Neutral Citation: 1992 ONICDRG 25

P-000185

ONTARIO INSURANCE COMMISSION OFFICE OF THE DIRECTOR OF ARBITRATIONS

BETWEEN:

AMNON AJZENSZTADT

Applicant (Appellant)

and

CAA INSURANCE COMPANY (ONTARIO)

Insurer (Respondent)

Before:

M. Patricia Richardson Director's Delegate

Counsel:

Audrey Douek(for Appellant, Applicant)

James M. Flaherty(for Respondent, Insurer)

APPEAL DECISION

I. NATURE OF PROCEEDINGS

By Notice of Appeal filed March 2, 1992, the insured person, Amnon Ajzensztadt (Appellant), appeals from the Order of Frederika Rotter, Arbitrator, dated February 6, 1992. The Order dealt with applications by the Appellant and five other applicants requesting reimbursement, under section 6(1)(f) of Regulation 273/90 (the "'No-Fault Benefits Schedule"), of legal fees incurred in connection with the completion of applications for no-fault accident benefits. The Order found that the applicants were not entitled to reimbursement for legal fees under section 6(1)(f). Of the six applicants, only the Appellant appeals from the Order of the Arbitrator.

The Appellant requests an Order stating that he is entitled to be reimbursed the $200.00 fee charged by his solicitors for filing the accident benefit forms.

II. PRELIMINARY ISSUE

On May 4, 1992, the parties agreed that the appeal would be heard on May 16, 1992. On May 13, Counsel for the Appellant, Ms. Douek, telephoned the Office of the Director to request an adjournment of the hearing, indicating that Counsel for the Respondent, Mr. Flaherty, consented to the adjournment. Ms. Douek was advised that I would hear argument on the question of an adjournment, but that the parties should be prepared to proceed with the Appeal should an adjournment not be granted.

On May 16, Ms. Douek filed a book of authorities and indicated that, while she was prepared to argue the Appeal, her client's interests would be prejudiced if she were required to proceed. She stated her preference for an adjournment in order to prepare and file written argument and to give Mr. Flaherty and me a chance to read the authorities filed and the written argument. As reasons for the failure to file written material in support of argument on appeal, Ms. Douek stated only that she had taken the file over from other counsel and was unfamiliar with the procedural requirements of the dispute resolution appeal process.

Mr. Flaherty did not oppose the request for an adjournment, but indicated that he was prepared to proceed with oral argument.

I declined to grant an adjournment, stating that it is the policy of the Office of the Director not to grant adjournments simply on consent of the parties in order to accommodate the schedules of counsel. Oral hearings on appeal are not as of right. As they involve preparation by the Director and staff of the Office of the Director, adjournments will be granted for good reason only. The Office of the Director will issue a statement in due course setting forth its policy on adjournments for both arbitration and appeal hearings.

While the application for an adjournment was denied, I stated that I would be prepared to receive and consider written argument following the hearing. At the conclusion of the hearing, however, Counsel for the Appellant indicated that she was content to rely on oral argument.

III. ARGUMENT AND FINDINGS

The Appellant argued that the Arbitrator erred in holding that legal fees incurred in connection with the completion of an application for no-fault accident benefits are not an expense for which an insurer is liable under section 6(1)(f) of the No-Fault Benefits Schedule. Section 6 of the Schedule provides in part as follows:

6. (1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(b) prostheses, dentures, prescription eyewear, hearing aids, and other medical or dental devices;

(c) rehabilitation, life-skills training and occupational counselling and training;

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

In determining whether reimbursement for legal fees incurred in connection with the completion of application forms for non-fault accident benefits is payable under section 6 (1)(f) of the No-fault Benefits Schedule, the Arbitrator relied on the three criteria governing an insurer's liability for expenses under that provision, enunciated in Plows v. Jevco, OIC File Nos. A-000175, A-000588, dated January 16, 1992, and confirmed on appeal in Jevco v. Plows, File Nos. P-000175, P-000588, dated May 22, 1992. These criteria are as follows:

(i) The expense must be a reasonable expense resulting from the accident;

(ii) The expense must be required because of the accident; and

(iii) A medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation if the Insurer so requires.

Applying these criteria, the Arbitrator held that expenses in respect of legal assistance in completing an application for accident benefits are not required "because of the accident". The Arbitrator found that, in many circumstances, difficulties in completing the relevant forms are the result of factors unrelated to the accident, such as language barriers or lack of literacy skills. The Arbitrator found further that, even where assistance is required "because of the accident" -- that is, because, for example, the injuries sustained in an accident render a claimant incapable of completing the requisite forms legal assistance is not required. Finding "as a fact" that the services of a lawyer (and presumably those of a para-legal) are not necessary to complete the forms, the Arbitrator held that "the cost of such services [does] not constitute a reasonable expense resulting from the accident".

With reference to the third criterion set out above, the Arbitrator held that, by virtue of section 6 (4) of the No-Fault Benefits Schedule, expenses under section 6(1)(f) "must be such that a medical practitioner might validly opine as to their necessity". Since a medical practitioner could have no valid opinion as to the necessity for legal fees, the Arbitrator concluded that this expense was not contemplated by section 6 (1)(f).

The Appellant argued that the Arbitrator erred, first, in holding that the "other goods and services" contemplated by section 6 (1)(f) must be of a medical or rehabilitative nature; and secondly, in holding that the assistance of a lawyer or para-legal is not a service that an insured "requires because of the accident" within the meaning of section 6 (1)(f).

The Appellant posited a number of general policy considerations that, in her view, should govern the interpretation of the No-Fault Benefits Schedule. First, it was contended that the legislation is remedial and should be given a broad and liberal interpretation that best achieves the object and intent of the legislation. In support of this proposition, reference was made to the following material: (1) a decision of Arbitrator Naylor, Hui v. Security National Insurance Company, OIC File No. 000055, dated November 15, 1991, at 14; (2) excerpts from Mr. Justice Coulter Osborne's Report of Inquiry Into Motor Vehicle Accident Compensation in Ontario (1988); and (3) two cases that predate the current no-fault legislation, Migliore v. Co-Operators Insurance Association (1987), 1987 CanLII 4391 (ON HCJ), 61 O.R. (2d) 449 (H.C.); and July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129 (C.A.).

Secondly, while conceding that the contra proferentem rule is, strictly speaking, inapplicable in the circumstances, the Appellant nevertheless contended that an inequality of bargaining power as between the insurer and the insured militates in favour of resolving any uncertainty or ambiguity in the Schedule in favour of the insured.

I was not referred to, nor am I aware of, any authority for the latter proposition. While I agree that the legislation is remedial and should be interpreted broadly, this does not permit me to do violence to the plain wording of the legislation or to ignore the relevant rules of statutory interpretation.

With respect to the first alleged ground of error, the Appellant stated that it was wrong to conclude, on the basis of section 6(4), that expenses under section 6(1)(f) "must be such that a medical practitioner might validly opine as to their necessity". The Appellant argued that because section 6(4) states that an insurer "may" require a statement signed by a medical practitioner, the section contemplates that medical verification will be required only where the nature of the expense makes it reasonable to so require.

The Appellant also referred to another decision of Arbitrator Rotter, Donlan v. The Personal Insurance Company, OIC File No.A-000133, dated October 9, 1991. In that case, an insured who suffered a back injury was no longer able to lift her daughter's wheelchair into her motor vehicle. The insured was awarded an amount under section 6(1)(f) in order to purchase a replacement van equipped with a wheelchair lift. The fact that a medical practitioner could have expressed no valid opinion as to the necessity of a lift for the insured's treatment or rehabilitation did not operate to preclude an award under section 6(1)(f).

I have concluded that the Arbitrator did not err in holding that goods and services available under section 6 (1)(f) of the No-Fault Benefits Schedule must be such that a medical practitioner might validly opine as to their necessity. The Arbitrator quite properly construed section 6(1)(f) in the light of section 6(4) of the Schedule. It is a principle of statutory construction that the provisions of a statute should be read together with other provisions of the legislation, and that a construction should be adopted that gives effect to all the provisions under consideration, rather than one that renders some provisions meaningless. In the words of Driedger, Construction of Statutes (2d ed., 1983), at 91-92:

Not only must the whole Act be read, but every provision of the Act should, if possible, be given meaning; hence, if there are rival constructions the general principle is that the construction that gives effect to the whole of the statute, or to the provision under consideration, should be adopted in preference to one that renders part thereof meaningless.

To interpret section 6 (1)(f) as including goods and services concerning the need for which a medical practitioner or psychological advisor could have no valid opinion would be to render section 6 (4) meaningless in the context of such goods and services.

I do not accept the Appellant's argument that, because section 6 (4) provides that an insurer "may" require medical verification, it is contemplated that such verification will be demanded only where the nature of the expense makes such an opinion appropriate. The language of section 6 (4) imposes no such limitation on the power of an insurer to require medical verification; rather, the subsection clearly permits insurers to require verification before making any payment for an expense under section 6 (1). It is a fundamental rule of statutory interpretation that limiting words should not be imported into a provision unless the ordinary and grammatical sense leads to some absurdity or repugnancy or inconsistency with the rest of the enactment: "The words of a statute should never, in interpretation, be added to or subtracted from without almost a necessity.": 31 Canadian Encyclopedic Digest (Ont. 3d), s.73.

With reference to the decision of Arbitrator Rotter in Donlan v. The Personal Insurance Company, supra, it is significant that, in that case, it was the amount rather than the nature of the expense in question that was in issue. The liability of an insurer under section 6(1)(f) for an expense concerning which a medical practitioner could express no valid opinion was not considered by the Arbitrator.

The Appellant disagreed also with the Arbitrator's findings that the legal costs in question were neither required because of the accident nor a reasonable expense resulting from the accident. The expense is required because of the accident, it was argued, because completion of application forms is a pre-condition to access to no-fault benefits. Moreover, legal assistance in completing the forms is necessary, as the forms are complex and require an understanding of the governing legislation and its application that is not possessed by most insured persons.

To illustrate the latter point, the Appellant referred to item 6 of the Application for Accident Benefits (Form 1), and to a decision of Arbitrator Naylor, McCormick v. Economical Mutual Insurance Company, OIC File No. A-000139, dated October 2, 1991. Form 1 requires a statement of the applicant's gross weekly income from employment for the last four weeks preceding the accident, and of his or her gross income for the 52 weeks preceding the accident. The McCormick decision held that the legislation governing the calculation of gross weekly income from employment is ambiguous and susceptible to two interpretations, one more beneficial to the applicant than the other. The Appellant argued that an applicant for accident benefits with no legal expertise might not complete item 6 in a manner designed to maximize the benefits available under the more beneficial interpretation adopted by Arbitrator Naylor in McCormick. Moreover, while it had been suggested that access to legal services is obviated by the assistance in completing forms offered by some insurers, it was pointed out that insurers have an economic interest in minimizing the benefits paid, and are thus not in the best position to offer disinterested assistance.

Apart from the foregoing, no evidence was placed before me on appeal as to the requirement for legal assistance in completing an application for no-fault benefits. At arbitration, the Arbitrator made a factual finding that the services of a lawyer are not required to fill out an application for accident benefits. I accept the Respondent's submission that, in the light of this clear finding of fact, the applicable principles are those articulated in Calogero v. Co-Operators General Insurance Co., OIC File No.P-000251, Decision of the Director (February 13, 1992). In Calogero, it was stated (at 7-8):

The principle, as generally understood, is one should only interfere in the discretion exercised by the trier of fact if it is so clearly wrong as to amount to an injustice (Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367). There must be some special reason to doubt the arbitrator's conclusions such that to overturn them would only be found in an extraordinary case... . While the Director is required to re-examine the evidence to ensure no error occurred and that the arbitral findings are supportable given the evidence, it is not the Director's function to substitute her assessment for that of the arbitrator.

Applying these principles to the present case, I have concluded that the Arbitrator's determination was not in made error or in disregard of the evidence presented at arbitration, and accordingly that it should not be disturbed.

For the reasons stated, the cost of legal services incurred in connection with the completion of an application for accident benefits is clearly not an expense for which an insurer is liable under section 6(1)(f) of the No-Fault Benefits Schedule. Nevertheless, the evidence and argument before me suggest the desirability of making available to insured persons knowledgeable, disinterested assistance in completing applications for no-fault benefits. The evidence indicates that some insured persons require assistance in completing application forms, whether for reasons of lack of education or the necessary language or literacy skills, or because their injuries render them incapable of filling out the requisite forms. Although many insured persons do not require such assistance, or have access to assistance from others, this is not always the case. And while the evidence indicates that some insurers are active in helping insured persons to complete application forms, the practice is not universal. Moreover, the potential for conflict of interest in the provision of such services by insurers argues against relying on this source of assistance. The assistance of a lawyer or law clerk, or some other disinterested party with knowledge of the interpretation and application of the no-fault legislation, would undoubtedly further the goal of access to no-fault benefits, which underlies the legislation.

IV. EXPENSES

The Appellant has not requested his expenses of this appeal, and accordingly no order as to expenses is made.

V. ORDER

1. The appeal from the Order of Frederika Rotter, Arbitrator, is dismissed.

July 13, 1992

M. Patricia Richardson

Director’s Delegate