Saskatchewan – referral to statutory arbitration requires a dispute between parties subject to legislation

In Antoniadou v. Saskatchewan Government Insurance, 2020 SKCA 20, Saskatchewan’s Court of Appeal reiterated a basic premise in dispute resolution that a dispute must exist between parties subject to the dispute resolution, whether by statute or otherwise.  Though the dispute resolution involved naming an umpire under a statutory scheme, the Court’s reason apply equally to commercial arbitration and remind parties that not all disagreements over a set of facts falls within the scope of the dispute resolution.

The Court of Appeal was asked to overturn the decision of Mr. Justice Grant M. Currie in Antoniadou v. Saskatchewan Government Insurance, 2019 SKQB 138.  

As an insured under The Automobile Accident Insurance Act, RSS 1978, c A-35 (“AAIA”), Appellant had applied to the Court of Queen’s Bench for the appointment of an umpire to decide a disagreement stemming from her insurance benefits under the AAIA.  The dispute involved dissatisfaction by Appellant’s service provider over the rate of payment made by Saskatchewan Government Insurance (“SGI”).  Service providers accredited by SGI were reimbursed at $92.68 per hour but the agency Appellant hired was not accredited and SGI accepted to pay out at only $46.50 per hour.

Currie J. considered the facts and dismissed the request, holding that “this is not an issue between the insured and SGI, it is not properly the subject of arbitration under s. 39”.   

[8] When Mr. Macas, on behalf of Ms. Antoniadou, requested payment at the accredited repairer rate, SGI provided its standard response. In that response SGI rejected payment at the higher rate, it advised of Ms. Antoniadou’s right to pursue arbitration, and it named its appraiser as above in case there were an arbitration. In response, Mr. Macas, on behalf of Ms. Antoniadou, named himself as her appraiser and brought this application”.

Contrary to the requirements in the AAIA, an umpire is appointed only for disputes between those subject to the legislation.  In the case before Currie J., he held that “because there is no proper arbitrable issue between Ms. Antoniadou and SGI, the application is dismissed with costs”.

[10] The key factor at play on this application, though, is that this dispute is not between the insured (in this case, Ms. Antoniadou) and the insurer, SGI. This dispute is between Mr. Macas and SGI. It is about his dissatisfaction with the rate paid for labour by SGI to non-accredited repairers. It is Mr. Macas — and not Ms. Antoniadou — who has an issue with SGI over the rate of payment. It is Mr. Macas who is determined to pursue arbitration on the subject many times over”.

On appeal, the Court of Appeal maintained Currie J.’s decision. The Court pointed out that a chambers judge has the option to appoint as the legislation provides that the judge “may”.  “A judge acting pursuant to s. 39, condition 6 “may” appoint an umpire and, by virtue of that language, is not in a position where he or she must reflexively or automatically appoint an umpire when asked to do so”.

The Court further pointed out that, on the facts, it would not have been appropriate for a court to exercise authority because there was no disagreement between them.

Here, the Chambers judge made no error in asking whether the matter before him involved a disagreement between “the insured and the insurer” about an amount payable as per s. 39, condition 9(1). In the absence of a disagreement of this sort, it would not have been appropriate for him to have exercised his authority in favour of appointing an umpire”.

The Court added that Currie J. was entitled to find that the disagreement was in fact not between Appellant/insured and SGI/insurer, but between the service provided to the Appellant and SGI.          

urbitral note – First, most cases task the court with deciding whether the dispute between the parties qualifies as one which the parties had (i) agreed by contract or (ii) were required by legislation to submit to arbitration.  This case required the court to look at whether the parties, in evident disagreement over a shared set of facts were the right parties to the dispute resolution.

The decision required the court to decide if the parties had the status required by legislation, namely “insured” and “insurer”, in order to trigger the opportunity to exercise its discretion to name or not name an “umpire”.