Neutral Citation: 1994 ONICDRG 92
File No. A-006212
ONTARIO INSURANCE COMMISSION
BETWEEN:
ABDUL BAPOO
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Abdul Bapoo, was injured in a motor vehicle accident on November 17, 1992. Mr. Bapoo applied for statutory accident benefits from Co-operators General Insurance Company (Co-operators), payable under Ontario Regulation 6721. Mr. Bapoo did not agree with Co-operators about payment of his accident benefits. The parties' attempts to resolve their dispute through mediation were unsuccessful, and Mr. Bapoo filed a Statement of Claim against Co-operators on December 9, 1993 in Ontario Court, General Division.
On July 5, 1994, Mr. Bapoo applied to the Ontario Insurance Commission, requesting that an arbitrator determine the interest on his weekly benefits, and also grant him a special award and his expenses of the arbitration. Co-operators maintains that an arbitrator does not have jurisdiction to hear the dispute.
At the commencement of the September 19, 1994 pre-hearing discussion, the parties agreed that the jurisdiction to hear Mr. Bapoo's claim should be decided by me, Arbitrator Fred Sampliner. The parties made submissions.
Mr. Bapoo's Court Claim:
The Statement of Claim filed in the Court by Mr. Bapoo's lawyer on December 16, 1993, asks for:
A declaration that Mr. Bapoo is entitled to weekly income benefits from November 17, 1992 to date, and that the amount of his weekly benefits should be calculated at 80% of his gross weekly wages, less his net after tax disability benefits.
A declaration that he is entitled to receive supplementary medical, rehabilitation and care benefits.
Other damages arising from the calculation of his weekly benefits.
Exemplary or punitive damages.
Prejudgment interest.
Costs of the court action.
Section 281(1) of the Insurance Act provides:
If mediation fails, the insured person may bring a proceeding in a court of competent jurisdiction or may refer the matter to an arbitrator.
I find that on the date he filed his court action, Mr. Bapoo elected to have the dispute about his accident benefits adjudicated through the court system. None of the disputed matters are before the Commission.
Special Award:
Section 282(10) empowers an arbitrator to make a special award:
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
The authority to make a special award is therefore entirely dependant upon whether the arbitrator grants benefits. However, Mr. Bapoo's accident benefit claims are the subject of a Court action, and he has not applied for arbitration of these claims. Suffice it to say, since the decision of Senior Arbitrator Naylor in Lawrence Whitney and the Co-operators General Insurance Company, March 31, 1993, OIC File No. A-001005 (under appeal), arbitrators have consistently held that unless benefits are awarded, there is no authority under section 282(10) to grant a special award. I find that Mr. Bapoo's claim for a special award cannot be maintained in arbitration in the absence of a substantive claim for benefits.
Interest:
By the same reasoning, Mr. Bapoo's claim for interest on his benefits cannot be dealt with in this forum. Section 24 of the Schedule provides that interest is payable by the insurer on overdue benefits, but Mr. Bapoo claims benefits and prejudgment interest in his lawsuit. With these issues pending in court, an arbitrator has no jurisdiction. I am confident that Mr. Bapoo's claim for prejudgment interest will be determined by the Court, in accordance with section 24, along with his accident benefits claims.
Expenses:
Mr. Bapoo requested an award of his arbitration expenses. He was not represented in this proceeding, and his expenses will be nominal. Regardless of the amount, it is the arbitrator's discretion to decide whether the award of expenses is appropriate.
Mr. Bapoo's written and oral submissions indicate to me that he is both educated and articulate. He was familiar with the Insurance Act and the Schedule. Nothing Mr. Bapoo submitted demonstrates that an arbitrator has any jurisdiction to hear his claims for a special award and interest on benefits. Under these circumstances, I do not think it is appropriate to award Mr. Bapoo his expenses.
On the other hand, Mr. Bapoo agreed to have an arbitrator determine the controversy at the first opportunity, before either side expended a great deal in preparation. Although his claims are without merit, Mr. Bapoo's agreement to have the claim heard early on convinces me that his application for arbitration was not frivolous, vexatious or an abuse of process. Thus, I decline to make an award of expenses against Mr. Bapoo.
Order:
Mr. Bapoo may not proceed to arbitration.
Mr. Bapoo is not entitled to his expenses
October 3, 1994
Fred B. Sampliner
Arbitrator
Date