Neutral Citation: 1997 ONICDRG 170

OIC A96-001940

BETWEEN:

MOSES ROBERTSON

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

PRELIMINARY DECISION

The Applicant, Moses Robertson, was injured in a motor vehicle accident on September 19, 1995. He applied for and received weekly income replacement benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹

In January 1996, pursuant to subsection 65(1) of the Schedule, Co-operators asked Mr. Robertson to attend at a medical examination which it had arranged. The Applicant did not attend at the examination. He contends that he received late notice of this appointment. Co-operators thereupon terminated payment of weekly income replacement benefits, pursuant to subsection 65(5.1) of the Schedule. A further insurer's medical examination arranged for March 1996, was also not attended by the Applicant. The reason for the second failure to attend is disputed. The Applicant subsequently applied for mediation by letter dated June 4, 1996, disputing both the termination and the calculation of his income replacement benefits. The Co-operators has taken the position since mediation that pursuant to subsection 71.1(c) of the Schedule, Mr. Robertson cannot proceed to mediation as he has not reasonably made himself available for the Insurer's medical examinations. The Mediator's report was issued September 30, 1996. The substantive part of the report is reproduced at Appendix "A." In November 1996, Mr. Robertson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act") on the issue of income replacement benefits.

The Insurer now seeks to dismiss Mr. Robertson's Application for Arbitration, and requests that its $2,000.00 assessment fee be paid either by the Applicant on the basis that his application was an abuse of process, or by the Ontario Insurance Commission because of lack of jurisdiction. In the alternative, the Insurer asks that this arbitration proceeding be stayed, pending the Applicant's attendance at the Insurer's medical examination. The ground for this motion is that mediation has not been sought, or has not been held, in respect of any issue in dispute between the parties. The Insurer also raised, but did not press, its further claim for payment of its expenses incurred in respect of this arbitration proceeding.

The Applicant submits that mediation has been held in respect of both the non-attendance issue, and in respect of the income replacement entitlement and quantum issues, and that therefore these issues can proceed through arbitration.

The issues in this preliminary issue hearing are therefore restricted to:

Should the Application for Arbitration herein be dismissed on the ground that there are no issues referred to arbitration which have been mediated?
If the answer to the first question is in the affirmative, on what, if any, terms or conditions should the Application for Arbitration be dismissed?
If the answer to the first question is in the negative, should the arbitration proceeding be stayed, and if so on what, if any, terms or conditions?

Mr. Robertson may proceed to an arbitration hearing on the issue of his non-attendance at the Insurer's medical examinations, and if successful on that preliminary issue, he may proceed to a further hearing on the income replacement entitlement and quantum issues.
The arbitration hearing is not stayed.

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on Wednesday, September 3, 1997, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Mr. Robertson's Representative:

Carolyn V. Amendola Barrister and Solicitor

Co-operators' Representative:

Stephen M. Malach Barrister and Solicitor

Documents before the Arbitrator:

Co-operators' written submissions and Document Brief.
Mr. Robertson's written submissions.
Mr. Robertson's Document Brief.

Evidence and Findings:

Subsection 281(2) of the Act requires mediation to have been sought and to have failed, before the issues in dispute may be referred to arbitration.

The Insurer submits that as the mediator's report does not enumerate any substantive issue as having been mediated, mediation did not fail in respect of any such issues. The Insurer further submits that as Mr. Robertson's Application for Mediation did include the issue of his non-attendance at the Insurer's medical examinations, mediation was not sought and hence did fail in respect of this issue. The Insurer further notes that Mr. Robertson did not specifically set out the issue of non-attendance in his Application for Arbitration, and argues that the non-attendance issue which he now raises is contrived so as to keep this arbitration proceeding alive.

The Applicant notes that the non-attendance issue is specifically noted in the mediator's report, and that the income replacement issues were raised in his Application for Mediation, and are referred to in the body of the Mediator's report.

The clear purpose of mediation under the Act is to facilitate dispute resolution. It is not the purpose of mediation to impede dispute resolution by adding pro forma steps to address technical minutia.

It is quite clear from her September 30, 1996 report that the mediator concluded that mediation of the non-attendance issue had failed. The fact that the Applicant did not specifically include this issue in his Application for Mediation does not detract from the fact that mediation on weekly income replacement benefits entitlement amongst other issues had been sought, that the non-attendance issue was raised at mediation by the Insurer as it naturally followed from the Applicant's entitlement claim, and that the positions of the parties were canvassed. Subsection 280(4) of the Act states that:

(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.

It would be contrary to both the spirit and the letter of the legislation, to require the mediator to enquire into the issues in dispute, yet after having done so and having determined that there was a further genuine issue in dispute arising from the issues enumerated in the application for mediation, to require a further application to be made in respect of that issue (with resulting delay and added expense), because the issue was not specifically set out in the initial application.

In this case, I find that the issue of the Applicant's failure to attend at the Insurer's medical examination flows directly and consequentially from the income replacement entitlement issue raised in Mr. Robertson's Application for Mediation, and for that reason alone, need not be the subject matter of another mediation. I rely on my authority under subsection 282(3) of the Act and determine that the non-attendance issue, although raised by the Insurer at mediation, should be included in this arbitration proceeding.

The substantive income replacement issues are not separately set out as an "issue remaining in dispute" in the mediator's report. However, mediation on the income replacement issues of quantum and entitlement was clearly sought in Mr. Robertson's Application for Mediation. Indeed, the mediator confirms that Mr. Robertson sought mediation "with regard to his income replacement benefit."

The failure of the mediator to specifically note that these issues remained in dispute does not in this particular case detract from the fact that there has been compliance with the requirements that mediation has both been sought and has failed. Subsection 280(7) of the Act specifically states that mediation has failed when the mediator has given notice to the parties that in his or her opinion the mediation will fail, or, the prescribed or agreed time for mediation has expired and no settlement has been reached. In this case, the mediator noted that the 60 day period allowed for mediation ran from August 1, 1996 to September 30, 1996. I received no evidence that the parties agreed to extend the 60 day time period. The Application for Arbitration was filed with the Ontario Insurance Commission on December 6, 1996, well after the expiry of mediation.

The Insurer sought to have me determine, based on the mediator's brief reference to the income replacement issues, that mediation did not actually occur regarding these issues. I am not prepared to make such an assumption in this case, based solely on the rather ambiguous remarks of the mediator.

I therefore firstly find that the non-attendance issue may proceed to a preliminary issue hearing. The question of whether this arbitration proceeding should be stayed or dismissed because of non-attendance, must be left to that hearing. I further find that Mr. Robertson may also proceed to arbitration on the income replacement entitlement and quantum issues, subject to any ruling of the arbitrator at the further preliminary hearing.

Order:

Mr. Robertson may proceed to an arbitration hearing on the issue of his non-attendance at the Insurer's medical examinations, and if successful on that preliminary issue, he may proceed to a further hearing on the income replacement entitlement and quantum issues.

September 15, 1997

Lawrence Blackman Arbitrator

Date

Appendix "A"

ISSUES REMAINING IN DISPUTE:

I have concluded that the following issues remain in dispute:

Issue:

Other/ Section 71.1

Last Offer: $0.00

Details:

Insurer Examination/ Failure to Attend

Mr. Robertson was involved in a motor vehicle accident on September 19, 1995. He received income replacement benefits from Cooperators General Insurance Company ("Cooperators") in the amount of $148.50 from September 26, 1995 until January 24, 1996, pursuant to Part 2 of the Statutory Accidents Benefits Schedule -- Accidents After January 1, 1994 ("SABS").

Mr. Robertson brought an application for mediation with regard to his income replacement benefit and other accident benefits to which he claimed entitlement under the SABS.

Cooperators claimed that Mr. Robertson ought not to have commenced mediation proceedings pursuant to section 71.1 because he unreasonably failed to attend two scheduled insurer examinations, first on January 24, 1996 and again on March 18, 1996. Mr. Robertson claimed that his failure to attend the examinations was reasonable.

Cooperators and Mr. Robertson did not resolve this issue at mediation.

[Signed]

30/9/96

Signature of Mediator