Plaintiff had commenced tort action for damages for injuries suffered in motor vehicle accident. Plaintiff also brought application to Financial Services Commission of Ontario (“FSCO”) seeking income replacement benefits. Plaintiff’s first claim was resolved on basis of partial settlement, but his second claim was denied. Plaintiff then commenced action for income replacement benefits, mental distress and punitive damages. Plaintiff’s insurer objected to benefits action proceeding based on plaintiff having accident benefits claim for medical expenses outstanding at FSCO. Plaintiff was subsequently granted order permitting him to withdraw claim before FSCO. Benefits action and tort action were ordered to be tried together. Insurer sought stay of benefits action on basis it would be abuse of process because it was too late for him to change forums from FSCO to court. Motion dismissed. Fact that trial may have to be adjourned did not amount to abuse of process. Nor was there prejudice to defendants in tort action. That issue had already been determined by master in issuing order that action be tried together. Contrary to submissions of insurer, plaintiff would suffer prejudice if action were stayed. Plaintiff would be required to duplicate evidence in both proceedings and his claims for damages for mental suffering and punitive damages would be limited to what was allowed at arbitration. Allowing benefits action to proceed did not violate principles that doctrine of abuse of process was intended to protect.
Korus v. State Farm Mutual Automobile Insurance Co. (Dec. 18, 2013, Ont. S.C.J., Frank J., File No. CV-13-00478162-0000) 236 A.C.W.S. (3d) 120.