Neutral Citation: 1997 ONICDRG 96

OIC A-009132

BETWEEN:

FERNANDA OLEIRO

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY OF CANADA

Insurer

SUPPLEMENTARY DECISION

In my decision dated September 13, 1996, I ordered Mrs. Oleiro to repay to Commercial Union Assurance Company of Canada ("Commercial Union") the weekly benefits and payments for physiotherapy treatments that she had received after March 16, 1992. In my decision, however, I did not set out the exact amounts that Mrs. Oleiro was required to repay.

In November 1996, I received a letter from Commercial Union advising me that it wished to file my decision with the Ontario Court (General Division), so that it could be enforced as if it were an order of the Court. Commercial Union advised that the Sheriff would not enforce my decision because it did not include the exact amounts that Mrs. Oleiro was required to pay. Commercial Union advised that it had therefore proceeded to calculate the repayment amounts. In its letter, Commercial Union set out the repayment amounts and enclosed a Schedule indicating how it had arrived at these amounts. Commercial Union asked me to include these amounts in my decision.

Before issuing the order requested by Commercial Union, I asked an Ontario Insurance Commission case administrator to contact Mrs. Oleiro to determine whether she disputed the amounts. Mrs. Oleiro indicated that she did. I, therefore, reconvened the hearing at the offices of the Ontario Insurance Commission in North York, Ontario on April 24, 1997, to deal solely with the calculation of the repayment amounts. Mrs. Oleiro participated, represented by Mr. Antonio F. Azevedo. Commercial Union was represented by Mr. Walter Scodeller.

At the hearing, however, Mrs. Oleiro did not dispute Commercial Union's calculations or the amounts that Commercial Union claimed were owing to it pursuant to my decision. Instead, she requested that the hearing be reopened to consider whether her family physician, Dr. Nestor Fernandez, and/or the physiotherapy clinics where she attended for treatment after March 16, 1992, should be required to repay to Commercial Union payments they received for physiotherapy treatments provided to her after that date.

Therefore, the issue I must decide is:

Should the hearing be reopened to consider the issue raised by Mrs. Oleiro?

The hearing will not be reopened to consider the issue raised by Mrs. Oleiro.

The Arbitration Order setting out the exact repayment amounts in respect of weekly benefits and payments for physiotherapy treatments is attached.

Exhibits:[^1]

Only one exhibit was filed: Exhibit A - Productions Brief of Commercial Union

Reasons for Decision:

The physiotherapy clinics where Mrs. Oleiro attended for physiotherapy after March 16, 1992 were the Bloor Christie Physiotherapy Clinic, Bloor Borden Physiotherapy Clinic and Annex Physiotherapy & Rehabilitation. Almost all of the payments that were made by Commercial Union for Mrs. Oleiro's physiotherapy treatments after March 16, 1992 were made directly to the clinics. Mrs. Oleiro relied on the following findings in my decision, in support of her position that Dr. Fernandez and/or the physiotherapy clinics, and not herself, should be required to repay the monies they received for physiotherapy treatments provided to Mrs. Oleiro:

♦ that Mrs. Oleiro suffered from psychiatric and cognitive problems before the accident.

♦ that Mrs. Oleiro received physiotherapy treatments at these physiotherapy clinics at the request of Dr. Fernandez.

♦ that the Bloor Christie Physiotherapy Clinic was owned by Dr. Fernandez's wife, that Bloor Borden Physiotherapy Clinic was owned by Dr. Fernandez's father and that Annex Physiotherapy & Rehabilitation was owned by Dr. Fernandez's mother.

♦ that payments for physiotherapy treatments after March 16, 1992 were made by Commercial Union as a result of misrepresentations made by Mrs. Oleiro and Dr. Fernandez.

Mrs. Oleiro submitted that Dr. Fernandez prescribed the treatments. She submitted that she was emotionally vulnerable (because of the psychiatric and cognitive problems she was experiencing) and trusted Dr. Fernandez and, therefore, followed his instructions. She submitted that in these circumstances, and also because I had found that the payments for physiotherapy treatments were made as a result of misrepresentations by both her and Dr. Fernandez, it was unfair that she should be "saddled with the entire burden" of repaying the amounts that Commercial Union paid to the physiotherapy clinics. She submitted that Dr. Fernandez and the physiotherapy clinics (presumably because of their connection with Dr. Fernandez) should not be able "to get off scot free."

Before I can consider whether Dr. Fernandez and/or the physiotherapy clinics should be required to repay to Commercial Union payments they received for physiotherapy treatments they provided to Mrs. Oleiro after March 16, 1992, I must first consider whether I have the authority to reopen the hearing at this time.

Section 39.1 of the Dispute Resolution Practice Code gives me the discretion to reopen a hearing. However, it says that I only have the discretion to do so before I make a final order disposing of the arbitration. Section 39.1 provides as follows:

39.1 The arbitrator may reopen a hearing at any time before he or she makes a final order disposing of the arbitration.

In this case, I have already made a final decision disposing of the arbitration. The question then is whether I have any power to review and vary or revoke my decision. Section 21 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended ("the SPPA") provides as follows:

21.1 A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order.

21.2(1) A tribunal may, if it considers it advisable, review all or part of its own decision or order, in accordance with its rules made under section 25.1, and may confirm, vary, suspend or cancel the decision or order.

(2) The review shall take place within a reasonable time after the decision or order is made. [Emphasis added]

Section 25.1(1) of the SPPA provides as follows:

25.1 (1) A tribunal may make rules governing the practice and procedure before it.

The Director of Arbitrations has made rules governing the practice and procedure before arbitrators. These rules are set out in the Dispute Resolution Practice Code. These rules provide that I have the authority to vary or revoke my decision in very limited circumstances:

♦ to correct a typographical error, error in calculation or similar error made in my decision.²

♦ if Mrs. Oleiro first applies to the Director of Arbitrations to vary or revoke the order and the Director appoints me to decide Mrs. Oleiro's application for variation/revocation.³

Neither of these circumstances apply in respect of Mrs. Oleiro's request. I conclude, therefore, based on the SPPA and Code that, even if I was inclined to do so, I have no authority to amend or vary my decision, as requested by Mrs. Oleiro.

Even if I had the authority to vary my decision in this case, Mrs. Oleiro has not persuaded me that I can make a decision binding on Dr. Fernandez and the physiotherapy clinics. As a statutory decision maker, I only have the authority given to me expressly by legislation or that is present by necessary implication.⁴ Section 279 of the Insurance Act, R.S.O. 1990, c. I. 8, as amended indicates that I only have the authority to decide by order, disputes in respect of an insured person's entitlement to statutory accident benefits or in respect of the amount of the statutory benefits, in accordance with sections 280 to 283 of the Insurance Act and the Schedule.⁵

Mrs. Oleiro submitted that section 27 of the Schedule provides me with the authority to make an order for repayment against Dr. Fernandez and the physiotherapy clinics. Section 27(1) states:

A person must repay to the insurer any benefit received under this Regulation that is paid to the person through error or fraud. [Emphasis added]

Mrs. Oleiro pointed out that section 27(1) uses the word "person" rather than the words "insured person." She submitted that unlike the words "insured person," the word "person" is not defined in the legislation. She submitted the use of the word "person" contemplates a much wider category of people than the category of people which fall within the definition of "insured person." She submitted that if the section had intended to limit my authority to only require insured persons to repay benefits, it would have used words "insured person" instead of "person." In contrast, Mrs. Oleiro noted that whenever there is a reference in the Schedule to the insurer's obligation to pay benefits the words "insured person" are used.

I do not agree with Mrs. Oleiro that section 27(1) of the Schedule provides me with authority to make an order for repayment against Dr. Fernandez and the physiotherapy clinics. The scope of section 27(1) of the Schedule, in my view, is limited by other sections of the Schedule. It cannot be read in isolation. Section 27(1) indicates that I may make an order for repayment against a person who has received a benefit under the Schedule. It states: "(a) person must repay to the insurer any benefit received under this Regulation ..."[Emphasis added] In this case there is no dispute that although Commercial Union paid the monies for the physiotherapy treatments prescribed by Mrs. Oleiro's family physician after March 16, 1992 directly to the clinics, she received the physiotherapy treatments, i.e., she received benefits under section 6 of the Schedule. The order for repayment of these benefits is therefore appropriately directed against her.

Mrs. Oleiro alleges a breach of trust on the part of Dr. Fernandez. However, as noted above, I believe that my authority to adjudicate disputes is limited to disputes in respect of an insured person's entitlement to statutory accident benefits or in respect of the amount of the statutory accident benefits to which the insured person is entitled. I am not satisfied that I have authority to deal with allegations of professional misconduct or abuse against Dr. Fernandez. Mrs. Oleiro's remedy lies in a different forum.

Even if I had the discretion to reopen the hearing and even if I had authority over the subject matter of any dispute between Mrs. Oleiro and Dr. Fernandez in respect of his alleged misconduct and, further, even if I had the authority to make a decision binding on Dr. Fernandez and/or the physiotherapy clinics as Mrs. Oleiro suggests, I am not prepared to exercise my discretion to reopen the hearing. Dr. Fernandez and the physiotherapy clinics did not participate either in the hearing (except as witnesses) or at Mrs. Oleiro's motion to reopen the hearing.

Before reopening the hearing, the principles of natural justice require that I notify them and allow them to participate in Mrs. Oleiro's motion to reopen the hearing. Further, if I were to grant the motion and allow them to participate in the hearing, I would have to rehear the whole case before making any order requiring them to repay benefits owed by Mrs. Oleiro. I am not prepared to do this in the absence of a strong reason for doing so, as this would be highly prejudicial to Commercial Union. Mrs. Oleiro was aware prior to the hearing that Commercial Union was seeking repayment from her for payments it made to the clinics for physiotherapy treatments, pursuant to section 6(7) of the Schedule. Mrs. Oleiro could have, prior to the hearing and even at the hearing, raised the issue of whether Dr. Fernandez or the clinics were liable for repayment of any payments. She did not do this. I find that it is too late for her to raise this issue now.

Mrs. Oleiro submits that she is raising the issue now because of the findings that I made in my decision (supra). I do not accept this submission. My findings were made based on the evidence adduced at the hearing. Mrs. Oleiro was aware of the evidence prior to and at the hearing. As I said in Tran and Pilot Insurance Company (August 16, 1995), A-005207, and more recently in Sofantzidelis and AXA Insurance (Canada) (May 7, 1997), A95-000384, I believe that an arbitrator should exercise his or her discretion to reopen a case only in exceptional or extraordinary circumstances. To do otherwise would be to delay and jeopardize the arbitration process and the finality required in the process. I am not persuaded that the circumstances in this case are exceptional or extraordinary.

Order:

The hearing will not be reopened to consider the issue of whether Dr. Fernandez and/or the Bloor Christie Physiotherapy, Bloor Borden Physiotherapy and Annex Physiotherapy & Rehabilitation Clinics, and not Mrs. Oleiro, should be required to repay to Commercial Union payments they received from it for physiotherapy treatments provided to Mrs. Oleiro after March 16, 1992.

June 10, 1997

Shemin Manji Arbitrator

Date