolution Practice Code (DRPC).

[6]

The respondents waited at least 60 days after the date of their
    applications for FSCO to appoint a mediator and for mediation to take place.
    However, no mediator was appointed during that time period and mediation had
    not commenced in any of the respondents cases.

[7]

The respondents submitted that mediation had failed because the
    prescribed time for mediation set out under the Act and the regulations had
    expired. Each of the respondents wrote a letter to FSCO requesting a mediators
    report declaring that the time for mediation had elapsed and that mediation had
    failed for the purpose of s. 281(2) of the Act.

[8]

FSCO refused the respondents requests. In a letter to each of the
    respondents, FSCO took the position that the prescribed time limit for
    conducting mediation did not begin to run until an application for mediation had
    been assessed by FSCO staff and found to be complete. Given that this had not
    occurred in any of the respondents cases, FSCO refused to provide a report declaring
    that mediation had failed.

[9]

Each of the respondents then commenced a court action against his or her
    insurer claiming the disputed statutory accident benefits. In response, the insurers
    brought motions to strike or stay the respondents actions, arguing they were barred
    by s. 281(2) of the Act. The insurers motions were heard together by Sloan J.,
    who dismissed the motions. The insurers appeal that decision to this court.

[10]

The
    common legal question raised in these appeals is when, for the purposes of s.
    281(2), mediation has failed so that an insured person may bring an action in
    court.

C.

statutory scheme

[11]

Ontario
    has adopted a comprehensive statutory scheme regulating automobile insurance. An
    integral part of this scheme is the process for resolving disputes between
    insured persons and their insurers set out in ss. 280 to 283 of the Act and in the
    regulations.  Central to this process is the mandatory mediation of such
    disputes. Subsection 281(2) of the
Act
    prevents insured persons from commencing court actions unless they have first
    sought mediation and it has failed
.

[12]

The
    full text of s. 281(2) provides:

281. (2) No person may bring a
    proceeding in any court, refer the issues in dispute to an arbitrator under
    section 282 or agree to submit an issue for arbitration in accordance with the
Arbitration
    Act, 1991
unless mediation was sought, mediation failed
    and, if the issues in dispute were referred for an evaluation under section
    280.1, the report of the person who performed the evaluation has been given to
    the parties.

[13]

Section
    280 deals with how the statutory mediation process should take place. Subsection
    280(2) specifies that the process is started when any party files an
    application for mediation with FSCO. Once a party has filed for mediation, s.
    280(3) requires the Director of Arbitrations under the Act to promptly appoint
    a mediator. Subsection 280(4) states that the mediator is required to attempt
    to effect a settlement within the time prescribed in the regulations.  The
    entire provision states:

280.(4) The mediator shall inquire into the issues in
    dispute and attempt to effect a settlement of as many of the issues as possible
    within the time prescribed in the regulations for the settlement of the type of
    dispute in question.

[14]

Particularly
    relevant for this appeal is s. 280(7) of the Act, as it deals with when
    mediation has failed. It states the following:

280.(7) Mediation has failed when the mediator has
    given notice to the parties that in his or her opinion mediation will fail, or
when the prescribed or agreed time for
    mediation has expired and no settlement has been reached
.

[15]

Pursuant
    to s. 280(6), a mediator, at any time before settlement is effected, may notify
    the parties of his or her opinion that mediation will fail.

[16]

Section
    10 of the regulations requires a mediator to attempt to effect a settlement of
    a dispute within 60 days after the date on which the application for the
    appointment of a mediator is filed.

[17]

The
    DRPC also sets out time limits for the mediation process. Under the heading Time
    Limits for Mediation, Rule 19 provides that mediation must be concluded within
    60 days of the filing of a properly completed application for mediation,
    unless the parties agree otherwise.

[18]

The
    parties may extend the time for the completion of the mediation process by
    agreement, pursuant to s. 280(5).

[19]

Finally,
    in the event that mediation fails, s. 280(8) requires the mediator to give the
    parties a report setting out the insurers last offer, a description of the
    issues that remain in dispute, a list of materials that, though requested, were
    not produced and which were required to discuss settlement, and recommending
    whether or not the issues in dispute should be referred for a neutral
    evaluation under s. 280.1. The neutral evaluation process allows the parties
    jointly, or the unsuccessful mediator, to refer the issues in dispute to a
    person appointed by the Director for an evaluation of the probable outcome of
    a proceeding in court or an arbitration.

[20]

Having
    set out the statutory scheme, I now turn to the issue of when mediation has failed
    for the purposes of s. 281(2) of the Act.

D.

analysis

[21]

On
    a first reading of the Act, the regulations, and the DRPC, it would seem that an
    insured person may commence a proceeding in court 60 days after filing an
    application for mediation with FSCO.

[22]

This
    was the conclusion of the motions judge, who refused to dismiss or stay the
    respondents actions as being barred by s. 281(2). The motions judge noted that
    s. 281(2) allows a person to commence a court proceeding after mediation has
    been sought and has failed. Subsection 280(7) states that mediation has failed
    when the prescribed time for mediation has expired. The motions judge found
    that the only prescribed time in either the regulations or in the DRPC is 60
    days. Section 10 of the regulations requires a mediator to attempt to effect a
    settlement of a dispute within 60 days after the application for the
    appointment of a mediator is filed. Rule 19.1 of the DRPC also provides that
    mediation must be concluded within 60 days after the filing of an application
    for mediation. The motions judge concluded that it made perfect sense that
    these provisions created a 60-day time limit to deal with disputes, after which
    the respondents are free to commence a court action or proceed to arbitration.

[23]

Such
    a reading is strenuously contested by the insurance company appellants, supported
    by the intervener, the Insurance Bureau of Canada (IBC).

[24]

They
    urge the court to undertake a purposive analysis of the legislative framework.
    In so far as the language of the text permits, the court should strive to
    arrive at an interpretation that is consistent with and promotes the
    legislative purpose and should avoid interpretations that defeat or undermine
    the legislative purpose.

[25]

Put
    simply, their position is that an interpretation that permits insured persons
    to commence court actions without waiting for FSCO to actually attempt
    mediation of their disputes would effectively gut the statutory scheme for the
    resolution of such disputes. The overarching purpose of the statutory scheme of
    no-fault automobile insurance is intended to remove from the court system disputes
    arising from motor vehicle accidents. The statute assigns FSCO the
    responsibility of providing a dispute resolution process, particularly a
    mediation service, to provide the parties with an efficient and economical
    process to resolve disputes about entitlement to accident benefits. The Act, as
    s. 281(2) sets out, makes the failure of mediation a precondition to commencing
    a court action. The legislative purpose in making mediation mandatory is to
    reduce costs for the parties and, in doing so, reduce the cost of insurance for
    all Ontario motor vehicle owners.

[26]

The
    appellants support their argument by examining the functioning of FSCO. FSCOs
    services resolve some 75% of cases mediated. FSCO also eliminates from the
    system claims that are incomplete, vexatious, or barred by statutory limitation
    periods. Fresh evidence tendered by the IBC indicates that FSCO received a
    total of 36,492 applications for mediation in 2011. As of April 1, 2012, 21,023
    of 26,240 active applications that had not yet been referred to mediation were
    more than 60 days old. Dismissing the appeal would allow these disputes to
    proceed in court or arbitration, when 75% of them would have been resolved by
    mediation before FSCO. The resulting costs could be immense.  Insurers pay a
    filing fee of $500 for mediation, and $3,000 for arbitration. If all of the
    claims that would have otherwise gone to mediation are forced into arbitration,
    the cost to the insurance industry from the additional filing fees alone could amount
    to $83 million.  When one considers the additional costs of court proceedings
    and legal fees, which are not so easily calculated, it is inevitable that there
    would be upward pressure on insurance premiums.

[27]

The
    appellants and intervener submit that upholding the lower court decision would
    adversely affect the statutory system for resolving automobile accident benefit
    disputes, the civil court system, and the system for establishing automobile
    insurance premiums.

[28]

Relying
    on this characterization of the purpose of the legislative framework, the
    appellants urge that the words of the various relevant provisions be
    interpreted to hold that insured persons cannot commence a court action until mediation
    between the parties has actually been attempted and failed, and a mediators
    report has been issued.

[29]

In
    my view, the appellants identification of the statutes purpose is incomplete.
    No doubt it is an important purpose of the legislative framework to make
    mediation mandatory. That, though, is not the whole story. Reading the
    provisions in their entire context makes clear that the purpose of the
    legislation is to make mandatory a mediation process
that is timely and
    effective
. The timeliness aspect of the mandatory mediation process is
    evident from s. 280(4)s requirement that mediation be conducted within the
    time prescribed by regulation and s. 280(7)s provision that mediation has
    failed when the prescribed time for mediation has expired.

[30]

The
    purpose of the legislative scheme of dispute resolution is to mandate a speedy mediation
    process, conducted and completed on a strict timetable, in order to settle
    disputes quickly and economically. The speedy mediation process enables insured
    persons to receive the benefits to which they are entitled without delay. When
    the legislative purpose is properly characterized to include the timely
    resolution of disputes, there is no reason to resist the grammatical and
    ordinary sense of the legislation. Therefore, I do not accept the premise on
    which the appellants entire argument is based. Nevertheless, I now turn to the
    specific arguments they put forward regarding the interpretation of the
    relevant statutory and regulatory provisions.

[31]

First,
    the appellant insurers suggest that there is no time limit prescribed for the
    purposes of s. 280(7) of the Act. It will be recalled that s. 280(7) states
    that mediation has failed when the prescribed or agreed time for mediation has
    expired. The appellants point out that the prescribed time limit in s. 10 of the
    regulations only refers to s. 280(4) and not to s. 280(7). The full text of s.
    10 is as follows:

10. A mediator is required, under subsection 280 (4)
    of the Act, to attempt to effect a settlement of a dispute within sixty days
    after the date on which the application for the appointment of a mediator is
    filed.

[32]

The
    appellants position is that the 60-day time limit set out in s. 10 only
    applies to s. 280(4) and no time limit has been prescribed for s. 280(7). In
    the absence of any prescribed time limit for s. 280(7), the appellants contend
    that mediation should not be deemed to have failed upon the expiration of 60
    days.

[33]

I
    cannot accept this argument. It is generally presumed that when the legislature
    uses the same words in a statute they are to be given the same meaning. In my
    view, the entire section cannot reasonably be read so that the prescribed
    time in s. 280(4) is different than the prescribed time in s. 280(7). As
    noted by the motions judge, the only prescribed time for mediation in the
    regulations is 60 days. If the appellants interpretation is accepted, it would
    render meaningless the part of s. 280(7) requiring mediation to be completed in
    a prescribed time period.

[34]

Second,
    the appellants focus on the meaning to be attributed to the word filed in s.
    10 of the regulations. The time limit for mediation set out in s. 10 is sixty
    days after the date on which the application for the appointment of a mediator
    is filed. The appellants submit that an application is not filed until FSCO
    has examined it and concluded that it is properly completed and ready to be
    assigned to a mediator.

[35]

The
    Manager of Mediations at FSCO took this position in written refusals of the respondents
    requests for mediator reports declaring that the mediations had failed. The
    Manager explained that the requests for mediator reports were premature because
    FSCO had not yet registered the respondents applications as complete, and
    hence they were not yet considered filed.  Therefore, in the Managers view,
    the 60-day time period had not yet begun to run.  The appellants submit that
    the court should give weight to the interpretation adopted by those charged
    with administering a home statute.

[36]

The
    appellants submit that the Managers position is supported by the DRPC. Rule 19
    of the DRPC provides that, unless the parties agree otherwise, mediation must
    be concluded within 60 days of the filing of an Application for Mediation,
    completed in accordance with the requirements of Rule 12. Rule 12 of the DRPC
    specifies what must be included in a completed Application for Mediation. The
    requirements include names and addresses, descriptions of each issue in
    dispute, listings of available documents and requested documents, and other
    such items. Rule 12.3 provides that, if an application appears to be incomplete,
    the dispute resolution group may hold the application in abeyance for 20 days
    from the delivery of the notice. The appellants also point out that, in
    accordance with Rule 13, the Dispute Resolution Group does not send to the
    insurer a copy of the insured persons application for mediation until that
    application is assessed as complete, and it is only then that a mediator is
    promptly appointed.

[37]

The
    appellants submit that the legislative framework must be interpreted to allow
    FSCO to correct technical deficiencies in the application before the period set
    for mediation begins to run.

[38]

I
    do not accept that the 60-day clock does not begin to run until FSCO has assessed
    an application as complete. Such an interpretation, which would allow FSCO to
    accumulate a backlog of any length, would ignore the legislative purpose of
    providing a speedy mediation process. As noted in s. 10 of the regulations, a
    mediator is required to attempt to effect a settlement of a dispute within 60 days
after the date on which the application for the appointment of a mediator is
    filed
. Rule 6 of the DPRC provides that a document that is required to be
    filed must be delivered to the Dispute Resolution Group by one of several
    methods of delivery permitted under Rule 7. Clearly, the word filed is used
    in the legislative scheme in its ordinary sense.

[39]

All
    these provisions indicate that the expectation of the legislative scheme is
    that FSCOs assessment of applications filed with it will be done with
    sufficient dispatch to meet the prescribed time limit. It is not necessary on
    this appeal to decide whether the 60-day time period for the completion of
    mediation is reset when an incomplete application is re-filed.

[40]

In
    reaching this conclusion, I have placed no weight on FSCOs interpretation of
    the Act as the appellants have submitted l should. Any deference that is due is
    not owed to FSCO, but to an arbitrator appointed under the Act, or to a
    Directors Delegate on an appeal of an arbitrators decision. The issue of when
    an application is filed was directly addressed by Arbitrator Jeffrey Rogers
    in
State Farm Mutual Automobile Insurance v. Leone
(2012), FSCO
    A11-002196. The arbitrator noted that Rule 4.1 of the DRPC defines filed to
    mean filed with the Dispute Resolution Group. This definition does not
    require any action by the Commission for a document to be filed. The
    arbitrator concluded that filed means delivered to the Dispute Resolution
    Group. This finding was affirmed on appeal to a Directors Delegate. I agree
    with the analysis of the arbitrator and the Directors Delegate.

[41]

The
    appellants next submission is that the 60-day time frame to conduct mediation
    is not mandatory but directory. They submit that, in cases where a statutory
    duty is characterized as directory, non-compliance with the duty will not
    render an action or proceeding invalid. To determine whether a condition is
    mandatory or directory, they say, one must consider whether it would be
    seriously inconvenient to regard the performance of the statutory direction
    as imperative. In support of this principle, they rely upon the remarks of the
    Alberta Court of Appeal in
Alberta Teachers Assn. v. Alberta (Information
    and Privacy Commissioner)
, 2010 ABCA 26, 316 D.L.R. (4th) 117, revd on
    other grounds 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 23:

Where the legislation is silent "it is left to the courts
    to determine whether non-compliance [with a statutory duty] can be
    cured.": see [
Ruth Sullivan,
Sullivan on
    the Construction of Statutes
, 5th ed. (Markham:
    LexisNexis Canada, 2008).]
Sir Arthur Channell in
Montreal Street
    Railway Co. v. Normandin
, [1917] A.C. 170 (P.C.), at pp. 174-75 wrote
    that:

When the Provisions of a statute relate to the performance
    of a public duty and the case is such that to hold null and void acts done in
    neglect of this duty would work serious general inconvenience, or injustice to
    persons who have no control over those entrusted with the duty, and at the same
    time would not promote the main object of the Legislature, it has been the
    practice to hold such provisions to be directory only, the neglect of them,
    though punishable, not affecting the validity of the acts done.

[42]

The
    Supreme Court of Canada has expressed doubt as to the usefulness of the
    distinction between mandatory and directory provisions, noting that the
    principle is vague and expedient: see
British Columbia (Attorney General)
    v. Canada (Attorney General)
, [1994] 2 S.C.R. 41, at p. 123. However, even
    accepting the test put forward by the appellant, the serious inconvenience in
    this case falls on both sides of the debate. While the appellants submit that
    it would cause serious inconvenience to require that mediation be completed
    within 60 days, the respondents submit it would also cause serious
    inconvenience for insured persons to wait to receive statutory benefits to
    which they are entitled because FSCO has failed to meet the statutory time
    limits.

[43]

I
    would not give effect to the appellants argument that the 60-day time limit is
    merely directory. Nor do I accept their argument that the failure to adhere to
    the 60-day time limit is merely a technical or procedural breach. The 60-day
    time limit, as I see it, is an integral part of the legislative scheme that
    aims to provide a speedy mediation process.

[44]

The
    appellants next submission is that other provisions of the legislative
    framework are not consistent with a mandatory time limit for mediation. For
    example, they argue that if mediation is deemed failed after 60 days, there can
    be no mediators report as contemplated by s. 280(8). Subsection 280(8) requires
    that, if mediation fails, the mediator must prepare and give to the parties a
    report setting out the insurers last offer, a description of the issues that
    remain in dispute, a list of relevant materials that should have been produced
    by the parties but were not, and a recommendation as to whether the issues in
    dispute should be referred to an evaluation. The appellants note that none of
    this information would be available in cases where actual mediation had not
    occurred.

[45]

In
    his thoughtful reasons, the motions judge suggested there is no reason why FSCO
    could not issue a report stating that mediation had failed because the
    prescribed time period had expired. The report could set out the information
    listed in s. 280(8), to the extent that such information is available at the
    time of the report. I, however, would approach the matter from a different
    perspective.

[46]

The
    legal question before the court in these cases is whether the motions judge should
    have granted the appellants motions to dismiss or stay the actions commenced
    by the appellants as being barred by s. 281(2). I set out again the text of the
    statutory bar to commencing an action in s. 281(2):

281. (2) No person may bring a
    proceeding in any court, refer the issues in dispute to an arbitrator under
    section 282 or agree to submit an issue for arbitration in accordance with the
Arbitration
    Act, 1991
unless mediation was sought, mediation failed and, if the issues
    in dispute were referred for an evaluation under section 280.1, the report of
    the person who performed the evaluation has been given to the parties.

[47]

As
    can be seen, the section does not require that a person await the receipt of a
    mediators report before commencing a proceeding. All that is required is that
    mediation has been sought and mediation has failed. I reiterate that s. 280(7)
    provides that one of the ways in which mediation can fail is that the 60 days
    prescribed for mediation expire.

[48]

Subsection
    280(8), it seems to me, has no bearing on the operation of s. 281(2). Whether
    s. 280(8) applies when mediation fails by the expiration of time, and what FSCO
    must or may do upon the expiration of the 60-day time period are not questions
    before the court on these appeals. I find it sufficient to observe that the
    failure of a statutory actor to perform a statutory duty does not eliminate a
    persons rights granted by the statute. Even if there is a breach of s. 280(8),
    that breach does not affect the operation of s. 281(2).

[49]

Finally,
the appellants claim that the absence of a mediators report
would have the effect of negating the
    limitation periods in ss. 281.1(1) and 281.1(2)(b) of the Act. It is necessary
    to review these limitation periods
before

discussing
this claim.

[50]

As a general rule, s. 281.1(1) provides
    that a court proceeding or arbitration must be commenced within two years after
    the insurers refusal to pay the benefit claimed. However, the legislative
    scheme recognizes that, since the parties may agree to extend the time for
    mediation, it is possible that mediation will not be completed within two
    years. Subsection 281.1(2)(b) deals with this eventuality by extending the
    limitation period where mediation has failed. Subsection 281.1(2)(b) states that,
    despite the two-year limitation period in s. 281.1(1), a court proceeding or
    arbitration may be commenced within 90 days after the mediator reports to the
    parties under s. 280(8).
Subsection 280(8), it will be recalled,
    requires that the mediator provide a report to the parties upon the failure of
    mediation.

[51]

The appellants argue that, if there is no mediators report, the
    limitation period of 90 days after the mediator reports to the parties
would
never be reached and there
would be
no final limitation
    period. A claim, they say, could be brought in perpetuity. This problem of a
    perpetual limitation period, they submit,
would be a consequence of
deeming mediation to have failed after 60 days even though a mediators
    report has not been prepared. They say that to avoid this problem, the
    legislative scheme should be interpreted so that mediation cannot be said to
    have failed until a mediators report is provided to the parties.

[52]

I
    see the problem as more imaginary than real. Without a mediators report, s.
281.1(2)(b) could not apply and
there
    could be no extension of the limitation period set by s. 281.1(1)
.
Without a mediators report,
s.

281.1(1)
    would always apply to bar an action commenced two years after the insurers
    refusal to pay the benefits claimed.

[53]

The
    problem the appellants imagine could only arise if FSCO were to issue a mediators
    report at some distant time in the future without mediation having taken place.
It is not known what changes FSCO may make to
    its practice or rules as a result of this decision.
Any
    future limitations issues are better addressed in the particular circumstances
    of the cases in which they may arise. No limitations issue arises in these
    appeals.
In any event,
I regard as
    unlikely in the extreme the prospect that FSCO would issue reports of failed
    mediation long after the expiration of the prescribed time without an agreement
    by the parties to extend the time limit.

[54]

What
    can be said is that in light of the decision in these appeals, insured persons will
    either agree to extend the time for mediation beyond the time prescribed or
    they will not. It is a fair inference that those who refuse to extend the time
    for mediation do so because they wish to commence court actions or apply for
    arbitration. If they neglect doing so and commence an action two years after the
    refusal of benefits, s. 281.1(1) would apply to bar the action.
On the other hand,
those who agree to extend the time for
    mediation would eventually have their cases mediated by FSCO. If mediation
    subsequently fails, a mediators report would be issued, and the parties would
    quite properly be able to rely on s.
281.1(2)(b).
In
    either eventuality, there would be no prospect of a perpetual limitation period.

[55]

This submission of the appellants, like the others
    discussed above, provides no reason to depart from
the ordinary meaning
    of the legislation.

E.

Conclusion

[56]

The
    legislative scheme for resolving disputes about statutory accident benefits requires
    that insured persons resort to a mandatory mediation process before commencing
    a court proceeding or submitting their disputes to arbitration.
The Act, the regulations and the DRPC make it clear
    that this process is intended to be completed within 60 days from the filing of
    an application for mediation with FSCO, unless the parties agree to an
    extension of time. The scheme postpones
the right of insured
    persons to commence civil actions against their insurer in order to allow the
    mediation process to be completed within the time prescribed, but leaves them
    free to commence actions once that period has expired.

F.

disposition

[57]

I
    would dismiss these appeals, and fix costs in favour of the respondents in the
    amount of $10,000 against the appellants and in the amount of $6,584 against
    the Insurance Bureau of Canada, inclusive of disbursements and applicable taxes.

R.G. Juriansz J.A.

I agree J.M. Simmons
    J.A.

I agree Gloria Epstein
    J.A.

Released: November 29, 2012


