Neutral Citation: 1994 ONICDRG 29
File No. A-004077
ONTARIO INSURANCE COMMISSION
BETWEEN:
COMFORT AYERTEY
Applicant
and
TORONTO TRANSIT COMMISSION (MARKEL INSURANCE COMPANY OF CANADA)
Insurer
DECISION ON PRELIMINARY ISSUE
Issue:
At the pre-hearing discussion held on February 21, 1994, the parties were unable to agree on what issues should be included in the arbitration hearing. Mrs. Ayertey disagrees with the inclusion of the question of her eligibility for supplementary medical and rehabilitation benefits, under section 6 of Ontario Regulation 6721. The Toronto Transit Commission ("the T.T.C.") takes the position that all of the outstanding disputes between the parties should be included in this hearing.
The preliminary issue is:
What issues should be included in the arbitration hearing?
Result:
Mrs. Ayertey's eligibility for supplementary medical and rehabilitation benefits, under section 6 of the Schedule, is not an issue in this arbitration. The issues to be determined are:
Is Mrs. Ayertey entitled to weekly income benefits, under section 12 of the Schedule, for any period from September 14, 1992 to February 28, 1993?
Is Mrs. Ayertey entitled to interest on any amounts that are found to be owing, according to section 24 of the Schedule?
Should the T.T.C. be required to pay a special award, under section 282(10) of the Insurance Act, because it unreasonably delayed or withheld the payment of benefits?
Should Mrs. Ayertey be awarded her expenses related to the arbitration hearing, according to section 282(11) of the Insurance Act?
Hearing:
The parties agreed that the preliminary issue would be dealt with by me, David R. Draper, by way of oral submissions made at the pre-hearing discussion held on February 21, 1994. Mrs. Ayertey was present, represented by Mr. Altor Shields, Barrister and Solicitor. The T.T.C. was represented by Ms. Karen McGuire, Barrister and Solicitor.
Cases considered:
Rosa DeCicco and State Farm Mutual Automobile Insurance Company, O.I.C. No. A-000277 (December 10, 1991), upheld on appeal, O.I.C. No P-000277 (February 21, 1992).
Chuong Vo and Maplex General Insurance Company, O.I.C. No. A-002777 (October 4, 1993).
Reasons for Decision:
1. The Facts
On June 28, 1992, Mrs. Ayertey was involved in an accident while she was a passenger on a T.T.C. bus. She applied for and received weekly income benefits, under section 12 of the Schedule, until September 12, 1992, when the benefits were terminated.
In February 1993, Mrs. Ayertey applied for mediation of her dispute with the T.T.C. She was represented during the mediation by the law firm of Lofranco & Sabetti. The Report of Mediator, dated April 20, 1993, indicates as follows:
The T.T.C. did not accept Mrs. Ayertey's position that she was eligible for weekly income benefits of $397.13 per week from September 13, 1992 to February 28, 1993.
The T.T.C. did not agree to pay for two reports from Dr. Agulefo ($250.00).
The T.T.C. did not agree to pay for a vocational discharge summary prepared by Premier Treatment and Health Management Centre ($250.00).
The T.T.C. agreed to pay all of the outstanding treatment accounts from Premier Treatment and Health Management Centre.
The parties agreed that the T.T.C. would not pay for any additional "case management" fees from Premier Treatment and Health Management Centre. The T.T.C. took the position that the case management fees that it paid were unreasonable.
Mr. Shields, of the law firm of Lofranco and Sabetti, submitted an Application for Appointment of an Arbitrator, dated May 16, 1993, on behalf of Mrs. Ayertey. The Application raises the following issues:
Weekly income benefits from September 14, 1992 to February 28, 1993
Outstanding medical and rehabilitation benefits
Interest
Special award
Expenses of the arbitration
On June 10, 1993, Ms. McGuire prepared a Response by Insurer on behalf of the T.T.C. The Response addresses the issues raised by Mrs. Ayertey, and states:
Under dispute, medical and rehabilitation benefits have been paid up to February 28, 1993, except for management fees of Premier Treatment Centre unrelated to the actual treatment rendered to the insured. Such fees have not been paid on the basis that they are unreasonable. Treatments rendered by Premier Treatment Centre were available at an OHIP funded facility close to the claimant's residence. The claim for dental work is unsupported by medical evidence on file.
A pre-hearing discussion took place on August 26, 1993. Mrs. Ayertey was present, represented by Mr. Shields. The T.T.C. was represented by Ms. McGuire. The confirming letter, dated August 30, 1993, states that the issues in dispute were identified as follows:
Weekly Income Benefits
The Applicant seeks weekly income benefits of $397.12 per week from September 13, 1992 to February 28, 1993.
The Insurer terminated benefits on September 13, 1992 based upon medical information and surveillance material.
The duration of disability is in dispute.
Supplementary Medical and Rehabilitation Benefits
The Applicant seeks payment of Dr. Leibovitz' account for $1,325.00 for treatment of her temporomandibular joint problem.
The Applicant also seeks payment of case management (administrative) fees to Premier Treatment Centre for vocational rehabilitation services. The Applicant agreed to provide the full particulars of the amounts claimed within two weeks (September 9, 1993).
The Insurer claims repayment of amounts paid to Premier Centre following September 13, 1992, which Ms. McGuire stated were paid under protest. The Insurer will provide the full particulars of the amounts claimed as overpaid within two weeks (September 9, 1993).
Interest
The Applicant claims interest on outstanding benefits.
Costs
The Applicant claims her costs of the arbitration proceeding.
Special Award
The Applicant abandoned her claim for a special award against the Insurer.
On October 5, 1993, Mr. Shields sent the T.T.C. an Application for Additional Accident Benefits on behalf of Mrs. Ayertey, claiming $2,775.40 for taxi expenses for the period from July 3, 1992 to September 1992. As I understand it, these expenses relate to the supplementary medical and rehabilitation benefits that she had previously claimed.
In a letter to the Ontario Insurance Commission, dated October 21, 1993, Mr. Shields requested an adjournment of the arbitration hearing, scheduled for November 29 and 30, 1993. This request was considered by Mr. Malcolm, Registrar, and denied. Mr. Malcolm wrote to Mr. Shields on October 26, 1993, as follows:
As requested, I am writing to confirm our discussion with respect to the Chiacchia and Ayertey matters. In both cases, I am unable to grant your request for adjournment. I do appreciate there were mix-ups with respect to your calendar. However, I have advised it is our responsibility to provide an expedited service and our adjournment policy clearly indicates that we will not grant adjournments to accommodate counsel's calendars.
On November 22, 1993, the Ontario Insurance Commission received a letter from Mr. Shields, by facsimile transmission, stating: "We would advise that our client has instructed us to discontinue this proceeding." On November 23, 1993, Mr. Shields advised the Arbitration Caseworker that the application was being withdrawn, but that it was likely that Mrs. Ayertey would re-apply for arbitration at a later date.
In a letter dated November 23, 1993, the Commission advised the parties that due to Mrs. Ayertey's withdrawal, her file would be closed. On November 24, 1993, Ms. McGuire wrote to the Commission asking that the $1,000 filing fee be returned. Ms. McGuire again wrote to the Commission on November 26, 1993, questioning Mrs. Ayertey's right to withdraw her application without dealing with the outstanding issues between the parties. There is no indication, however, that any conditions were placed on Mrs. Ayertey's withdrawal.
Mr. Shields submitted a new Application for Appointment of an Arbitrator, dated December 5, 1993, on behalf of Mrs. Ayertey, together with the filing fee of $50. The new application is narrower than the previous one. It does not include any issue with respect to supplementary medical or rehabilitation expenses, or transportation expenses. It raises the following issues:
Weekly income benefits from September 14, 1992 to February 28, 1993.
Interest
Special award
Expenses of the arbitration
The Ontario Insurance Commission re-opened the old file. The Commission advised the T.T.C. that an Application had been filed and stated:
We note that you have already paid your $1,000.00 assessment fee at the time of the first application. However, please complete and serve a Response by Insurer (Form 5) on the insured's representative, Mr. Shields, and this office by January 10, 1994. ...
Ms. McGuire filed a Response by Insurer on behalf of the T.T.C., dated January 7, 1993. It simply addresses the issues raised in Mrs. Ayertey's Application.
2. The Issue
A pre-hearing discussion was held on February 21, 1994. Ms. McGuire submitted that, in addition to the issues raised in Mrs. Ayertey's Application, the arbitration hearing should deal with all of the outstanding disputes between the parties. She argued that it would not be fair to the T.T.C. to allow Mrs. Ayertey to deal with the various issues in separate proceedings, in part because the Insurer is required to pay a fee of $1,000 in order to participate in each arbitration; further, separate proceedings could lead to inconsistent results.
Ms. McGuire also submitted that by not requiring the T.T.C. to pay another fee of $1,000 in response to the second Application for Appointment of an Arbitrator, the Commission treated this matter as a continuation of the original arbitration. It would be inconsistent, therefore, to exclude issues that were included in the original arbitration.
Mr. Shields submitted that the legislation gives the Applicant the choice of whether to proceed to arbitration on any matter. If the Insurer wants to raise another issue and the Applicant does not consent to its inclusion, the Insurer's only option is to apply to court. He submitted that this issue was determined in Rosa DeCicco and State Farm Mutual Automobile Insurance Company, O.I.C. No. A-000277 (December 10, 1991), upheld on appeal, O.I.C. No P-000277 (February 21, 1992) [hereinafter DeCicco].
The preliminary issue to be determined is whether the arbitration hearing should include the following disputes:
1) The supplementary medical and rehabilitation expenses claimed by Mrs. Ayertey, but not paid by the T.T.C.
These disputes were raised in the mediation and were included in Mrs. Ayertey's first Application for Appointment of an Arbitrator. At the previous pre-hearing discussion, the parties agreed that these expenses would be included in the arbitration. In Mrs. Ayertey's current Application for Appointment of an Arbitrator, however, she has not raised any issue about supplementary medical and rehabilitation benefits, under section 6 of the Schedule. Mr. Shields stated that at this time he has no instructions as to whether to proceed with this claim, either through arbitration or in court.
2) The supplementary medical and rehabilitation expenses paid under protest by the T.T.C. that it seeks to recover.
Mrs. Ayertey's entitlement to benefits for expenses related to her care at the Premier Treatment Centre, under section 6 of the Schedule, have been an issue since the mediation. In its original response, the T.T.C. took the position that these expenses were unreasonable. In the first pre-hearing, the acting arbitrator identified one of the issues as the repayment of amounts paid to Premier Treatment Centre after September 13, 1992. As stated above, Mrs. Ayertey's current Application does not raise any issue about supplementary medical or rehabilitation benefits.
3) The taxi expenses of $2,775.40 claimed by Mrs. Ayertey, but not paid by the T.T.C.
This dispute was not mediated or included in the original pre-hearing discussions, as Mrs. Ayertey did not apply for these benefits until October 5, 1993; although the expenses were incurred from July 3, 1992 to September 1992.
3. Analysis and Conclusions
The relevant sections of the Insurance Act provide:
280 (1) Either the insured person or the insurer may refer to a mediator any matter in dispute in respect of the insured person's entitlement to no-fault benefits or in respect of the amount of no-fault benefits to which the insured person is entitled.
(4) The mediator shall enquire into the issues in dispute and attempt to effect a settlement of as many of the issues as possible within the time prescribed in the regulations for the settlement of the type of dispute in question.
281 (1) If mediation fails, the insured person may bring a proceeding in a court of competent jurisdiction or may refer the matter to an arbitrator.
(2) No person may bring a proceeding in any court or refer a matter to arbitration unless mediation has first been sought and has failed.
282 (3) The arbitrator shall determine all issues in dispute and such other issues as the parties may agree.
(emphasis added)
I have considerable sympathy for the position taken by the T.T.C. The goal of providing a speedy and inexpensive dispute resolution process is unlikely to be served by allowing, or requiring, disputes to proceed in a piecemeal fashion.
The meaning of the terms "matter" and "issue" in the Insurance Act is not obvious. In my opinion, one possible interpretation is that the "matter" is simply the package of disputes between the parties at the time of the mediation, and, the "issues" are the specific disputes. This would mean that although only the Applicant can refer a matter to arbitration, if he or she does so, all of the issues raised in the mediation could be raised by either party, plus such other issues as the parties may agree. The use of the same phrase, "issues in dispute", in both sections 280(4) and 282(3), would seem to support this interpretation.
However, there is another possible interpretation as set out in DeCicco. In that case, the Insurer terminated the Applicant's weekly benefits and her care benefits. The Applicant applied for mediation, but her entitlement to weekly benefits and care benefits was not resolved. It was not clear from the Report of Mediator whether Ms. DeCicco's entitlement to benefits for transportation and rehabilitation expenses, under section 6 of the Schedule, had been mediated. It appears, however, that the arbitration proceeded as if mediation had also failed to resolve these disputes. On appeal to the Director, it was specifically agreed that all of the disputes were considered to have been mediated, but not resolved.
Senior Arbitrator Naylor interpreted "matter" as equivalent to benefit category:
The wording and scheme of the statute is therefore best reconciled by construing "the matter" referred to arbitration as a dispute between an insurer and insured over a specific no-fault benefit claimed. The questions that either party raises in relation to an applicant's entitlement to the benefit or to the amount of the benefit comprise the issues.
These questions are "issues in dispute" under s.242d(3) if they have been identified as such in the course of mediation, they remain unresolved, and they are raised by either party to the arbitration. If such issues have not been mediated, however, they are not arbitrable under the terms of s.242d(3) unless both parties consent to their inclusion.
However, the scope of the issues before the arbitrator should not be defined in a narrow and technical way. The authority of the arbitrator extends to anything that reasonably and consequentially flows from the issues that are before her. ...
Senior Arbitrator Naylor concluded, therefore, that the Insurer was not entitled to dispute the Applicant's claim for transportation and rehabilitation expenses, under section 6 of the Schedule, because it represented a new matter that had not been referred to arbitration by the Applicant.
On appeal, the Director of Arbitrations endorsed Senior Arbitrator Naylor's interpretation, and stated:
Whether or not it may be more expeditious for the parties to deal with all of these items in one hearing is not a relevant consideration given the structure and scheme of the Act as a whole and given the necessity of having each section, general or specific, carry with it a coherent and logical meaning.
I conclude that DeCicco stands for the proposition that the Insurer cannot raise a matter (benefit category) that is not included in the Applicant's Application for Appointment of an Arbitrator, even if that matter was included in the mediation, unless the Applicant consents. The Insurer's remedy is to apply to court.
In this case, the T.T.C. is asking to raise a matter that is not included in Mrs. Ayertey's current Application for Appointment of an Arbitrator - her eligibility for benefits under section 6 of the Schedule. The situation, therefore, is very similar to that in DeCicco.
In Chuong Vo and Maplex General Insurance Company, O.I.C. No. A-002777 (October 4, 1993), I took the position that arbitrators are not strictly bound by previous decisions, including appeal decisions. In this case, however, I am not convinced that I should adopt a different approach from that taken by the Director in DeCicco.
First, the appeal decision in DeCicco is written by the Director of Arbitrations, rather than a delegate. Second, the approach taken in DeCicco provides an interpretation of the legislation which responds to a legitimate concern: the Applicant's desire to have some control over the scope of the arbitration hearing. Finally, I note that the Insurance Act gives the Director particular responsibility for developing the practices and procedures for arbitrations:
- 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.
The Director has established a Dispute Resolution Practice Code, which includes the following:
11.2 The Response by Insurer shall be in Form 5.
(c) An insurer shall respond to all issues and other matters raised in the Application for Appointment of an Arbitrator and to the issues set out in the Report of Mediator.
(d) An insurer will not be permitted to raise an issue or other matter not set out in the Response or Report of Mediator except with leave of the arbitrator.
It was submitted on behalf of the T.T.C. that these sections only make sense if the Insurer is allowed to raise disputes in addition to those raised by the Applicant. The decisions in DeCicco suggest that the Insurer may raise additional "issues" that are related to the "matter" referred to arbitration by the Applicant, but cannot raise new "matters". It is not clear, therefore, what the term "other matter" means in the Dispute Resolution Code. I am not convinced, however, that I should depart from the interpretation of the legislation set out in DeCicco on the basis of the Dispute Resolution Practice Code.
The remaining question is whether it makes any difference that Mrs. Ayertey's original application for arbitration included her eligibility for supplementary medical and rehabilitation benefits, under section 6 of the Schedule. I am not persuaded that it does.
Mrs. Ayertey was allowed to withdraw her application for arbitration, without conditions. She submitted a new Application for Appointment of an Arbitrator, and filed her fee. Although the Commission re-opened the old file, it is my view that the new application governs the present proceedings. This is so, despite the fact that the T.T.C. was not required to pay an additional fee.
I conclude, therefore, that Mrs. Ayertey can choose to proceed to arbitration on only some of the matters dealt with in the mediation. However, it is my view that the fact that she could have agreed to include additional matters may well be relevant, if she later applies for arbitration of those matters. The awarding of expenses to applicants, under section 282(11) of the Insurance Act, is discretionary. I would expect that an arbitrator would be very reluctant to award expenses for multiple hearings in the absence of a compelling reason for the matters to be heard separately. Depending on the particular facts, the subsequent proceeding might be an abuse of process, under section 282(11.2) of the Insurance Act.
Order:
Mrs. Ayertey's eligibility for supplementary medical and rehabilitation benefits, under section 6 of the Schedule, is not an issue in this arbitration. The issues to be determined are:
Is Mrs. Ayertey entitled to weekly income benefits, under section 12 of the Schedule, for any period from September 14, 1992 to February 28, 1993?
Is Mrs. Ayertey entitled to interest on any amounts that are found to be owing, according to section 24 of the Schedule?
Should the T.T.C. be required to pay a special award, under section 282(10) of the Insurance Act, because it unreasonably delayed or withheld the payment of benefits?
Should Mrs. Ayertey be awarded her expenses related to the arbitration hearing, according to section 282(11) of the Insurance Act?
April 5, 1994
David R. Draper
Arbitrator
Date