Neutral Citation: 1993 ONICDRG 39

File No. A-001553

ONTARIO INSURANCE COMMISSION

BETWEEN:

MAGDY AMIN

Applicant

and

SECURITY NATIONAL INSURANCE COMPANY

Insurer

DECISION

Issue

The applicant, Magdy Amin, was injured in a motor vehicle accident on June 30, 1991. As a result of his injuries, he received physiotherapy treatments. He was indemnified for 80 per cent of the cost of the treatments through his employment insurer, Connecticut General Life Insurance Company. Security National indemnified Mr. Amin for the other 20 per cent under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8 ("the Act"). Mr. Amin wants Security National to cover the full cost of the treatments because his employment insurance policy has a lifetime maximum of $30,000 for major medical benefits, and his entitlement to future benefits under that policy will otherwise be reduced by the amount paid by the employment insurer. The insurer relies on section 268 of the Act and subsection 9(1) of the No-Fault Benefits Schedule.

Mediation was unsuccessful in resolving the dispute between the applicant and the insurer, and the applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Is Mr. Amin entitled to be reimbursed by Security National for physiotherapy expenses which were paid by Connecticut General?

2. Mr. Amin claims his expenses incurred in the hearing.

Mr. Amin also claims interest on any outstanding amounts owing.

Result

1. Mr. Amin is not entitled to be reimbursed by Security National for physiotherapy expenses which were paid by Connecticut General.

2. Mr. Amin is entitled to his expenses incurred in the hearing.

Hearing

The hearing was held in Toronto, Ontario, on June 17, 1993, before me, Nancy Makepeace, arbitrator.

Present at the hearing were:

Applicant: Mr. Magdy Amin

Applicant's Representative: Ms. Ava Hillier Barrister and Solicitor

Insurer's Representative: Mr. Alexander Voudouris Barrister and Solicitor

Mr. Amin testified. The parties presented an agreed statement of facts.

Documents introduced into evidence were:

Exhibit 1 List of the physiotherapy treatments for which benefits are claimed

Exhibit 2 Mr. Amin's completed Application for Accident Benefits

Other documents which were part of the record were:

Report of Mediator, dated April 24, 1992

Application for Appointment of an Arbitrator, dated December 15, 1992

Response by Insurer, dated February 15, 1993

Reply by Insured Person, dated February 22, 1993

Letter of pre-hearing arbitrator Fred Sampliner, dated April 23, 1993

The parties referred me to one case: Paese v. United States Fidelity & Guaranty Co. (1985), 1985 CanLII 1984 (ON HCJ), 17 C.C.L.I. 1 (Ont. District Court), which followed the Supreme Court of Canada decision, Madill v. Chu, 1976 CanLII 32 (SCC), [1977] 2 S.C.R. 400, 71 D.L.R. (3d) 295, 12 N.R. 187.

The proceedings were recorded by Ms. Elizabeth Monteiro, court reporter, of Professional Court Reporters.

Reasons

Evidence

The parties did not dispute the facts in this case. They submitted an Agreed Statement of Facts, the relevant part of which I paraphrase as follows:

1. At the time of the accident, Mr. Amin held an automobile liability insurance policy with Security National.

2. On June 30, 1991, Mr. Amin was involved in a motor vehicle accident, which resulted in soft tissue injuries to his neck, shoulders and back.

3. Mr. Amin's injuries do not satisfy the threshold test set out in subsection 266(1) of the Act.

4. On July 17, 1991, Mr. Amin applied for benefits, including supple-mentary medical and rehabilitation benefits under section 6 of the No-Fault Benefits Schedule.

5. At all material times, Mr. Amin was employed with McDonnell Douglas, and he was insured through his employment with Connecticut General Life Insurance Company.

6. The Connecticut General policy provided for major medical benefits coverage of 80% of Mr. Amin's physiotherapy expenses. The policy provided a lifetime maximum of $30,000 for major medical benefits.

7. On July 31, 1991, Mr. Amin made an application to Connecticut General for accident and sickness benefits, including major medical benefits.

8. As a result of his injuries, Mr. Amin received about 55 physiotherapy treatments from Pro Action Physiotherapy between July 24, 1991 and December 10, 1991. A list of the physiotherapy treatments for which benefits are claimed was entered as Exhibit 1.

9. The total cost of the treatments was $1,705.

10. Mr. Amin was indemnified by Connecticut General for 80 percent of the cost, or $1,364, which he paid to Pro Action Physiotherapy.

11. Mr. Amin was indemnified by Security National for 20 percent of the cost, or $341.

Mr. Amin testified that he has worked as an aircraft assembler at McDonnell Douglas for seven years, and that the insurance with Connecticut General is part of the benefit package provided under his collective agreement. He understands that Connecticut General will not reinstate the $30,000 maximum, though they would have if he had been injured at work. He has never drawn on his entitlement to major medical benefits before.

Findings

Subsection 9(1) of the No-Fault Benefits Schedule is as follows:

The insurer will not pay any portion of an expense referred to in subsection 6(1) or (2) or subsection 7(1) for a service that is reasonably available to the insured person under any insurance plan or law or under any other plan or law that will pay the expense.

The issue before me is whether the benefits Mr. Amin received from Connecticut General were "reasonably available" under subsection 9(1).

I find that the benefits were "available" because they were paid promptly by Connecticut General and Mr. Amin received the physiotherapy treatments he needed as a result of the accident. The question remains whether the benefits were "reasonably available".

On behalf of Mr. Amin, Ms. Hillier submitted that any ambiguity in the meaning of "reasonably available" should be resolved in favour of the applicant, in order to reflect the legislature's intent that insured persons should be fully compensated through the No-Fault Benefits Schedule. Mr. Voudouris submitted that the contra proferentem rule does not apply to interpretation of the No-Fault Benefits Schedule.

In my view, the words "reasonably available" must be interpreted in accordance with the ordinary rules of statutory interpretation, and the contra proferentem rule does not apply. The contra proferentem rule says that any ambiguity in contract language should be interpreted against the party seeking to rely on it. In Madill v. Chu, 1976 CanLII 32 (SCC), [1977] 2 S.C.R. 400, 71 D.L.R. (3d) 295, 12 N.R. 187, the Supreme Court of Canada held that the contra proferentem rule does not apply to interpretation of statutes. Several arbitration decisions have applied the ruling in Madill v. Chu in interpreting the No-Fault Benefits Schedule: see Ajzensztadt et al. v. CAA Insurance Company (Ontario) et al., File Nos. A-000185, et al., upheld on appeal, File No. P-000185; Bress and Bress v. State Farm Insurance Companies, File No. A-000191 and A-000192; and Scavuzzo v. Canadian Home Assurance Company, File No. A-000626, upheld on appeal, File No. P-000626. I adopt the following statement made by the Director's Delegate in the Ajzensztadt appeal decision:

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.

Ms. Hillier invited me to find that benefits under the Connecticut General policy were not "reasonably available" because they were negotiated and paid for through collective bargaining. However, subsection 9(1) makes the no-fault insurer an excess or secondary insurer relative to "any insurance plan or law or under any other plan or law that will pay the expense" [emphasis added]. The provision is broadly worded, and does not exempt insurance plans for which a separate premium is paid. If this is unfair, it is an unfairness built into the legislative scheme. My powers as an arbitrator are limited to those set out in the Act and Schedule, and I have no jurisdiction to disregard the words of the Schedule: see Dray v. Royal Insurance Company of Canada, File No. A-000025; Pallotta v. Alpina Insurance Co. Ltd. (Zurich Insurance Company), File No. A-000808; and Suominen v. Co-Operators General Insurance Company, File No. A-000084.

Ms. Hillier submitted further that the benefits paid by Connecticut General were not "reasonably available" because Mr. Amin's remaining lifetime benefit entitlement for major medical benefits under that policy has been reduced by $1,364 as a result of his receipt of these benefits. In Ms. Hillier's submission, Mr. Amin is thereby disadvantaged as a result of the motor vehicle accident. If he should become ill or injured in the future, he could receive less benefit from Connecticut General than he would have if not for the motor vehicle accident. In Ms. Hillier's submission, this result cannot have been intended by the legislature: the object of the scheme is to put Mr. Amin in the same position he was in before the accident. Ms. Hillier noted that Mr. Amin cannot sue to recover the $1,364 from any tort-feasor, as he could have before the Ontario Motorist Protection Plan came into effect.

Mr. Voudouris, on behalf of the insurer, stated that the predecessor to subsection 9(1) under the previous no-fault scheme ("Schedule C") referred to "available" benefits and that the word "reasonable" was added in the 1990 amendments. He submitted that "reasonably" does not substantially qualify "available" and that the Connecticut General benefits were "reasonably available" by virtue of having been paid. I cannot accept the interpretation proposed by Mr. Voudouris because it would make the word "reasonably" meaningless, which runs counter to the ordinary rules of statutory interpretation.

Mr. Voudouris submitted that no substantive limit on the benefits available would make them not "reasonably available". Looking to the future, Mr. Voudouris submitted that Mr. Amin might not be entitled to receive further Connecticut General benefits anyway, if he leaves his job or is laid off.

In my view, the phrase "reasonably available" must be interpreted in accordance with the remedial character of the No-Fault Benefits Schedule. Consideration must also be given to its legislative context. Subsection 9(1) of the Schedule reflects the legislature's intent of making the no-fault insurer a secondary or excess insurer with regard to subsection 6(1) and (2) and subsection 7(1) benefits. In order to determine whether a benefit is "reasonably available", I must consider all the circumstances, including the effect on the applicant of any substantive benefit limits or difficulties in obtaining benefits.

Considering all the circumstances in this case, I find that the benefits were "reasonably available" to Mr. Amin. The only limit on the availability of major medical benefits under the Connecticut General policy was the lifetime maximum. Mr. Amin's remaining lifetime entitlement to major medical benefits was reduced from $30,000 to $28,636 on account of the benefits received. I heard no evidence that this has any impact on Mr. Amin at present. I heard no evidence that Mr. Amin will find it necessary to draw on his remaining benefits in the future. I cannot speculate about what will happen to Mr. Amin's health or his job in the future.

Expenses

Mr. Amin claims his expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.

In the arbitration decision, McCormick v. Economical Mutual Insurance Company, File No. A-000139, arbitrator Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Calogero v. The Co-Operators General Insurance Company, File No. P-000251.

Mr. Amin is entitled to his expenses in this proceeding. Though he was unsuccessful in his claim, he brought an arguable case on a novel issue of law. If the parties are unable to agree on the amount of expenses, I remain seized of this matter and either party may apply for assessment of the expenses before me.

Order

1. Mr. Amin is not entitled to be reimbursed by Security National for the physiotherapy expenses paid by Connecticut General.

2. Mr. Amin is entitled to his expenses incurred in respect to the arbitration.

June 29, 1993

Nancy Makepeace Arbitrator