- Jones v. Tsige, 2012 ONCA 32 (Winkler C.J.O., Sharpe J.A. & Cunningham A.C.J. (ad hoc)), January 18, 2012
- Fischer v. IG Investment Management Ltd., 2012 ONCA 47 (Winkler C.J.O., Epstein J.A. and Pardu J. (ad hoc)), January 27, 2012
- Mady Development Corp. v. Rossetto, 2012, ONCA 31 (Doherty, Armstrong and Hoy JJ.A.), January 17, 2012
- Rouge Valley Health System v. TD Canada Trust, 2012 ONCA 17 (Laskin, Goudge and Gillese JJ.A.), January 12, 2012
- Ontario (Finance) v. Pilot Insurance Company, 2012 ONCA 33 (MacPherson, LaForme and Epstein JJ.A.), January 19, 2012
1. Jones v. Tsige, 2012 ONCA 32 (Winkler C.J.O., Sharpe J.A. & Cunningham A.C.J. (ad hoc)), January 18, 2012
In this case, the Court of Appeal squarely confronted the question whether Ontario law recognizes a right to bring a civil action for damages for the invasion of personal privacy.
The parties worked at different branches of the Bank of Montreal, but did not know or work with each other. T became involved in a relationship with J's former partner; she also became involved in a financial dispute with him. As a result, T accessed J's personal Bank of Montreal accounts on at least 174 occasions, hoping to confirm whether he was paying support to J. The information displayed included transaction details, as well as personal information such as date of birth, marital status and address. T did not make any of this information public, but J nevertheless became suspicious and complained to the bank. The bank took action against T. J issued a statement of claim and, proceeding under the Rule 76 Simplified Procedure, moved for summary judgment. T brought a cross-motion for summary judgment to dismiss the action.
The motion judge granted summary judgment in favour of T on two grounds. First, the motion judge considered that Euteneier v. Lee (2005), 77 O.R. (3d) 621 (C.A.) disposed of the question whether the tort of invasion of privacy exists at common law in Ontario, by ruling out an actionable, free-standing right to dignity or privacy at common law. Second, the motion judge held that, given the existence of privacy legislation protecting a limited range of privacy interests, any expansion of those rights ought to be dealt with by legislation rather than by judicial development of the common law.
The Court of Appeal reversed the summary judgment dismissing the action and substituted an order granting summary judgment in favour of J for damages in the amount of $10,000.
Sharpe J.A. reviewed case law from Ontario, cases from other provinces, Charter jurisprudence, federal and provincial legislation and the extent to which a tort of privacy has been recognized in the United States and other commonwealth jurisdictions. He adopted as his analytical structure the four-tort catalogue delineated by William L. Prosser in his seminal article, "Privacy" (1960), 48 Cal. L.R. 383:
- Intrusion upon the plaintiff's seclusion or solitude or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
Sharpe J.A. focused primarily on the category of intrusion upon seclusion for two reasons: first, because confusion may result from a failure to maintain appropriate analytic distinctions between the categories; and second, because common law courts should restrict themselves to the particular issues posed by the facts of the case before them and not attempt to decide more than is strictly necessary to decide that case. Development of the common law ought to be incremental.
Reviewing the case law, Sharpe J.A. noted that there has been no definitive statement from a Canadian appellate court on the issue of whether there is a common law right of action corresponding to the intrusion on seclusion category. He disagreed with the motion judge that the Euteneier case foreclosed the development of such a cause of action. In that case, Sharpe J.A. pointed out, the plaintiff's dignity or privacy interests were treated as particulars of other causes of action or as the consequences she alleged flowed from the actions of the defendants. This should not be surprising: it has long been recognized that aspects of Prosser's four-tort catalogue have been protected by other causes of action, legislative provisions and constitutional guarantees.
Sharpe J.A. noted in particular that Charter jurisprudence has recognized three distinct privacy interests, one of which is informational privacy. Informational privacy was described by Binnie J. in R. v. Tessling,  3 S.C.R. 432 at para. 23, as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Sharpe J.A. also noted that, while the Charter does not have direct application in disputes between private litigants, the common law should be developed in a manner consistent with Charter values; thus the recognition of a distinct informational privacy interest by the Supreme Court of Canada supported the recognition of a civil action for damages for intrusion upon the seclusion of the plaintiff.
Sharpe J.A. had to address T's argument that it was not open to the court to develop the common law to incorporate a tort of invasion of privacy because privacy is already the subject of federal and provincial legislation and it should be up to the democratically elected legislators in Queen's Park to decide whether to follow other Canadian provinces in creating a statutory cause of action. Sharpe J.A. was unimpressed with this submission and noted, in particular, that the existing legislation, which would have applied in the present case, has nothing to do with private rights of action between individuals. He also observed that no provincial legislation from other provinces provides a precise definition of what constitutes an invasion of privacy. The more common legislative approach is to give the courts the power to define the contours of the right. In Sharpe J.A.'s view, the responsibility of common law courts is the same, regardless whether such an enabling provision has been enacted.
Against this backdrop, Sharpe J.A. proceeded to confirm the existence of a cause of action for intrusion upon seclusion and to define the scope of the tort. He reiterated that privacy has long been recognized as an important and animating value of various traditional causes of action to protect personal and territorial privacy. However, the pace of recent technological change poses a novel threat:
As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.
Sharpe J.A. also noted that the facts of the present case cried out for a remedy. The actions of T were deliberate, prolonged and shocking. Any person in the position of J would have been profoundly disturbed by the significant intrusion into her highly personal information. Although T's employer disciplined her, this did not respond directly to the wrong that had been done to J.
Sharpe J.A. adopted as the elements of the cause of action for intrusion upon seclusion the formulation set out in the Restatement (Second) of Torts (2010):
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
The key features of this cause of action are: first, that the defendant's conduct must be intentional or reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
Sharpe J.A. was confident that recognizing this cause of action would not open any floodgates. Only deliberate and significant invasions of personal privacy will be actionable, thus excluding claims from individuals who are sensitive or unusually concerned about their privacy. Moreover, Sharpe J.A. acknowledged that no right to privacy could be absolute. Accordingly, many claims for privacy protection at common law will have to be reconciled with and perhaps even yield to competing claims based on the protection of freedom of expression and freedom of the press.
As to damages, Sharpe J.A. took the view that the damages in privacy cases are likely to be symbolic. He reviewed Ontario and other provincial cases to identify the general principles. He fixed the range of damages for intrusion upon seclusion in cases where no pecuniary loss has been suffered at up to $20,000. He identified the following factors as a useful guide to determining where a particular case falls:
- The nature, incidence and occasion of the defendant's wrongful act;
- The effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
- Any relationship, whether domestic or otherwise, between the parties;
- Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
- The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
Sharpe J.A. neither excluded nor encouraged awards of aggravated and punitive damages. He noted that absent truly exceptional circumstances, plaintiffs should be held to the $20,000 limit.
In the present case, the fact that T's actions were deliberate and repeated, and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity, militated in favour of a higher award. J was understandably very upset, but on the other hand suffered no public embarrassment or harm to her health, welfare, social, business or financial position. Moreover, T had apologized for her conduct and made genuine attempts to make amends. Sharpe J.A. placed this case at the mid-point of the range and awarded damages in the amount of $10,000.
2. Fischer v. IG Investment Management Ltd., 2012 ONCA 47 (Winkler C.J.O., Epstein J.A. and Pardu J. (ad hoc)), January 27, 2012
This case involved the preferable procedure criterion in the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"). The statement of claim issued by the representative plaintiffs alleged that five defendant mutual fund managers, two of whom were appellants, permitted securities market conduct referred to as "market timing" in mutual funds under their management. The purpose of market timing is to take advantage of the fact that the value of mutual funds is calculated only once a day, whereas the prices of securities traded on foreign exchanges may be out of date at the time that the daily fund valuation is completed. As a result, the daily value of a fund may be artificially low for a short period of time. Market timers purchase mutual funds they believe are undervalued for a short-term turnaround. The vast majority of investors in mutual funds invest on a long-term basis, and are disadvantaged by market timing.
Although this activity is not illegal, the Ontario Securities Commission ("OSC") launched an investigation, motivated by concerns that some mutual fund managers were not taking appropriate steps to avoid or minimize market timing. Subsequent to the conclusion of its investigation, the OSC initiated enforcement proceedings, which led to a settlement in the amount of $205.6 million. An OSC panel held two separate hearings to consider whether these settlement agreements should be approved under s. 127 of the Securities Act, R.S.O. 1990, c. S.5. Although general public notices that the hearings were being held were issued, no direct notice was given to investors and the hearings were conducted in camera. Ultimately, the settlement agreements were approved. The settlements specified that the agreed facts therein were without prejudice to the parties in any other proceedings.
For the purpose of the certification motion, the plaintiffs tendered evidence that the settlements represented only a fraction of the actual loss of investors. However, the motion judge refused to certify the class action, on the basis that a class proceeding was not the preferable procedure for resolving the claims. The motion judge found that the OSC proceedings accomplished the CPA goals of behaviour modification (by penalizing the defendants for their failure to respond to market timing), judicial economy (by securing compensation for all investors in an efficient, principled, and consistent way) and access to justice (by including the same form of remedy, compensation, in the settlement as that sought by the class action and by taking an adversarial stance vis-à-vis the fund managers). The motion judge also found that all of the other criteria for certification laid out in s. 5(1) of the CPA were met.
The Divisional Court allowed the plaintiffs' appeal. Essentially, the Divisional Court took the view that plaintiffs are entitled to maintain a class action unless they have achieved full, or at the very least substantially full, recovery. Here, there was no other viable alternative for recovering the shortfall left by the OSC agreement.
Dismissing the appeal, Winkler C.J.O. held that both the motion judge and the Divisional Court had erred in principle. He noted first that although substantial deference must be accorded to motion judges in certification proceedings, deference cannot shield errors in principle.
Pursuant to the judgment of the Supreme Court of Canada in Hollick v. Toronto (City),  3 S.C.R. 158, there are two core elements to the preferable procedure inquiry. The first element is whether the class action would be a fair, efficient and manageable method for advancing the claim. The second element is whether a class action would be preferable to other reasonably available means of resolving the class members' claims. Winkler C.J.O. focused on the second element of the preferability inquiry. He noted that at least the following characteristics of the alternative proceeding should be considered by the motion judge: the impartiality and independence of the forum; the scope and nature of the alternative forum's jurisdiction and remedial powers; the procedural safeguards that apply in the alternative proceeding, including the right to participate either in person or through counsel and the transparency of the decision making process; and the accessibility of the alternative proceeding, including such factors as the costs associated with accessing the process and the convenience of doing so. These characteristics are to be considered in relation to the type of liability and damages issues raised and the manner in which they are addressed in the alternative proceeding. The court must then compare these characteristics to those of a class proceeding through the lens of goals of the CPA, that is, judicial economy, access to justice and behaviour modification.
There were two essential differences between the OSC proceedings and the proposed class action: the scope and nature of the OSC's jurisdiction and remedial powers; and the lack of participatory rights for investors in the OSC proceedings. As to the scope and nature of the OSC's jurisdiction, it is essentially regulatory, exercised in a different context and for a different purpose than the Superior Court's jurisdiction to adjudicate class actions. Section 127 is not intended to serve as a compensatory or remedial provision with respect to the harm done to individual investors, but rather empowers the OSC to regulate capital markets in a way that protects investors and the efficiency of capital markets. Winkler C.J.O. noted that the OSC did not bring an application under s. 128, which allows it to apply for a variety of judicial orders. Notwithstanding the fact that the OSC had approved settlement agreements including a compensatory element, the role of the OSC proceedings was not to assess the liability issues raised by the representative plaintiffs. Ultimately, the OSC proceedings and class proceedings are intended as parallel, not mutually exclusive, proceedings.
As to the absence of participatory rights, there was no attempt to notify affected investors, neither the investors nor their counsel attended the OSC hearings or made submissions and the main portions of the hearings were in camera. The quantum of compensation was calculated without any input from investors and without any detailed information about the calculations being released. In contrast, Winkler C.J.O. noted, a representative plaintiff would conduct litigation on behalf of class members under court supervision and within the presumptive principle of an open court. As Winkler C.J.O. put it, the notion of representation that is inherent in the procedural mechanism of a class proceeding is a far cry from the complete absence of participation by investors in the OSC proceedings.
As a result of their failure to conduct appropriate preferability inquiries, both the motion judge and the Divisional Court erred in principle. The appeal was dismissed and the Divisional Court's order that certification of the proposed class action be granted was affirmed.
3. Mady Development Corp. v. Rossetto, 2012, ONCA 31 (Doherty, Armstrong and Hoy JJ.A.), January 17, 2012
This case addressed the issue whether a fiduciary employee is disentitled to any bonus in respect of a period of time in which the employee acted in breach of fiduciary duty. The perhaps surprising answer is that, in some circumstances, a fiduciary employee is entitled to retain bonuses even though breaches of fiduciary duty have been committed.
Mr. Rossetto was employed as an executive with Mady. Over a 3-month period in the fall of 2007 he diverted various materials and misappropriated corporate funds to renovate his house. This behaviour was subsequently discovered and Mr. Rossetto's employment was terminated in December, 2008. Mr. Rossetto had been a member of the small executive group of the company and was a trusted individual within the corporate structure. Under his contract, he was entitled to an annual bonus equal to 30% of the company's profits less overhead. Subsequent to Mr. Rossetto's termination, the company sued him for damages for conversion, breach of contract, unjust enrichment and breach of fiduciary duty. He counterclaimed in respect of his bonuses for 2007 and 2008, which the company had refused to pay. The dispute was ultimately submitted to arbitration.
The arbitrator awarded damages to the company in excess of half a million dollars, but also concluded that a dishonest dismissed employee is nonetheless entitled to be paid for work completed. He awarded Mr. Rossetto the bonuses for 2007 and 2008.
The company successfully appealed the arbitrator's decision. The appeal judge held that the arbitrator had committed an error of law by virtue of a failure to properly apply the principles of fiduciary relief. In her view, it was clear from the decided cases that bonuses are included in the various forms of compensation a wrongdoing fiduciary is not entitled to be paid during the period of the wrongdoing.
The Court of Appeal allowed the appeal and restored the arbitrator's decision. Hoy J.A. noted that fiduciary relief has two goals: restitution, which aims to return the beneficiary to the position the beneficiary would have been in but for the breach by the fiduciary, and deterrence, which aims to prevent fiduciaries from benefitting from their wrongdoing. The role each purpose plays, Hoy J.A. noted, is a function of the particular facts of the individual case. On reviewing the jurisprudence, Hoy J.A. held that rather than establishing an absolute rule, the cases merely confirm the well-accepted principle that equitable relief is both discretionary and fact specific. Accordingly, the question of whether errant fiduciaries are entitled to compensation in the form of bonuses is highly fact sensitive, to be answered by reference to the general principles governing fiduciary relief.
Having laid out these general principles, Hoy J.A. concluded that an errant fiduciary is not strictly barred from receiving compensation in the form of bonuses as a consequence of wrongdoing. She took the view that given the goals of restitution and deterrence, the arbitrator's conclusion was reasonable and should be reinstated. In Mr. Rossetto's case, the bonuses were significant, non-discretionary and an integral part of his compensation; in other words, Mr. Rossetto was as entitled to the bonus component of his compensation as to his regular salary. Moreover, the goals of fiduciary relief were accomplished, because the company was compensated for its tangible loss and this award to the company also had the effect of depriving Mr. Rossetto of the benefit he gained from his wrongful conduct. Ultimately, it was appropriate on the facts of the case for the arbitrator to treat Mr. Rossetto as an employee as far as the bonuses were concerned, even though there was a fiduciary relationship.
4. Rouge Valley Health System v. TD Canada Trust, 2012 ONCA 17 (Laskin, Goudge and Gillese JJ.A.), January 12, 2012
The issue on this appeal was the application of the test for determining whether a bank has a valid defence under s. 20(5) of the Bills of Exchange Act, R.S.C. 1985, c. B-4 ("BEA").
A fraud was committed on the Rouge Valley Hospital by one of its program managers. This individual oversaw a budget of more than $10,000,000. By virtue of an automated system that the hospital had put in place, this individual did not need the approval of anyone to issue cheques of less than $10,000. He used this authority to defraud the hospital in two separate schemes, in both of which his accomplice was the same. The first scheme involved a community agency – of which the accomplice was the director – sending the hospital fraudulent invoices. This agency did provide counselling and treatment programs for troubled youth, but it never provided any services to Rouge Valley. The fraud was accomplished by establishing a vendor code at Rouge Valley, which permitted the automatic authorization of payments of less than $10,000. The accomplice would subsequently funnel back some of the money to his partner in crime.
However, the accomplice was fired from this agency, so the pair concocted a second scheme. The accomplice wrote a letter to Rouge Valley to advise that, in the future, a new company would be providing the services that the agency had previously provided. The letter, and subsequent letters requesting payment, were embossed with the logo of the agency, but contained a false name, address and telephone number. In its structure, the second scheme closely resembled the first. The aggregate fraud was just under $700,000.
All of the cheques in question were deposited into an account at TD Canada Trust. The bank was entirely unaware of the scheme. However, Rouge Valley sued the bank in conversion. Because conversion is a tort of strict liability, the bank could not rely on its innocence and ignorance as a defence. However, the bank relied on s. 20(5), which provides that "where the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer". The effect of this provision is that a cheque payable to a specific payee that is either a fictitious or non-existing person may be treated as payable to the bearer. In these circumstances, the person in physical possession of the cheque is deemed to be the rightful payee. As a result, the bank will not be liable in conversion if it accepts the cheque. The purpose of s. 20(5) is to allocate the risk of loss between banks and their customers. The thinking is that the individual who writes the cheque is usually in a better position to uncover a fraud or to obtain insurance.
The parties agreed to resolve their dispute on summary judgment. The motion judge held that the payee of the cheques was both a non-existing and a fictitious person, such that TD Canada Trust was not liable in conversion. Rouge Valley appealed.
Four propositions sum up the law on s. 20(5):
- If the payee is not the name of any real person known of the drawer, but is merely that of a creature of the imagination, the payee is non-existing and is probably also fictitious.
- If the drawer for some reason of his own inserts as a payee the name of a real person who was known to him but whom he knows to be dead, the payee is non-existing but is not fictitious.
- If the payee is the name of a real person known to the drawer, but the drawer names him as payee by way of pretence, not intending that he should receive payment, the payee is fictitious, but is not non-existing.
- If the payee is the name of a real person, intended by the drawer to receive payment, the payee is neither fictitious nor non-existing, notwithstanding that the drawer has been induced to draw the bill by the fraud of some other person who has falsely represented to the drawer that there is a transaction in respect of which the payee is entitled to the sum mentioned in the bill.
TD Canada Trust contended that this case fell under the first proposition; Rouge Valley contended that the case fell under the fourth proposition. The basis of Rouge Valley's appeal was that, although whether a payee is non-existing or fictitious is a question of fact, where there is a plausible argument that the drawer thought the payee was a real person, s. 20(5) should not apply so as to protect the bank. This proposition was drawn from a number of Supreme Court of Canada decisions, the effect of which was described by Bradley Crawford in The Law of Banking and Payment in Canada, 2008 at pp. 22-34:
The law appears to be that if the name of the payee is a pure invention of the drawer of a cheque..., the payee may be "non-existing" within the meaning of BEA, s. 20(5), but only if it is also true that the name is of a person having no real connection with the drawer's business or semble, is not a name that plausibly might be identified by the drawer as being a real creditor of his business (emphasis original).
Rouge Valley contended that the payee in the second fraudulent scheme was plausibly not fictitious or not non-existing. The logo of the company in the second fraudulent scheme was the same as that of the agency in the first fraudulent scheme. In addition, that company had, for the nefarious purpose of the scheme, stepped into the shoes of the agency, which had been a creditor of Rouge Valley.
Laskin J.A. rejected this argument for three reasons. First, the plausibility argument is available only where the payee is factually non-existent but has a name similar to the name of an actual person with whom the drawer has done business. Here, the names used in the second fraud bore no similarity to the name used in the first fraud. Second, the arguments rested on a false premise. The agency in the first fraudulent scheme was not a real creditor of Rouge Valley. It existed, but had never provided services to the hospital. Given that it was never a real creditor in the first place, no similarities could support the plausibility argument. Third, no one responsible for running Rouge Valley considered any of the cheques authorized. It was impossible for them to say that the cheques were being issued to a known entity with whom the hospital had legitimate business dealings in the past. They could not have honestly believed they were paying a legitimate creditor. The automated system for cheques under $10,000 made this argument untenable.
As a result, the Court of Appeal upheld the dismissal of the claim against TD Canada Trust.
5. Ontario (Finance) v. Pilot Insurance Company, 2012 ONCA 33 (MacPherson, LaForme and Epstein JJ.A.), January 19, 2012
This case involved the duty of the Motor Vehicle Accident Claims Fund (the "Fund") to investigate whether another insurer may be liable to pay statutory accident benefits in the case of a motor vehicle accident. In Ontario, where the vehicle causing a motor accident is not insured or where the insurer is unknown and no other vehicle was involved, injured persons have recourse against the Fund; but the Fund may investigate whether another insurer is liable.
In this case, a cyclist was injured by an unidentified motorist on November 30, 2006. Several weeks later, the cyclist submitted an application for benefits to the Fund, but the application was not complete because he did not attach a police report. The application was received by the Fund in March, 2007. In May, 2007, the Fund obtained a statement from the cyclist to the effect that the driver of the vehicle had made a 911 call to the police shortly after the accident. In September, 2007, an investigator for the Fund spoke to the investigating police officer but was told that the police officer's notes were missing. This left two avenues to obtain information about the 911 call: through a freedom of information request or through obtaining a court order. Two unsuccessful freedom of information requests were made, the last of the denials coming in January, 2008. It was not until August, 2008 that the Fund filed a motion to obtain the details of the 911 call. On receipt of the 911 records, the Fund was able to identify that Pilot was the insurer of the driver who caused the accident. Finally, in October, 2008, a full 18 months after the Fund had received the application, Pilot was put on notice that the Fund was disputing its obligation to pay benefits.
Section 3(1) of Disputes Between Insurers, O. Reg. 283/95, gives an insurer (including the Fund) 90 days from receipt of a "completed application" to dispute its obligation to pay statutory accident benefits. An exception is provided for by s. 3(2). The key question here was the meaning of the phrase "completed application" for the purpose of triggering the 90-day notice period in s. 3(1).
The matter initially proceeded to arbitration, where the arbitrator held that the Fund had not met the notice requirements, such that Pilot would not be responsible for paying the benefits in respect of the injured cyclist. Effectively, the arbitrator held that the Fund had not been sufficiently diligent in investigating the missing information and so failed to meet the 90-day deadline. However, the application judge allowed an appeal by the Fund, concluding that the Fund did not have a functionally adequate application until September, 2008, when it had received the 911 call records. Accordingly, the Fund met the 90-day deadline when it put Pilot on notice in October, 2008, a month after it came into possession of all necessary information.
The Court of Appeal allowed the appeal and restored the order of the arbitrator.
Pilot argued before the Court of Appeal that the Fund had a functionally adequate application in March, 2007 when the Fund had received the cyclist's application. It had sufficient information at that point to conduct investigations within 90 days with the assistance of an investigator or counsel: it could have made a freedom of information request or applied for an order to release the 911 call records. By contrast, the Fund argued that the notice period could not have expired as the Fund was exercising due diligence to determine if another insurer was liable.
LaForme J.A. identified the components of a "completed application". They are that the application is:
- genuinely complete;
- functionally adequate for its legislated purpose; or
- treated as complete based on the conduct of the first insurer.
LaForme J.A. accepted that the cyclist did not provide a genuinely complete application, as the police report was missing. However, the test of whether an application is functionally adequate so as to constitute a completed application depends on whether the insurer has sufficient information to allow the first insurer (here the Fund) to give notice of the dispute to another insurer.
LaForme J.A. accepted that the Fund had a functionally adequate application on receipt of the 911 call information in September, 2008. However, the case really concerned whether an insurer failed to act diligently to obtain missing information and avoid the consequences of breaching the time period set out in the regulations. LaForme J.A. held that the 90-day clock will start to run when an insurer fails to fulfill its obligation to take steps to ascertain the missing information. In this case, the evidentiary record supported the conclusion of the arbitrator that the Fund's delay in pursuing the 911 call information justified treating the Fund as if it had received a completed application in February, 2008. In particular, LaForme J.A. held that when the last Freedom of Information request was denied in January, 2008, the Fund should have continued to pursue the information by means of seeking a court order:
The Fund was required to exercise reasonable diligence in pursuing the missing information. The Fund was one step away from turning an incomplete application into a functionally adequate application, but did not act to obtain the court order for more than seven months after the Freedom of Information route proved unsuccessful. Given the short notice period established by s. 3, it would be contrary to the legislative intent to allow the Fund to sit on the application without adequate investigation for months at a time.
Accordingly, the arbitrator had reasonably concluded that the Fund had a responsibility to pay accident benefits to or on behalf of the cyclist. The arbitrator's order was restored.
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