Neutral Citation: 1992 ONICDRG 50

File No. A-001496

ONTARIO INSURANCE COMMISSION

BETWEEN:

PIETRO MANTI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION on PRELIMINARY MOTION

Issues:

The Applicant, Pietro Manti, was injured in a motor vehicle accident on August 5, 1991. He applied for and received accident benefits from the Wawanesa Mutual Insurance Company. Such benefits are payable under Regulation 273/90 (the "No-Fault Benefits Schedule") enacted under the Ontario Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides for these no-fault benefits.

The Applicant received weekly income benefits under section 13 of the No-Fault Benefits Schedule until February 21, 1992 when the Insurer terminated his benefits, alleging that he no longer qualified for them.

The Applicant applied for mediation of his dispute with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issues to be determined at the arbitration hearing were:

Is the Applicant entitled to benefits under the provisions of section 13(1) of the No-Fault Benefits Schedule, from February 21, 1992 onward?

If so, should any deductions be made from the weekly income benefits of $185.00, pursuant to section 13(3) of the No-Fault Benefits Schedule?

Result:

The decision is:

1. I make no finding as to the Applicant's eligibility for weekly income benefits, under section 13(1) of the No-fault Benefits Schedule.

2. The Applicant refused to provide any information with respect to his disability pension income, despite being ordered to do so by the pre-hearing arbitrator. I find that such sums are properly deducted from the $185.00 weekly income benefit pursuant to section 13(3) of the No-Fault Benefits Schedule in such amounts as to reduce the effective weekly income benefit to zero dollars.

Hearing:

A hearing was held at North York, Ontario, on December 3, 1992, before me, K. Julaine Palmer, Arbitrator.

Present at the hearing were:

Applicant:

Pietro Manti

Applicant's

Michael Brown

Representative:

Barrister & Solicitor

Insurer's

Claude Blouin

Representatives:

Barrister & Solicitor

Mina Cosolo, Senior Analyst

The proceedings were interpreted to the Applicant by Paula Tomei.

Documents before the Arbitrator :

1. Report of the Mediator, dated April 15, 1992

2. Application for Appointment of an Arbitrator, undated

3. Response of Insurer, dated June 5, 1992

4. Reply of Applicant, dated July 7, 1992

5. Report of the Pre-hearing Conference held July 24, 1992

6. Report of the Second Pre-hearing Conference held September 14, 1992

Submissions:

The Applicant's counsel made an Opening Statement. He submitted that the Applicant was now aged 62, retired, and in receipt of a Canada Pension Disability Pension, Workers' Compensation Pension, and a small pension from France. He submitted that the payments received by the Applicant were "pensions", not "payments for loss of income", according to the terms of section 13(3) of the No-Fault Benefits Schedule.

The Insurer's counsel made an Opening Statement. He quoted the Report of Mediator as to the issues which had been settled at the mediation:

The following agreement was reached between the parties:

The insurer agreed to write to the insured's medical practitioner to obtained [sic] some clarification from him with regard to the insured's medical condition. The insurer will provide a copy of that report to the insurer. [sic, read insured]

The insured agreed to provide further information to the insurer regarding his Workers' Compensation Benefit.

The above was acceptable to both parties.

The Insurer's counsel submitted that, as of February 24, 1992, the Applicant was fully able to resume normal activities.

The Insurer's counsel referred to the report of the pre-hearing arbitrator following the pre-hearing conference of July 24, 1992. At that time, the Applicant was not represented by a lawyer. An interpreter in the Italian language was present to assist the Applicant. The pre-hearing arbitrator made the following order for disclosure:

The Applicant is required to produce documentation setting out the amount, and nature of the following:

a) CPP disability pension received by the Applicant

b) monthly payment received from Workers's [sic] Compensation Plan

c) pension received from France.

This information must be provided to the representative of the Insurer, (Mr. Samis), and to the Commission, at least 7 days prior to the date set for the hearing.

The Insurer's counsel referred to the report of the pre-hearing arbitrator, following the second pre-hearing discussion, by telephone conference call on September 14, 1992. The Applicant was represented at that time by his lawyer, Michael Brown. The pre-hearing arbitrator recorded the following (at p. 2):

At the original pre-hearing held in this matter, I made the following order for disclosure:

The Applicant is required to produce documentation setting out the amount, and nature of the following:

a) CPP disability pension received by the Applicant

b) monthly payment received from Workers's Compensation Plan

c) pension received from France.

This information must be provided to the representative of the Insurer, (Mr. Samis), and to the Commission, at least 7 days prior to the date set for the hearing.

At the conclusion of the first pre-hearing, Mr. Manti indicated that he would attempt to obtain a lawyer and would consider his position with respect to the disclosure of documents.

Since the date of the first pre-hearing, in a letter dated August 16, 1992, Mr. Manti has provided the Commission with copies of numerous receipts, in support of his claim. In addition, in a letter dated July 31, 1992, Mr. Manti informed the Commission that he requests the Insurer to no longer argue about the pension income. In a letter dated August 5, 1992, Mr. Manti stated that the issue of his pension income is irrelevant to the dispute. As requested, I am enclosing copies of the receipts and letters dated July 31, 1992, August 5, 1992, and August 16, 1992, received by the Commission.

During the course of the second pre-hearing, Mr. Manti confirmed that he does not intend to comply with the order for production.

In the event the Applicant maintains his refusal to disclose the documents set out in the order for disclosure, Mr. Samis intends to bring a preliminary motion to determine the consequences that flow from the Applicant's failure to comply.

The Insurer's lawyer indicated that he was now bringing such a preliminary motion to summarily dismiss the Applicant's application for arbitration on the basis that he had not complied with the order of the pre-hearing arbitrator. He referred to section 17, particularly subsection 17.1(1) (iii) and section 18.5 of the Dispute Resolution Practice Code:

Section 17.1

(a) The Director may require the parties to participate in a pre-hearing discussion for the purpose of,

(i) identifying and obtaining agreement as to the issues for arbitration;

(ii) obtaining agreement as to facts;

(iii) ensuring the exchange of all relevant documents;

(iv) resolving by agreement any preliminary objections and procedural problems;

(v) attempting to settle the dispute; and

(vi) dealing with any other matter which may arise.

Section 18.5

Under section 22(1) of the Insurance Act,

(a) for the purpose of exercising the powers and performing their duties, the arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Supreme Court of Ontario for the trial of civil actions;

(b) an arbitrator may require to be made or may take and receive affidavits or depositions and may examine witnesses upon oath;

(c) the evidence and proceedings in any matter before an arbitrator may be reported by a stenographer who has taken an oath before the person to report the evidence and proceedings faithfully;

(d) an arbitrator may administer and certify an oath required under the Insurance Act.

The Insurer's counsel submitted that one of the main issues in the arbitration is whether the collateral benefits received by the Applicant are deductible from any weekly income benefit to which he might be entitled. He stated that the Insurer could not possibly proceed in this arbitration without this information.

The Applicant's counsel submitted that he would not defend the Applicant's position if it is to refuse to produce the documents. He submitted that all the Applicant's pensions are disability-type pension benefits, not payments for loss of income. He submitted that he had no documents with respect to the pensions, but he had amounts.

The Insurer's counsel submitted, in reply, that it might well be that the benefits are not deductible, but until we can identify the type of benefits, the Insurer's hands are tied. The Insurer's counsel noted that there was no clear pattern in the arbitration decisions to date with respect to deductibility of pension benefits. He also referred to the arbitration decision of Senior Arbitrator Rotter in Stephen Salmon v. Toronto Transit Commission (Markel Insurance), (O.I.C. File No. A-000235, dated December 20, 1991), with respect to the powers of an arbitrator under the Insurance Act.

Decision:

Section 279(1) of the Insurance Act, R.S.O. 1990, c. I.8, sets out the principle that disputes of entitlement to benefits or the amount of benefits under the No-Fault Benefits Schedule are to be resolved in accordance with sections 280 to 283 of the Insurance Act and the No-Fault Benefits Schedule.

279.--(1) Disputes in respect of any insured person's entitlement to no-fault benefits or in respect of the amount of no-fault benefits to which an insured person is entitled shall be resolved in accordance with sections 280 to 283 and the No-Fault Benefits Schedule.

Section 282(3) and (4) of the Insurance Act empowers an arbitrator and sets out the procedural framework for her decisions.

282.--(3) The arbitrator shall determine all issues in dispute and such other issues as the parties may agree.

(4) The arbitration shall be conducted in accordance with the procedures and within the time-limits set out in the regulations.

Section 21 of the Insurance Act authorizes the Director of Arbitrations to make rules for the practice and procedure to be observed in arbitrations, as follows.

21. Subject to the procedures and time limits for the conduct of arbitrations set out in the regulations, the Director may make rules for the practice and procedure to be observed for a proceeding before him or her or before an arbitrator.

According to that authority, the Dispute Resolution Practice Code, referred to above, was produced.

Section 22 of the Insurance Act sets out the power of arbitrators to summon witnesses and to compel the production of documents, records, and things. The power is the same as is given to the Ontario Court (General Division) for the trial of civil actions.

22.--(1) For the purpose of exercising the powers and performing their duties under this or any other Act, the Commissioner, the Superintendent, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Ontario Court (General Division) for the trial of civil actions.

(2) A person referred to in subsection (1) may require to be made or may take and receive affidavits or depositions and may examine witnesses upon oath.

(3) The evidence and proceedings in any matter before a person referred to in subsection (1) may be reported by a stenographer who has taken an oath before the person to report the evidence and proceedings faithfully.

(4) A person referred to in subsection (1) may administer and certify an oath required under this Act.

It is within this framework that the pre-hearing arbitrator ordered the Applicant to produce details about his pension income.

Practice and procedure in arbitrations at the Ontario Insurance Commission is expeditious. There are no examinations for discovery. The pre-hearing conference is the vehicle used to attempt to gain parties' co-operation to produce documents or, in the absence of agreement, in proper cases, to compel their production.

In this case, details of the three pensions the Applicant receives were ordered to be produced. This has not been done. The Applicant has refused to co-operate in bringing essential evidence on one of the main issues in the case before the arbitration hearing.

In my view, in the light of the Applicant's apparent contempt for the arbitration process, I have two options: to cite the Applicant for contempt, or to draw an adverse inference with respect to both the nature of his pension income and its amount.

It is not for the Applicant to control what information about his pensions will be heard in this arbitration. The pre-hearing arbitrator determined that he should provide documentation setting out the amount and the nature of his pension income. He has chosen to disregard this order. By withholding such critical evidence, the Applicant cannot advance his case, in the light of the obvious unfairness to the opposite party.

The contempt proceedings of this arbitration are governed by the Statutory Powers Procedure Act, R.S.O. 1990, Chap. S.22, s. 13., which sets out a complex procedure, involving stating a case to the Divisional Court:

Where any person without lawful excuse,

(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or

(b) being in attendance as a witness at a hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,

the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in it like manner as if he or she had been guilty of contempt of the court.

In this case, in my view, it is more appropriate to draw an adverse inference against the Applicant, than to commence such complex and lengthy proceedings before the Divisional Court. Accordingly, on this preliminary motion, I hold that the Applicant is deemed to be in receipt of such an amount of payments for loss of income that the weekly benefit which might be awarded to him from February 21, 1992 onward is reduced to zero dollars, pursuant to the provisions of section 13(3) of the No-Fault Benefits Schedule.

I have yet to hear any evidence with respect to the Applicant's eligibility for weekly income benefits after February 21, 1992. In the event that the parties wish to reconvene the hearing for this purpose, they may so inform the Office of the Registrar.

I make no order as to the expenses of the Applicant.

December 17, 1992

K. Julaine Palmer Arbitrator

Date