Neutral Citation: 1998 ONFSCDRS 22

FSCO A96-000419

BETWEEN:

BRUCE CASSMAN and JESSIE CASSMAN

Applicants

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

The Applicants, Bruce Cassman and Jessie Cassman, were injured in a motor vehicle accident on December 10, 1992. They applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under Ontario Regulation 672.¹ The parties were unable to resolve their disputes through mediation, and Mr. and Mrs. Cassman applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Wawanesa claimed a repayment of all statutory accident benefits paid to the Applicants.

The issues in this hearing are:

Are Bruce Cassman and Jessie Cassman entitled to weekly income benefits after March 18, 1994 under section 12 of the Schedule?
What is the correct amount of the weekly income benefit payable to Bruce Cassman and Jessie Cassman under section 12 of the Schedule?
Are Bruce Cassman and Jessie Cassman entitled to supplementary medical and rehabilitation benefits under section 6 of the Schedule?
Are Bruce Cassman and Jessie Cassman entitled to education benefits, caregiver benefits, other disability benefits, loss of earning capacity benefits, and attendant care expenses under the Schedule?
Are Bruce Cassman and Jessie Cassman entitled to their expenses in respect of the arbitration?
Is Wawanesa entitled to a repayment of statutory accident benefits due to error or fraud under section 27 of the Schedule?
Is Wawanesa entitled to its expenses in respect of the arbitration?

Bruce Cassman and Jessie Cassman also claim interest on any overdue benefits.

The claims made by Bruce Cassman and Jessie Cassman in this arbitration for weekly income benefits, supplementary medical and rehabilitation benefits, and interest are dismissed.
There is no provision for loss of earning capacity benefits, caregiver benefits, other disability benefits, education benefits and attendant care benefits under the applicable Schedule. These claims are also dismissed. Since no benefits are payable there are no payments which would attract interest.
Mr. and Mrs. Cassman are not entitled to their expenses in respect of this arbitration.
I have no authority to award Wawanesa its expenses in respect of this arbitration
Wawanesa is entitled to an award in the amount of $2,000 in respect of its assessment.
Wawanesa is permitted to withdraw its claims for repayment of statutory accident benefits against Bruce Cassman and Jessie Cassman.

Background

Mr. and Mrs. Cassman were injured in a motor vehicle accident on December 10, 1992. They have represented themselves throughout the arbitration process. The arbitration hearing was scheduled for three days, commencing Monday, June 15, 1998, at 10:00 a.m. at the offices of the Ontario Insurance Commission. Those dates were peremptory to the Applicants. On Friday, June 12, 1998, on the eve of the arbitration hearing, Mr. Cassman sent a letter to the Registrar by fax, in which he requested an adjournment of the hearing, and, if that request were not granted, a teleconference arbitration hearing. The Applicants did not send a copy of this letter to counsel for the Insurer. The Registrar spoke with counsel for the Insurer to ascertain Wawanesa's position, then denied both requests.

Mrs. Cassman then sent a letter to the Registrar by fax. She requested an adjournment, a hearing by teleconference call, and alternatively an Order requiring Wawanesa to pay for airline tickets and hotel accommodation during the hearing, for herself, her husband and three children. Mrs. Cassman also expressed a concern that they would not be able to receive a fair and impartial hearing.

The hearing

The hearing commenced on Monday, June 15, 1998 at 10:00 a.m., as scheduled. When the hearing commenced, counsel for the Insurer was in attendance. I informed him of the correspondence from Mrs. Cassman. I recessed briefly to permit him to review that letter, and to wait 15 minutes in case the Applicants had a representative who was simply late. I also informed counsel for the Insurer that I proposed to conduct a telephone conference call to deal with Mrs. Cassman's three requests and the allegation of bias.

At 10:15 a.m., neither of the Applicants was present, and no representative attended on their behalf. Section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended permits me to proceed with a hearing in the absence of parties, where I am satisfied that they have been sent notice of the hearing. I was satisfied that the Applicants had been sent notice of the hearing, and that they had received that notice, based on their letters seeking an adjournment.

Mr. Cassman's letter acknowledged the possibility that the arbitration could be dismissed in their absence.

At approximately 10:20 a.m., I telephoned the Applicants. An answering machine answered, and, after the "beep," I left a message in which I identified myself as the hearing arbitrator, stated the reasons for my call and advised that I would call back in five minutes. I telephoned the Applicants again at 10:25 a.m. The answering machine again took my call. I left a further message advising that I would be proceeding with the hearing and that my decision, based on the evidence that I heard, the documents I received and the submissions which I heard that day, would be issued in writing.

The hearing was conducted over two days. On the first day I ruled that the Applicants had failed to meet their burden of proof and dismissed their claims. While the hearing was in progress, the Applicants faxed documents to the Commission. They alleged that there had been a problem with their fax machine, and on the next day purported to resend the earlier transmission. The Commission sent 49 pages of documents to counsel for the Insurer for his response, if any, by June 24, 1998.

Counsel for the Insurer opposed my receiving the Applicants' documents on several grounds. He submitted that I had already dismissed the Applicants' claims and no longer had any power or authority to deal with the matter. He submitted that while I had a discretion to receive the documents, the Applicants' conduct did not warrant an exercise of discretion in their favour. He also submitted that the documents raised new issues which had not been mediated, and that the purported basis for tendering those documents was false.

In his letter dated June 16, 1998, Mr. Cassman stated that the arbitrator had "left a message on our answering machine yesterday stating that she was proceeding with the hearing and would accept evidence sent that day." Counsel for the Insurer was present when I attempted to call Mr. and Mrs. Cassman. He submitted that I did not leave such a message. I agree with counsel for the Insurer that I did not make such a statement. However it is conceivable that my statement, that my decision would be based on the evidence that I heard and documents which I received that day, could have been misinterpreted to mean that I would consider documents received on that day of the hearing. I have exercised my discretion to consider that documentation based on the possible misunderstanding, and the fact that the hearing was in progress. Had the documentation been transmitted after the hearing had concluded, I would not have received it into evidence unless the circumstances were exceptional or extraordinary, for the reasons given by Arbitrator Manji in Dat Tran and Pilot Insurance Company.² Counsel for the Insurer submitted that having made a final order dismissing the Applicants' claims, I was functus. That is to say that I had exhausted my authority in relation to this matter. I do not agree that I am functus until I sign my decision and it is issued by the Commission.

Preliminary Matters

Adjournment request

The Applicants requested an adjournment of the hearing. This was the second hearing date scheduled in this arbitration, and the hearing dates were peremptory to the Applicants. The Insurer opposed the request.

After mediation, an insured person can choose the forum in which he or she wishes to proceed to have his or her dispute adjudicated. The insured person can choose to go to court, or to arbitration. The arbitration process was designed to be a speedy one, and it was the process chosen by the Applicants. The Commission has an obligation to conduct arbitrations efficiently and speedily. That obligation is owed to both the Applicant and the Insurer. This case has had a lengthy history. I find that moving this arbitration toward a conclusion has been less than a priority for Mr. and Mrs. Cassman.

Mr. and Mrs. Cassman's arbitration application was filed on March 6, 1996, and registered by the Commission on April 3, 1996. Scheduling the pre-hearing proved to be the first hurdle. On May 26, 1996, and again on July 31, 1996, the Registrar's office wrote the Applicants advising that the telephone number they provided was out of service, and that the case administrator had been unable to reach them by telephone to schedule a date for a pre-hearing. In a letter dated September 20, 1996, Mr. Cassman advised that shortly after filing the claim, he had been transferred to British Columbia.

The correspondence from the Applicants indicates that they made repeated requests to delay the scheduling of the pre-hearing, citing various reasons. These included the recent move to British Columbia, stress, Mrs. Cassman's recuperation from pregnancy, an infant who kept them up at night, taking physiotherapy and medication, and a stated desire to retain counsel.

Eventually, the Registrar's office wrote Mr. Cassman that they were required to commit to a pre-hearing date by January 15, 1997, or the Commission would consider the arbitration to have been abandoned. A Notice of Pre-hearing, dated January 30, 1997, was sent to the parties with a pre-hearing date of June 10, 1997. Mr. Cassman responded that this date was set "under protest" . . . "at best tentative" and that the Commission had capitulated "to the interests of the Insurer."

On June 9, 1997, the day prior to the pre-hearing, Mr. Cassman wrote the Registrar's office advising that he was currently ill with acute bronchitis, and that his wife was suffering a severe regression of her accident related injuries. On the day of the pre-hearing, Mr. Cassman requested an adjournment. He stated "Today my wife and I are very ill and we have not yet been able to make arrangements with our lawyer for representation and we therefore cannot proceed at this time." The Registrar denied the requested adjournment.

According to the report of the pre-hearing arbitrator, Mr. Cassman was permitted half an hour to sort out retainer arrangements. The lawyer, from the Gluckstein, Neinstein law firm, advised the pre-hearing arbitrator that she would not represent Mr. Cassman. Mr. Cassman then alleged that he had severe bronchitis and requested an adjournment. The pre-hearing arbitrator was "not persuaded that Mr. Cassman was medically unable to participate" and proceeded with the pre-hearing. Hearing dates were set for February 17, 18 and 19, 1998, and a copy of the Commission's adjournment policy was provided to the parties with the pre-hearing report. On February 16, 1998, on the eve of that hearing, Mr. and Mrs. Cassman sent a letter by fax to the Registrar requesting an adjournment of the hearing. That letter stated "my wife and I have been called to Malaysia on urgent family business. There has been a recent death in the family requiring our attendance and we will be absent from Canada for an indefinite period of time to take care of family affairs. A teleconference call will not be possible as our time timezone [sic] is approximately 13 hours ahead and our evidence remains in Canada. Regretfully these circumstances make it impossible for us to participate . . . request an adjournment until our return upon which we will contact you directly to set another date."

The Applicants did not send a copy of their request to counsel for the Insurer. According to the Commission's adjournment policy, adjournments of hearings are granted sparingly. A death in the family is one of the rare circumstances in which the Registrar will grant an adjournment of a hearing. The Registrar's office granted the adjournment and notified counsel for the Insurer of the adjournment. Counsel for the Insurer asked the Registrar to reconsider the decision. He stated that the Applicants left Canada for Malaysia on November 19, 1997, planned to return at the end of March 1998, had sublet their apartment in British Columbia for that period, and that the "evidence is overwhelming that the departure of the Cassmans was not an unexpected or urgent development but a planned event."

The Registrar wrote to the Applicants in Malaysia, and enclosed a copy of the letter from counsel for the Insurer, so that they were aware of the allegation that they misled the Registrar in order to obtain an adjournment. The Registrar directed the Applicants to confirm the date of their departure from Canada, anticipated return date, to provide documentation identifying the deceased family member, the date of the person's death and that person's relationship to the Applicants.

I find that the Applicants have not provided the Commission with any of the requested information, or with any documentation which would refute the serious allegation that they misled the Registrar. The Registrar rescheduled the hearing to June 15, 16, and 17, 1998, peremptory to the Applicants.

The Applicants have been representing that they intended to retain counsel to represent them in relation to this arbitration since September 1996. The Registrar's office and the pre-hearing arbitrator provided specific suggestions, including seeking legal aid, consulting the yellow pages, and telephoning the Law Society of Upper Canada.

According to a letter from Dr. Becker, a physician who treated Mr. Cassman, at the time of the accident, Mr. Cassman was "a self-employed law clerk . . . Most of his files were referred in the past by lawyers." This statement suggests that Mr. Cassman had a good deal of familiarity with lawyers even before specific suggestions were made by staff at the Commission. Given that familiarity, the information provided by the Commission, the financial resources to spend between $10,000 and $20,000 in travel to Malaysia,³ it is difficult to understand the Applicants' delay in retaining counsel.

Shortly before the pre-hearing, Mr. Cassman represented to the Registrar that he had retained Mr. Gluckstein, Barrister & Solicitor in relation to the "no-fault automobile accident on December 10/92."⁴ On June 10, 1997, the Registrar wrote Mr. Cassman that he had spoken with Mr. Gluckstein in follow up, and that Mr. Gluckstein denied that he had been retained.

A year later, on June 11, 1998, Mr. Cassman wrote the Registrar, "we are in the process of retaining a lawyer and wish to be represented." During the first day of the hearing Mr. Cassman sent a fax advising "we have retained Gluckstein Neinstein!" Despite this statement, no one from that firm attended at the hearing on June 15 or 16, 1998.

The Applicants have been less than candid with respect to their attempts to retain counsel to assist them in the prosecution of this arbitration. I concluded that the Applicants had ample time, and adequate information to retain counsel to represent them had they wished to do so. The hearing dates were peremptory to the Applicants. I was not persuaded that this matter should be adjourned to permit the Applicants to retain counsel. The Applicants had ample time to prepare for the hearing. I was not persuaded that a further delay was warranted. I denied their request for an adjournment.

Request for teleconference hearing

Section 34.1 of the Dispute Resolution Practice Code permits an arbitrator to conduct an electronic hearing. This includes a teleconference hearing.⁵ Section 34.2 of the Code provides that "The arbitrator will only hold an electronic hearing if he or she is satisfied that holding an electronic hearing will not significantly prejudice a party."

The manner in which the hearing is to be conducted is the province of the hearing arbitrator. I telephoned Mr. and Mrs. Cassman on the first day of the hearing to determine whether the hearing could be conducted by teleconference call, as they had requested. Neither of the Applicants was available to provide further particulars in this regard. The Insurer alleged that there were credibility issues for me to determine.The Applicants had the burden of satisfying me that conducting a teleconference hearing would not significantly prejudice the Insurer. They did not do so, and their request for a teleconference hearing was therefore denied.

Interim expenses

The Applicants asked for an Order requiring Wawanesa to pay for airline travel and hotel accommodation for themselves and three children. No particulars were provided with respect to the cost, the amount claimed, or the proposed date and time of travel. This request was not communicated to Wawanesa, but sent to the Commission.

Generally, arbitrators determine entitlement to and the amount of expenses after determining benefit entitlement. However section 282 (11.1) of the Insurance Act permits an arbitrator to exercise his or her discretion to grant interim expenses. Interim expenses are not routinely granted. Arbitrators have established criteria which may guide them in the exercise of their discretion, such as a consideration of the merits of the case, need, and urgency.

The Applicants checked off each of the tick boxes for benefits on the arbitration application, with the exception of death and funeral benefits. The Insurer claimed entitlement to a repayment of all benefits paid to the Applicants. The parties have very different views of the merits of the case; however there was no documentation before me which permitted me to conclude that the Applicants' case had merit.

I was not persuaded that the Applicants met the criteria of need. Mr. Cassman states in a letter that they are impecunious, being pursued by creditors and unable to make the trip to Ontario for the hearing. No documents which support these statements have been filed. The Applicants commenced an arbitration application in Ontario and then chose to leave the jurisdiction and move to British Columbia. There was no suggestion that the move was required because of the motor vehicle accident. The Applicants were not without financial resources. They chose to spend some of those resources on travel to Malaysia. According to Mr. Cassman's letter, the cost of that travel was between $10,000 and $20,000. They could instead have chosen to spend some of those funds to pay for their travel to Ontario. I was not persuaded that the Insurer should bear the financial consequences of the Applicants' decisions to move to British Columbia and to commit their financial resources to other priorities.

The request was made on the eve of the hearing. It was certainly urgent in relation to the hearing date. However, the hearing date had been set almost four months earlier, and was peremptory to the Applicants. The Applicants did not state the cost of travel and accommodation during the hearing, or give any indication of when they would arrive. This caused me to doubt that the request was made in good faith. I was not persuaded that I should exercise my discretion to grant interim expenses in the circumstances of this case. I therefore dismissed the request for interim expenses.

Bias

In her letter dated June 12, 1998, Mrs. Cassman stated to the Registrar: "By cooperating with the Insurer the Commission is demonstrating bias and we are now concerned about receiving a fair and impartial hearing." Mrs. Cassman appears to be referring to the Registrar's refusal to schedule a teleconference hearing, as she and her husband had requested, based on Wawanesa's position that there were credibility issues to be determined. There was a valid basis for the Registrar's decision. I found that the allegation of bias was made without any foundation. I did not agree with the allegation, and concluded that I could proceed with the hearing.

Claims to be arbitrated:

Following the pre-hearing, Mr. Cassman wrote the Commission that the Applicants wished to claim all of the benefits they checked off in the application for arbitration. As noted earlier all of the boxes, except for the claims for death and funeral benefits had been checked off in the application. I find that the Schedule under which Mr. and Mrs. Cassman claim statutory accident benefits does not provide education benefits, loss of earning capacity benefits, caregiver benefits, other disability benefits and attendant care benefits. These claims are dismissed.

Weekly income benefits

Mr. and Mrs. Cassman claimed weekly income benefits under section 12 of the Schedule after they were terminated on March 18, 1994. According to the pre-hearing report, Mr. Cassman was developing a "service business" and Mrs. Cassman was assisting him. Wawanesa paid each of the Applicants $185.60 until March 18, 1994. The Cassmans claim they should have been paid at a higher rate and should receive those benefits indefinitely.

There was no evidence about Bruce Cassman's or Jessie Cassman's work related duties, or medical evidence which established that as a result of the accident either Applicant was substantially unable to perform the essential tasks of his or her occupation or employment after March 18, 1994. There was no evidence that either of the Applicants was continuously prevented from engaging in any occupation or employment for which either of them was reasonably suited by education, training or experience after 156 weeks. I find that the Applicants have failed to meet their burden of proof with respect to their claims for entitlement to weekly income benefits after March 18, 1994, under section 12(1) and 12(5)(b) of the Schedule, and these claims are therefore dismissed.

I also find that none of the documentation establishes that either Bruce Cassman or Jessie Cassman was entitled to a weekly income benefit above the minimum amount of $185.60 under section 12(7) of the Schedule. The Applicants have failed to meet their burden of proof with respect to their claims for a benefit at a higher rate, and these claims are dismissed.

Supplementary medical benefits

The Appplicants submitted copies of invoices for various supplementary medical and rehabilitation benefits. These documents were amongst those sent in the fax transmission during the hearing, and provided to counsel for the Insurer. Counsel for the Insurer submitted that these were new claims which had not been mediated. I agree that the Reports of Mediator do not reflect that mediation took place with respect to supplementary medical and rehabilitation benefits. In the absence of the Insurer's consent, I have no jurisdiction to deal with these claims.

However the pre-hearing report states that these claims are in issue in the arbitration. I infer that counsel at the pre-hearing, who was not counsel at the hearing, consented to the inclusion of some of these items; although it is unclear to me which ones. For the sake of completeness I will deal with these claims in the alternative, as if I had jurisdiction. Section 6 of the Schedule provides for the payment of all reasonable expenses resulting from the accident for various supplementary medical and rehabilitation benefits.

The Applicants submitted an invoice for a Biocare TEN-880S machine, dated March 19, 1998 from a store in Malaysia for "450." There is no indication of the currency in which the price was quoted. There is a copy of a receipt for a back support from the Price Club; the cost is not legible. There is also an invoice for a cervical hotpack for $32.38. There is a letter from a physiotherapist who states that Mr. and Mrs. Cassman came to her "in September 1996, with complaints of chronic neck and back pain which they state is the result of a motor vehicle accident in 1992." In that letter the physiotherapist requests further physiotherapy, and recommends a membership in a recreational centre, the use of pain relieving modalities such as a TENS machine and moist heat therapies.

There is a note from a massage therapist in which 20 to 24 massage treatments are recommended for Mrs. Cassman. There is a handwritten note signed "Margaret", which appears to have been written on blank paper, to which the card of John Ohorodnyk, D.D.S. is attached. The narrative refers to dental treatment for Mrs. Cassman; however the nature of the dental work and the cost are unspecified.

There is also mention in other letters of TMJ treatment, acupuncture, and a floor mat. There is an invoice for $848.15 dated August 5, 1996 for a king size set, and a letter from the Applicants that this was a mattress recommended by a chiropractor. There is a letter from a chiropractor dated October 25, 1994 in which a firm mattress was recomended for Mrs. Cassman. There is also correspondence in relation to therapy at the Canadian Back Institute.

Having regard to the misleading statements which Mr. Cassman has made on his behalf and that of Mrs. Cassman during the arbitration process, I am not prepared to accept any unsworn statement from either Applicant that any of these items were required as a result of the accident on December 10, 1992. There was no evidence from a health practitioner which established that any of these items were required as a result of the accident on December 10, 1992. I find that the Applicants have failed to meet their burden of proof with respect to their entitlement to supplementary medical and rehabilitation benefits in this arbitration and these claims are therefore dismissed.

Interest

The Applicants claimed interest on overdue benefits. Since I have concluded that no benefits are payable, there are no payments which would attract interest.

Repayment

The Insurer sought repayment of all benefits paid to Mr. and Mrs. Cassman under section 27 of the Schedule. Wawanesa has the burden of proof in this regard. Counsel for the Insurer submitted that I should draw an adverse inference from the Cassmans' failure to produce documentation. While I would be prepared to draw such an inference against the Applicants' claims, I do not believe that I can go the next step and infer that the Insurer's claim is made out, based on the Applicants' default. The Schedule requires me to determine whether there was error or fraud, and if so, the amount of benefits to be repaid. I stated to counsel that in my view the Insurer has a positive obligation to adduce evidence with respect to its claims for repayment.

Counsel for the Insurer then requested an adjournment of the hearing to June 16, 1998, to permit Wawanesa to adduce such evidence. On June 16, 1998, counsel for the Insurer sought a further adjournment of 15 to 20 days. Counsel advised that he had personally spoken with two persons at Canada Post, including someone in the payroll office, and they had been unable to confirm Mr. Cassman's employment during the relevant period by way of a search of computerized records. Counsel for the Insurer stated that he was satisfied that genuine efforts had been made.

I was not persuaded by the submissions that I heard that Wawanesa would be in a position to provide the requisite evidence in the suggested time frame, and declined to grant the further adjournment.

Insurer’s withdrawal

Counsel for the Insurer then sought an adjournment to obtain instructions from his client to withdraw the Insurer's claims. I granted counsel until 4:00 p.m. that day for this purpose. Counsel for the Insurer advised that he had received instructions from Wawanesa to withdraw the claim for repayment.

Arbitrators have a discretion whether to permit a withdrawal. Generally, arbitrators have exercised that discretion liberally in relation to Applicants and have permitted withdrawals of applications for arbitration at any stage of the arbitration process, even up to the day of the hearing. At times arbitrators have considered it appropriate to impose terms and conditions. I find that I should exercise my discretion in a similarly liberal manner where the Insurer seeks to withdraw its claims raised in an arbitration commenced by the Applicant. Wawanesa is therefore permitted to withdraw its claims for repayment against Mr. and Mrs. Cassman.

Expenses

The Applicants claimed their expenses in respect of this arbitration. Under section 282(10) of the Act, I have a discretion to award expenses. In this case I exercise my discretion to deny the Applicants their expenses in respect of the arbitration, based on their specious excuses, repeated delays, and failure to produce relevant documents or to provide authorizations which would permit the Insurer to obtain such documentation.

Wawanesa claimed an award in respect of its assessment. section 282 (11.2) of the Insurance Act gives an arbitrator the discretion to award an amount to be paid by the insured person to the insurer, that does not exceed the amount of the insurer's assessment, if an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process.

In Gawronski and Allstate Insurance Company,⁶ Director's Delegate Draper considered whether the word "commences" in section 282(11.2) restricts the focus of the inquiry to the commencement of the arbitration application, or whether later steps in the arbitration process could also be considered. He concluded that the section should not be interpreted so restrictively as to limit the focus of the inquiry to the time of the commencement of the arbitration.

I find that the Applicants' conduct has been contemptuous throuighout the arbitration process. They have made specious excuses, misleading statements, and failed to produce documents or sign authorizations which would permit the Insurer to obtain documentation which was relevant to the claims of the Applicants and of the Insurer. Although the Applicants wished the benefit of the arbitration process, they have not been prepared to abide by the rules which relate to the service of documents, scheduling, adjournments, the production of documents or the hearing. They requested a teleconference hearing, but were not available by telephone to deal with any of their requests, or to proceed with the hearing had I ordered it conducted electronically. In this regard Mrs. Cassman wrote that she was asleep when I attempted to reach them by telephone on the day of the hearing. The Applicants also made the serious allegation of bias without any foundation.

For these reasons, I find that the Applicants' application was an abuse of process, and that they should pay Wawanesa an award in respect of its assessment in the amount of $2,000. This is the full amount that Wawanesa has been assessed in relation to this arbitration application. For the reasons given in Nguyen and Pilot Insurance Company⁷ Mr. Cassman shall pay $1,000, and Mrs. Cassman shall pay $1,000.

Insurer's expenses

Wawanesa claimed its expenses in respect of the arbitration. For the reasons given in S.M. and Markel,⁸ I find that I do not have the authority to grant the Insurer’s claim under the law in effect at the time that the arbitration application was filed.

Order:

The claims by Bruce Cassman and Jessie Cassman for loss of earning capacity benefits, education benefits, caregiver benefits, other disability benefits, attendant care expenses, weekly income benefits, supplementary medical and rehabilitation benefits, interest and expenses are dismissed.
Bruce Cassman shall pay Wawanesa Mutual Insurance Company $1,000 as an award in respect of its assessment under section 282 (11.2) of the Insurance Act.
Jessie Cassman shall pay Wawanesa Mutual Insurance Company $1,000 as an award in respect of its assessment, under section 282 (11.2) of the Insurance Act.
Wawanesa Mutual Insurance Company is permitted to withdraw its claims for repayment of statutory accident benefits against Bruce Cassman and Jessie Cassman.
The claim by Wawanesa Mutual Insurance Company for its expenses in respect of the arbitration is dismissed.

August 14, 1998

Suesan Alves

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on June 15, and 16, 1998, before me, Suesan Alves, Arbitrator. Documents transmitted by fax by the Applicants on June 15 and 16, 1998 were sent to counsel for the Insurer with a request for further submissions on June 17, 1998. Further submissions were received from counsel for the Insurer on June 24, 1998.

Present at the Hearing:

Wawanesa's

Darrell P. March

Representative:

Barrister and Solicitor

Witnesses:

No witnesses testified at the hearing.

Exhibits:

Exhibit 1

Letter from Mr. Farrell to Mr. & Mrs. Cassman, dated April 22, 1996

Exhibit 2

Letter from Ms. Brown to Mr. Cassman, dated October 4, 1996

Exhibit 3

Letter from Ms. Brown to Ms. Christian, dated November 26, 1996

Exhibit 4

Letter from Ms. Brown to Mr. Cassman, dated December 19, 1996, and enclosure

Exhibit 5

Letter from Mr. Malcolm to Mr. Cassman, dated January 22, 1997

Exhibit 6

Letter from Mr. Malcolm to Mr. Cassman dated June 10, 1997

Exhibit 7

Letter from Mr. Farrell to Ms. Alleyne, dated June 10, 1997

Exhibit 8

Letter from Mr. Farrell to Mr. & Mrs. Cassman, dated June 12, 1997

Exhibit 9

Letter from Mr. March to Mr. & Mrs. Cassman, dated December 11, 1997

Exhibit 10

Letter from Mr. March to Mr. & Mrs. Cassman, dated January 21, 1998

Exhibit 11

Letter from Mr. March to pre-hearing arbitrator, dated February 9, 1998

Exhibit 12

Letter from pre-hearing arbitrator to Mr. Cassman & Mr. March, dated February 12, 1998

Exhibit 13

Letter from Mr. March to Mr. Malcolm dated February 19, 1998

Exhibit 14

Letter from Mr. Malcolm to Mr. & Mrs. Cassman, dated February 20, 1998

Exhibit 15

Letter from Mr. March to Ms. Alleyne, dated June 8, 1998

Exhibit 16

Assessment of Claim by Insurer in relation to Mrs. Cassman, dated June 8, 1993

Exhibit 17

Assessment of Claim by Insurer in relation to Mrs. Cassman, dated July 7, 1994

Exhibit 18

Assessment of Claim by Insurer in relation to Mr. Cassman, dated June 8, 1993

Exhibit 19

Assessment of Claim by Insurer in relation to Mr. Cassman, dated July 7, 1994

Exhibit 20

Letter from Canadian Back Institute from Wawanesa dated January 19, 1994

Exhibit 21

Letter from Dr. Becker to Mr. Shapiro dated January 3, 1995

Exhibit 22

Account of Samis, Blouin, Dunn

Footnotes

Prior 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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
(August 16, 1995),OIC A-005207
Letter from Mr. Cassman, dated June 11, 1998.
Letter dated June 4, 1997.
Section 4 of the Dispute Resolution Practice Code
(May 13, 1998), P98-00004
(August 21, 1996), P95-000005
(January 15, 1998), OIC A96-000258

Bruce Cassman and Jessie Cassman v. Wawanesa Mutual Insurance Company, 1998 ONFSCDRS 22

Case Summary