Neutral Citation: 1997 ONICDRG 18

OIC A95-000267

ONTARIO INSURANCE COMMISSION

BETWEEN:

LINDA HARRIS

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON PRELIMINARY ISSUES

Issues:

The Applicant, Linda Harris, was injured in a motor vehicle accident on March 26, 1991. She also claims that she was injured in a second motor vehicle accident on December 25, 1991. She applied for and received statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672.¹ Royal paid weekly benefits and primary caregiver benefits under section 13 of the Schedule between March 31, 1991 and December 25, 1991 and between January 2, 1992 and September 1, 1994, when benefits were terminated. The Applicant claims ongoing weekly benefits, primary caregiver benefits, and rehabilitation benefits. The parties were unable to resolve their disputes through mediation and Ms. Harris applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant precluded from proceeding to arbitration with respect to the March 26, 1991 motor vehicle accident because:

(i) the parties reached a full and final settlement of the issues on or after the mediation proceedings in May 1992?;

(ii) the Applicant's application for mediation and arbitration were filed more than two years after the Insurer terminated benefits?; or

(iii) the Applicant has elected to pursue her claims for statutory accident benefits by way of civil proceeding?

2. With respect to the second motor vehicle accident on December 25, 1991:

(i) was the Applicant an occupant of the vehicle involved in the accident?;

(ii) if the answer to question 2(i) is "no," is the Insurer entitled to repayment of benefits paid between January 2, 1992 and September 1, 1994?;

(iii) if the answer to question 2(i) is "no," is the Insurer entitled to an award of up to $2,000 under section 282(11.2) of the Act?

Ms. Harris also claims her expenses incurred in the proceeding.

Result:

1. With respect to the motor vehicle accident of May 26, 1991:

(i) the parties did not settle their dispute;

(ii) the application for arbitration is not time-barred; and

(iii) the Applicant is not precluded from arbitration because of her civil proceeding.

2. With respect to the motor vehicle accident of December 25, 1991:

(i) The Applicant was not involved in the accident.

(ii) My decision as to whether the Insurer is entitled to repayment of benefits paid after December 25, 1991 is reserved to the hearing on the remaining issues, which is scheduled for February 24, 25, 26 and 27, 1997.

(iii) The Insurer is entitled to an award of $1,000 under section 282(11.2) of the Act. If the matter proceeds, this award must be paid before the hearing resumes.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on December 2 and 3, 1996.

Present at the Hearing:

Applicant:

Linda Harris

Ms. Harris's

Wayne T. Jackson

Representative:

Royal's

Helen Hall

Representative

Barrister and Solicitor

(March 26, 1991 accident)

Royal's

Vance H. Cooper

Representative:

Barrister and Solicitor

(December 25, 1991 accident)

Witnesses:

The Applicant, Ms. Linda Harris, and her mother, Ms. Cynthia Marchan, testified on the Applicant's behalf. Amy Lam and Darren Glickman, the drivers of the vehicles involved in the second accident, testified on behalf of the Insurer with respect to the second accident.

Exhibits:

Exhibit 1

Covering letter dated June 2, 1993, enclosed with Report of Mediator

Exhibit 2

April 20, 1993 Notice of Mediation meeting on May 18, 1993

Exhibit 3

Covering letter dated October 2, 1995, enclosed with Report of Mediator

Exhibit 4

Letter of April 11, 1995 from Carolynne Jardine to Mr. Stan Pasternak

Exhibit 5

Insurer's Document Brief

Exhibit 6

Letter of September 6, 1991 from Joel Freedman to William Tam

Exhibit 7

Letter of September 20, 1991 from Mr. Freedman to Mr. Tam

Exhibit 8

Letter of October 4, 1991 from Karen Teare to Mr. Freedman

Exhibit 9

Letter of December 9, 1991 from Anna Marsh to Mr. Freedman

I invited the parties to file written submissions with respect to the application of the time limit to claims for ongoing weekly benefits. I did not receive submissions from the Applicant. I received submissions from Ms. Hall dated December 6, 1996 and December 13, 1996. Because of my findings on other issues, I did not find it necessary to consider this issue.

Evidence and Findings:

Did the parties settle the issues arising out of the accident of March 26, 1991?

Following the accident of March 26, 1991, Royal paid the Applicant weekly benefits of $185 and primary caregiver benefits of $50 per week under section 13 of the Schedule between March 31, 1991 and September 10, 1991, when benefits were terminated based on an Insurer Medical Report by Dr. Barmania. On January 2, 1992, the Applicant applied for mediation of the dispute. Under the heading "Issues Resolved," the May 27, 1992 Report of Mediator indicated that additional weekly benefits and primary caregiver benefits were paid to December 25, 1991. Some other issues remained in dispute, but they were resolved shortly after mediation ended.

In a letter dated June 12, 1992 addressed to the Mediator, the Insurer's Claims Consultant confirmed that "this matter is now finalized." The Confirmation of Settlement form signed by the Insurer was enclosed. There was no evidence that this letter was sent to the Applicant. In its Assessment of Claim form dated April 21, 1993, the Insurer reaffirmed its position that the matter was resolved in June 1992.

These documents were generated by the Insurer and prepared after mediation was completed. They may represent the Insurer's understanding of what happened at mediation, but I find them to be of little assistance in determining whether the Applicant agreed that all issues were resolved.

The Applicant testified that she did not sign a Confirmation of Settlement, and none was filed in evidence by the Insurer. The Report of Mediator does not indicate that the parties' agreement about weekly benefits and primary caregiver benefits was in final settlement of the Applicant's claim. The Applicant did not sign a Release or Minutes of Settlement.

When the mediation took place in early 1992, the Applicant had already begun receiving benefits in connection with her claims arising out of the second accident, which occurred on December 25, 1991. The Applicant testified that she was content with the outcome of mediation because she was still receiving benefits.

On behalf of the Insurer, Ms. Hall and Mr. Cooper advised that the Insurer's Special Lines branch handled the Applicant's claims arising out of the first accident, and transferred responsibility for the Applicant to the Insurer's Facility branch, which was responsible for claims arising out of the second accident. It appears that in May 1992 there was some confusion about which benefits flowed from which accident and for what period.

In a subsequent Report of Mediator a year after the first mediation, the same Mediator stated that "[d]iscussion clarified the issue of which policy and branch of the Insurer's company was responsible for responding to claims for services provided after December 25, 1991." The Insurer submitted that the Mediator's conclusion in his 1993 report that "[t]his issue is, therefore, settled" confirms that there was no outstanding issue arising out of the March 26, 1991 accident. I do not agree. The Mediator's comments are contained in a paragraph dealing with supplementary medical benefits only.

In any event, a Report of Mediator is not determinative of whether a settlement was reached. Rather, it reflects the opinion of the Mediator. That opinion is to be given considerable weight, given that the Report of Mediator is prepared by a neutral third party, contemporaneously with the events reported, and in the normal course of business. However, in determining whether a settlement was reached, an arbitrator must consider all the circumstances. In this case, the May 27, 1992 Report of Mediator does not clearly reflect a final settlement of the issues before me, and the parties' conduct is consistent with their dealing with weekly benefits and primary caregiver benefits after December 25, 1991 as issues arising out of the second accident. It is trite to say that the onus of proof is on the party relying on an alleged settlement of the issues in dispute. In this case, considering the context of the mediation discussions in early 1992, 6 and the absence of any confirming documentation signed by the Applicant, I am not satisfied that the Applicant settled her weekly benefit and primary caregiver benefit at that time.

The time limit issue

The Applicant commenced this proceeding by filing an Application for Appointment of an Arbitrator on August 16, 1995. The Insurer submitted that it gave notice of its refusal to pay the benefits claimed by sending the Applicant an Assessment of Claim form in August 1991² and a letter dated September 4, 1991. If time began to run in August or September 1991, the Applicant's application for arbitration was commenced well beyond the two-year limitation period set out in section 281(5) of the Act and section 26 of the Schedule.

In Emilia Zeppieri, ³Senior Arbitrator Susan Naylor described the "two-step process" to be followed in determining whether a proceeding is time-barred:

First, it is necessary to ask whether, and when, there was a refusal to pay benefits; and second, whether the insurer may rely on a limitation period that runs from the date of the refusal.

In determining whether and when the Insurer refused to pay benefits, Senior Arbitrator Naylor made the following comments:

The refusal relied on must be clear and unequivocal, and must be communicated to the applicant. Section 24(8) of the regulations indicates that the notice must be in writing, and provide reasons for the refusal. The onus is on the insurer to establish that an applicant has received the proper notice.

I agree with this approach, which has been followed in subsequent arbitration decisions.

The body of the September 4, 1991 letter from the Insurer's adjusters is as follows:

It was Dr. Barmania's opinion when he examined you on August 9, 1991 that you were able to return to your pre-accident activities. The Royal Insurance Company is therefore paying your disability benefits up to and including September 10, 1991 and terminating them after that date. For your information, I enclose a copy of Dr. Barmania's report. If you disagree with this decision the Royal Insurance Company will require a written report from Dr. Mango [sic] who I understand is your general practioner [sic] at the Women's College Hospital.

On October 4, 1991, the Insurer responded to a request from Joel Freedman, the Applicant's then counsel, for the Insurer's reasons for terminating benefits. Karen Teare, Claims Representative, described the current status of the matter as follows:

...we were awaiting a medical report from Dr. Mingo to further evaluate her claim as she was dissatisfied with the independent medical report [of Dr. Barmania]. We advised your client once this was received we would review and obtain another independent medical, if warranted, from a different doctor.

The medical report from Dr. Mingo has recently been received, however it is rather vague and fails to explain why Ms. Harris is "unable to carry out activities...". Therefore, we would like to arrange for an independent medical examination with Dr. Seiden ....

Once this report is received, and we find that she is in fact still unable to perform her usual "activities", we will resume her accident benefits coverage with a back dated payment.

On December 9, 1991, Anna Marsh, Claims Representative, sent the Applicant a copy of the November 1, 1991 report of Dr. Evans, who had examined the Applicant at the Insurer's request. Ms. Marsh summarized Dr. Evans' conclusions, as follows:

As advised by Dr. Evans, her assessment by him does not support any reinstatement of weekly indemnity benefits. Dr. Evans did take the time to enrol and arrange for Linda Harris to engage in physiotherapy with Physiotherapy Associates at 20 Wynford Drive. He notes that this treatment should be most helpful to her and, in fact, recommends that we forward a copy of his report to her treating physicians, Dr. Mingas or Dr. Becker. I would ask that you forward this report along accordingly.

Should you have any questions regarding the above, please feel free to contact the undersigned.

On January 2, 1992, a week after the second accident, Mr. Darren Glickman, the Applicant's then boyfriend, filed an Application for Appointment of a Mediator with respect to the Insurer's termination of the Applicant's benefits on September 10, 1991. When the Application was filed, the Applicant had not received any benefits for almost four months. If the second accident had not occurred, I would have found that by December 9, 1991 at the latest, the Insurer had given effective notice that benefits arising out of the accident of March 26, 1991 were terminated.

However, the Applicant began receiving benefits again on January 2, 1992 in connection with the accident of December 25, 1991. She testified that her understanding of the Insurer's approach at mediation was that her ongoing benefits would now "flow from" the second accident. I have the impression that both parties defined the issue at mediation in early 1992 as a four-month gap in benefits (between September 10, 1991 and January 2, 1992), as opposed to termination of benefits.

The onus is on the Insurer to prove that the application for arbitration is out of time. Not until April 11, 1995, when Carolynne Jardine, Claims Manager, wrote Mr. Stan Pasternak, the Applicant's then solicitor, did the Insurer clearly set out the position it put forward in this hearing as to which benefits flowed from which accident. I find that time began to pass with that letter. As a result, the Applicant is not barred from proceeding.

The civil proceeding

Section 281(1) of the Act says that if mediation fails, the insured person "may bring a proceeding in a court of competent jurisdiction or may refer the matter to an arbitrator." An insured person may not proceed before both a court and an arbitrator with respect to the same issue. The Insurer submitted that this is what the Applicant is attempting to do in this case.

On April 7, 1993, the Applicant, through her then counsel, Janet Curry, filed a Notice of Claim with respect to the accident of March 26, 1991. This was followed on May 7, 1993 by a Statement of Claim alleging that the Insurer failed to provide the Applicant with timely physiotherapy which has resulted in her suffering chronic pain. General damages for pain and suffering and special damages for long term care and future loss of income were claimed. The Insurer's Statement of Defence and Jury Notice were dated September 22, 1993. On July 26, 1996, Master Cork (Ont.Gen.Div.) granted the Insurer's motion that the claim be dismissed. Mr. Jackson's motion to intervene and to set aside the Order of Master Cork was dismissed by Justice O'Brien on September 6, 1996. The Applicant appealed Justice O'Brien's order by Notice of Appeal dated September 6, 1996. The Appeal was dismissed for failure to perfect on October 24, 1996. The Applicant advised me at the hearing that she intends to perfect the appeal by December 20, 1996.

On April 8, 1993, the day after filing the Notice of Claim, the Applicant filed an Application for Appointment of a Mediator with respect to the same issues identified in the Statement of Claim - physiotherapy and long term care. There is no claim for physiotherapy or other rehabilitation benefits before me in this proceeding, which deals only with the Applicant's entitlement to weekly income benefits and primary caregiver benefits after December 25, 1991.⁴

I do not accept that the Applicant is precluded from proceeding to arbitration because of her ongoing civil proceeding, which does not include a claim for weekly income or non-income benefits. Indeed, it is not clear to me that the Applicant's pleadings set out a valid cause of action. Moreover, I received no information about the reasons for Master Cork's and Justice O'Brien's dismissal of the Applicant's claim, except that the Applicant appears not to have shown up in court for the motion before Master Cork.

I am not satisfied that the civil proceeding bars the Applicant from proceeding to arbitration with respect to the issues before me.

Was the Applicant involved in an accident on December 25, 1991?

The Applicant testified that she was the front-seat passenger in a vehicle driven by Darren Glickman when the vehicle spun out of control on ice and ran into a parked vehicle at around 5:00 or 6:00 p.m. on Christmas Day, 1991. At the time of the impact, Ms. Amy Lam was sitting in the driver's seat of her parked vehicle, warming it up. Mr. Glickman and Ms. Lam testified that the Applicant was not an occupant of the Glickman car at the time of the accident. As there is no other evidence identifying the occupants of the Glickman car at the time of the accident, this case depends on my assessment of the credibility of the three witnesses who testified about the accident.

The Applicant and Mr. Glickman agreed about the events leading up to the accident. At the time of the accident, the Applicant, her 6-year-old daughter and Mr. Glickman lived together in an apartment on Shuter Street, an east-west street in downtown Toronto. After spending Christmas day at home, they planned to join the Applicant's family for Christmas dinner. The Applicant and Mr. Glickman agreed that Mr. Glickman's car was parked about 5 or 10 minutes away in a parking lot off Seaton Street, which runs one way northbound between Shuter Street and Dundas Street.

There is also no dispute that Ms. Lam's car was parked on the west side of Seaton Street at the time of the accident, and that the Glickman car struck the right front (passenger) side of the Lam car, roughly forming a "T," but with the major damage to the left front (driver's) side of the Glickman car. The left front bumper of the Glickman car came off, and the right front fender and passenger door of the Lam car were damaged.

The Applicant testified that she and Mr. Glickman and her daughter set out together around 5:00 or 6:00 p.m. to pick up her mother, who lived in the Dundas and Bloor area. Shortly after setting off northbound on Seaton, they skidded on some ice and collided with the passenger side of a car (the Lam car) parked on the west side of the street. According to the Applicant, she struck her head on the windshield on impact, and yelled "I'm not going through this again" (referring to her previous accident in March 1991, when Mr. Glickman was the driver). Mr. Glickman replied that he was "sorry." The Applicant testified that after one or two minutes, she left the car with her daughter, "because of the way I was treated last time" and because "I just wanted out of there." Her coat was ripped and she was crying, and her daughter was "shaken up." When she left the scene, Mr. Glickman was still in the car. The Applicant testified that her phone was ringing when she got home; it was Mr. Glickman calling to tell her to return to the scene because the driver of the other car had seen her. The Applicant testified that she had not seen Ms. Lam before leaving the scene of the accident.

The Applicant testified that after calling her mother, she returned to the Glickman car to wait for the police. By that time, Mr. Glickman had parked his car on the west side of the street, just north of Ms. Lam's car. The Applicant now saw Ms. Lam standing near her car, but she did not speak to her. The Applicant and her daughter laid down in the Glickman car, which was running and warm, for about two and a half hours waiting for the police. The Applicant testified that the police officer did not speak to her or ask her name, though by that time she was sitting up in the front passenger seat watching the proceedings.

Mr. Glickman testified that he left the apartment alone, planning to warm up the car before driving back home to pick up the Applicant and her daughter. He lost control of the car as he was attempting a right turn off Seaton onto a laneway that would take him back to the apartment, which was east of Seaton. Mr. Glickman testified that he got out of the car within seconds of the impact, and that Ms. Lam got out of her car immediately afterwards. They inspected the damage together. Mr. Glickman admitted responsibility for the accident, and Ms. Lam left to call the police. Mr. Glickman had moved his car by the time Ms. Lam returned with her husband. At around this time, about 30-40 minutes after the accident, Mr. Glickman saw the Applicant and her daughter walking northbound on Seaton. She asked him what happened, and got into the car to wait for the police.

Ms. Lam testified that she got out of her car immediately after the accident and inspected the damage with Mr. Glickman. She testified that the Glickman car's windshield was clear, and she could see that there was no one in the car. She returned to her home nearby to call the police, and returned accompanied by her husband. By this time, Mr. Glickman had moved his car to the curb in front of hers. Ms. Lam did not notice anyone walking down Seaton Street. However, after a while, Mr. Glickman approached a nearby house and came back to the scene accompanied by a woman. Ms. Lam was unable to identify this person as the Applicant.

In assessing the credibility of the Applicant, Mr. Glickman, and Ms. Lam, I considered what, if any interest, each witness has in the outcome of this proceeding. The Applicant is clearly not a disinterested witness. She has received benefits of $235 a week in the three years since the December 25, 1991 accident, and claims ongoing benefits. The Insurer now seeks repayment of these benefits on the basis that they were obtained by fraud.

Mr. Glickman also received benefits from the Insurer arising out of the December 25, 1991 accident, but he has now resolved his claims with the Insurer. He was charged after the accident with making a dangerous right turn. Mr. Glickman and the Applicant agreed in their testimony that Mr. Glickman was acquitted at his trial some four or five months after the accident. The Applicant testified that she attended at the trial with Mr. Glickman, and was prepared to testify, but was not required to do so because the judge made her decision after hearing from the police officer and Mr. Glickman. Mr. Glickman's evidence was that the Applicant did testify at his trial, although he hesitated in giving this answer. According to Mr. Glickman, his testimony at his trial was that the Applicant had been in the car at the time of the accident. No record of the proceeding was led into evidence.

I find that the discrepancy between Mr. Glickman's reported testimony at his trial and his evidence in this proceeding undermines his credibility. In addition, although I heard no evidence about when or on what terms Mr. Glickman and the Applicant ended their relationship, there may be some bad feeling between them. Asked to explain why Mr. Glickman would misrepresent the facts in his testimony before me, the Applicant said, "Darren Glickman has trouble with the truth." She also indicated that there had been some dispute between Mr. Glickman and her mother concerning Mr. Glickman's car, which apparently was leased with the assistance of the Applicant's mother.

Mr. Glickman explained that he initially supported the Applicant's version of these events because he felt that this would help her get the treatment she needed as a result of her injuries in the first accident, but he later came to believe "it had gone on too long." I find this a plausible explanation, especially considering that the December 25, 1991 accident occurred just a few weeks after the Insurer's December 9, 1991 letter indicating that Dr. Evans did not support reinstatement of weekly benefits.

Ms. Lam knew neither the Applicant nor Mr. Glickman before the accident, and she has no interest in the outcome of this proceeding. On behalf of the Applicant, Mr. Jackson expressed some concern about Ms. Lam's ability to testify in English. Although Ms. Lam's English was marginal, and many questions had to be repeated before she understood them, I found her evidence to be clear about the main point - that she did not see the Applicant until she approached the scene some time after the accident.

I prefer Mr. Glickman's testimony, which was corroborated by Ms. Lam on the essential points. In particular, I considered the following issues in the evidence:

• I find Mr. Glickman's testimony that he planned to warm up the car before picking up the Applicant and her daughter more plausible than the Applicant's testimony that she and her young daughter accompanied Mr. Glickman for a walk of about 5 to10 minutes, through dark and icy streets, to a cold car. Moreover, this version of events is consistent with Mr. Glickman's account of his car spinning out of control and "doing a 360" as he tried to turn right, and with his uncontroverted evidence that the charge against him was "unsafe right turn." The Applicant's evidence that the car hit the Lam car, which was parked on the left side of the street, after initially skidding to the right, makes less sense. Mr. Glickman's account of the accident is consistent with his testimony that he was turning right onto a west-bound laneway which would take him back to their apartment.

• I do not accept the Applicant's testimony that Mr. Glickman stayed in the car as long as she was at the scene and that she did not see Ms. Lam until she returned to the scene some 30-40 minutes later. I heard no evidence to suggest that Mr. Glickman and Ms. Lam were too injured to get out of their cars, and there is uncontradicted evidence that Mr. Glickman later moved his car and that he and Ms. Lam stood talking on the sidewalk. In the absence of evidence to the contrary, I accept the evidence of Mr. Glickman and Ms. Lam that they did what most drivers do in this situation: they immediately got out of their cars to inspect the damage and speak to each other.

• The Applicant testified that Ms. Lam may not have seen her because the passenger side of the windshield was covered with snow and ice. I do not accept this evidence, which was contradicted by Ms. Lam and Mr. Glickman, who testified that the entire windshield was clear. I find that Ms. Lam would have been able to see the occupants of the Glickman car from where she stood, a few feet in front of it.

• Ms. Lam's testimony that she saw no one walking down Seaton Street directly contradicts the Applicant's testimony that she and her daughter left the car immediately after the accident. I prefer Ms. Lam's evidence. According to the Applicant, she was crying and her daughter was "shaken up" when they left the car. The Applicant also testified that she saw no one else on the street as she walked home; the street was quiet. In these circumstances, I think Ms. Lam would have heard and seen the Applicant. Moreover, although Ms. Lam’s testimony about the woman coming out of a house on Seaton Street differs from both of the other accounts, it is closer to Mr. Glickman’s account of the Applicant’s arrival on the scene.

Considering all the evidence, I am not satisfied that the Applicant was an occupant of the Glickman car at the time of the accident of December 25, 1991.

Repayment

Section 27(1) of the Schedule states that "a person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud." In this case, I find that the Applicant misrepresented to the Insurer that she and her daughter were occupants of the Glickman car at the time of the accident. This is a serious misrepresentation. However, in the circumstances, I do not order repayment of benefits paid after December 25, 1991 because I am not satisfied that these benefits were paid entirely in connection with the second accident. For the reasons given above, I have the impression that the Insurer may have continued to pay benefits after the second accident without carefully distinguishing the two claims. In order to make a finding as to which, if any, benefits have been overpaid, an Arbitrator will need to hear evidence about the Applicant’s injuries and disability following the first accident, and the Insurer’s adjustment of the Applicant’s claims relating to the period after the second accident. Accordingly, the decision on the Insurer’s request for a repayment order is reserved until the hearing resumes on the remaining issues in dispute arising out of the first accident.

Insurer’s Assessment

Section 282(11.2) of the Act gives an arbitrator discretion to order the Applicant to pay the Insurer an amount up to the amount of the Insurer's arbitration assessment of $2,000 if, in the opinion of the arbitrator, the application for arbitration was "frivolous, vexatious or an abuse of process." Given the Applicant's misrepresentation with respect to the December 25, 1991 accident, I find that her application for arbitration was an abuse of process in so far as it concerned the second accident. The Applicant is ordered to pay the Insurer $1,000 - half of its $2,000 assessment - before February 24, 1997. This order is subject to any final order made by an Arbitrator. This matter may not proceed to hearing until and unless this amount is paid. If the matter does not proceed, the assessment must be paid in any event.

Expenses:

The Applicant's claim for reimbursement of her expenses incurred in the proceeding is reserved to the hearing on the remaining issues.

Order:

1. I find that the Applicant was not involved in a motor vehicle accident on December 25, 1991.

2. The hearing will resume on February 24, 25, 26 and 27, 1997 as scheduled, with respect to issues arising out of the March 26, 1991 accident, the Insurer's claim for repayment of benefits paid after December 25, 1991, the Insurer's assessment and the Applicant's claim for reimbursement of her expenses in this proceeding.

3. The Applicant will pay the Insurer $1,000 by February 24, 1997. If the matter does not proceed, the assessment must be paid in any event.

January 23, 1997

Nancy Makepeace

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2An undated copy of the first page of the two-page form is found at Exhibit 5, Tab 11.
3. 3Zeppieri and Royal Insurance Company (February 17, 1994), OIC A-005237
4. 4The Applicant seeks ongoing benefits after September 1, 1994, when benefits were terminated. The Insurer seeks repayment of benefits paid after December 25, 1991.