Neutral Citation: 1998 ONICDRG 47, 1998 ONFSCDRS 47

FSCO A97-000364

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARY SHADD

Applicant

and

PRUDENTIAL OF AMERICA GENERAL INSURANCE COMPANY (CANADA)

Insurer

DECISION on a PRELIMINARY ISSUE

Issues:

This is a motion by the Applicant, Mary Shadd, for an order that the parties are bound by a settlement agreement negotiated by their counsel.

Ms. Shadd was injured in a car accident on January 15, 1994. Following a dispute¹ with Prudential of America General Insurance Company ("Prudential") over ongoing benefits, and an unsuccessful mediation, she applied for arbitration. Shortly before the hearing date, both counsel discussed settlement, and then exchanged correspondence confirming that a settlement had been reached. As time passed, however, it became apparent that they disagreed on whether a binding settlement had been reached.

The issues in this hearing are:

1. Did the parties enter into a binding contract of settlement, thereby precluding them from proceeding with arbitration?

2. Is Ms. Shadd entitled to a special award on the basis that the Insurer unreasonably delayed payments to her under the settlement agreement?

3. Is Ms. Shadd entitled to her expenses of this motion?

Result:

1. The parties entered into a binding contract of settlement, thereby precluding them from arbitration.

2. Ms. Shadd is entitled to a special award of $7,500.

3. Ms. Shadd is entitled to her expenses of this motion.

Hearing:

The hearing was held by teleconference on August 27, 1998, before me, Deena Baltman, Arbitrator. Mr. James E. S. Allin appeared on behalf of Ms. Shadd. Ms. Deborah Neilson appeared on behalf of Prudential.

Factual Background:

This matter arises out of a car accident which occurred on January 15, 1994, in which Ms. Shadd, the Applicant, sustained injuries that disabled her from carrying on her business as a self-employed hairdresser. Prudential paid income benefits for some time but later terminated them on the basis that Ms. Shadd was no longer disabled. After an unsuccessful mediation, Ms. Shadd applied for arbitration, and her hearing was scheduled for April 20-24, 1998. According to the pre-hearing letter, the issues in dispute at the arbitration included Ms. Shadd's entitlement to further IRBs, the correct amount of the IRBs, and various medical and rehabilitation benefits. The parties agreed that if the hearing arbitrator determined that Ms. Shadd remained disabled 104 weeks post-accident, Prudential would be obliged to make an LEC offer. The pre-hearing letter confirms that Ms. Shadd also claimed her expenses of the arbitration proceeding.

On April 16, 1998, four days before the hearing was scheduled to begin, a teleconference took place between James Allin, counsel for Ms. Shadd, and Mark Donaldson, counsel for Prudential.²

The parties discussed settlement with the assistance of an arbitrator from the Commission.

Later on that same day, Mr. Allin faxed a letter to Mr. Donaldson confirming "our telephone conversation of today wherein the pending arbitration in this matter was settled." The relevant text of this letter states:

I confirm that the terms of settlement are as follows:

1. Your client will pay to my client the sum of $5,900 on account of arrears for income replacement benefits up to May 1, 1998

2. Your client will continue to pay income replacement benefits to my client at the rate of $130.06 per week from May 1, 1998 and continuing during the lost earning capacity DAC process hereinafter referred to.

3. We have agreed that your client will arrange and my client will submit to a lost earning capacity DAC in London, Ontario. The DAC will be directed to examine both my client's pre-accident and post-accident income earning capacity. At the conclusion of the DAC, we have agreed that the regulations with respect to lost earning capacity will apply to my client's claim.

4. Your client will pay to my client her costs of having assistance and attendant care at her shop. As well, your client will continue to pay for the cost of housekeeping assistance at my client's home. I have agreed to provide to you written verification in possession of my client dealing with the arrears of expense insofar as the assistant at her work is concerned. I will pass this documentation along to you as soon as I receive it.

5. Finally, we have agreed that your client will reimburse to my client her expenses associated with the arbitration proceedings pursuant to the Dispute Resolution Code.

I confirm that this correspondence accurately confirms the settlement in this matter.

Yours very truly,

James E. S. Allin

[emphasis added]

Mr. Donaldson faxed a reply the following day, indicating that after reviewing his notes of the telephone meeting, he required clarification of paragraph 4 (regarding attendant care). His letter concludes: [I] confirm that we are satisfied that the balance of the items set out in your April 16, 1998 fax reflect the agreement reached." That same day, Mr. Allin faxed a response clarifying the issue of attendant care, and stated I trust that this clarifies that term of the settlement and we can now proceed to implement its terms."

Mr. Donaldson did not raise any further questions or concerns about the settlement.

By letter dated April 21, 1998, Mr. Allin advised that he was "preparing a statement of the arbitration costs." He indicated that once he collected all the invoices, he would "forward copies of same...along with [his] summary of expenses." On April 24, 1998, Mr. Allin mailed a summary" of his arbitration expenses along with receipts for all the disbursements. This included a detailed breakdown of the services performed, and the time expended, plus an itemized list of the disbursements incurred. The statement set out total fees (including GST) of $8,304.39, and total disbursements of $8,108.01, for a grand total of $16,412.40. Mr. Allin asked Mr. Donaldson to request the settlement funds and forward them along with documents required by the Commission to complete the matter. On May 7, 1998, Mr. Allin forwarded a revised statement of arbitration expenses, which included an additional invoice from Future Care Cost Associates. He again requested settlement funds.

After receiving no response to this material, on May 19, 1998, over one month since the settlement, Mr. Allin wrote to Mr. Donaldson inquiring about the absence of settlement funds and documentation. He received no response. On May 25, 1998, Mr. Allin's secretary telephoned Mr. Donaldson's secretary to inquire further. Mr. Donaldson's secretary advised that the funds had been requisitioned but not yet received.

It was not until May 29, 1998, approximately one a half months following the settlement, that Mr. Donaldson responded to any of Mr. Allin's entreaties. Mr. Donaldson's correspondence advised of some internal difficulties in dealing with one of the terms of the settlement, but assured Mr. Allin that "the balance of the settlement funds will be forwarded directly, and hopefully, we will be in a position to finalize this matter very shortly."

As of June 5, 1998, Prudential had complied with only one of the terms of settlement. Mr. Allin wrote to Mr. Donaldson demanding full compliance within 10 days, failing which he would bring a motion before the Commission. Having received no response, on June 24, 1998, Mr. Allin wrote to the Commission requesting its assistance.

Ultimately, despite the intervention of the Registrar, Prudential failed to fulfill all the terms of settlement. Mr. Allin therefore brought this motion for an order that the parties are bound by the terms set out in the settlement correspondence. The parties have since resolved all the terms of the settlement save one: Prudential insists that it never agreed to pay Ms. Shadd's legal fees.

This dispute over legal fees first became apparent on July 16, 1998, over three months following the settlement. On that date, Mr. Donaldson wrote to Mr. Allin acknowledging Mr. Allin's complaint that Prudential had not yet paid Ms. Shadd's arbitration expenses. Mr. Donaldson suggested that the parties did not address this issue during the settlement discussions, except for the costs of two expert reports. He stated that Prudential would not have agreed to pay expenses because the matter had not been fully resolved, due to an outstanding LEC issue. Mr. Donaldson suggested that Mr. Allin misunderstood what had been agreed to at the pre-hearing and accordingly we will have to proceed to arbitration."

Submissions and Findings:

Ms. Shadd asserts that Prudential is bound by the settlement terms set out in Mr. Allin's letter of April 16, 1998, and specifically that it agreed to pay her arbitration expenses, including her legal fees.

Prudential submits that there is no valid or binding agreement between the parties, and therefore Ms. Shadd must proceed to litigation. It raised several arguments in support of its position.

Mistake:

Prudential maintains that although it agreed to pay for a few specified expert reports, it did not agree, as part of the settlement, to pay Ms. Shadd's legal fees. It suggests that the parties were mistaken as to the terms of the agreement, and therefore there is no valid settlement.

The obvious question is why Prudential waited over three months before advising Mr. Allin that, in its view, it had not agreed to pay his legal fees. In his affidavit, Mr. Donaldson explained that for most of this time he believed that Mr. Allin was only claiming the cost of various disbursements, and therefore no clarification was required. But Mr. Allin's letter of April 16, 1998, confirms that Prudential agreed to reimburse Ms. Shadd's "expenses associated with the arbitration proceedings pursuant to the Dispute Resolution Code." (my emphasis) Counsel appearing at the Commission commonly use the term "expenses" to encompass both costs and disbursements. In his response of April 17th, Mr. Donaldson confirmed that, aside from a question regarding attendant care, Mr. Allin had accurately stated the agreement reached.

In her submissions on behalf of Prudential, Ms. Neilson noted that in the court system the term "expenses" is narrower than "costs," as the former may simply refer to out-of-pocket disbursements but the latter includes legal fees. She suggested that Mr. Donaldson may not have been sufficiently experienced with the dispute resolution process of the Commission to understand that "expenses," in this forum, also includes legal fees.

I have little sympathy for this approach. First, Mr. Donaldson is a member of Fireman Regan, a law firm which appears regularly at the Commission. Second, it is counsel's responsibility to familiarize himself with the legislation governing practice at the Commission. Section 282 (11) of the Insurance Act, which is subtitled "expenses," authorizes an arbitrator to award an insured person "such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations..." (my emphasis) The corresponding Regulation (commonly referred to as the "Expense Regulation"³) has been in place since 1990, and sets out both the "disbursements" and "legal fees" payable to an insured person. Finally, the Dispute Resolution Practice Code, to which Mr. Allin referred to in his letter of April 16th, sets out a procedure for resolving disputes over "expenses of representatives," including "legal fees" and other costs. Any cursory review of this material would make it obvious that the term "expenses," in this forum, includes both disbursements and legal fees.

Ms. Neilson suggested that despite these objections, if the parties were genuinely mistaken about a key term of the agreement, there is no valid contract of settlement. In contract law, a party may be relieved from liability under a contract if he or she entered it under a mistaken assumption. However, in order for this principle to apply, the mistake must go to the root of the contract.⁴Prudential did not submit, nor do I find, that its mistake regarding expenses is so fundamental to the agreement as to invalidate it. Moreover, where, as here, the mistake is clearly one-sided, the law applies an objective test to determine whether there was mutual assent. In his text on contract law, Fridman⁵ states:

The source of this approach to cases of this kind is the language of Blackburn J. in the English case of Smith v. Hughes, which has frequently been cited and followed in Canadian courts:

If whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.

In other words, what would a reasonable person infer from the words and conduct of the parties? In this case, any objective assessment can only lead to the conclusion that the parties intended for Prudential to pay Ms. Shadd's legal fees. That provision was squarely set out in Mr. Allin's letter of September 16th. Mr. Donaldson affirmed the term in his response. Mr. Allin made further reference to costs" and expenses" in his letter of April 21st. Most significantly, Mr. Allin forwarded a detailed breakdown of both his fees and disbursements on two separate occasions, April 24th and May 7th. There could be no doubt, after reviewing this material, that Mr. Allin understood the settlement to include legal fees. If Mr. Donaldson was truly under the impression that the settlement did not include legal fees, why did he not immediately try to clarify the situation?

It was not until July 16, 1998, over three months following the settlement, that Mr. Donaldson raised any question about legal fees. I find it significant that this objection arose only after Mr. Brian Samec, a senior claims specialist with Prudential, took over the handling of the file, on or about July 7, 1998. Mr. Samec, who was not involved in the settlement discussions, somehow concluded after reviewing the file that the settlement did not include Ms. Shadd's legal fees.⁶

Mr. Donaldson suggests that various correspondence from Mr. Allin supports Mr. Samec's conclusion. He refers, in particular, to Mr. Allin's letter of June 5, 1998, wherein Mr. Allin noted that he had received no response to the Bill of Costs that he had forwarded. Mr. Allin advised that he had therefore written to the Commission "requesting that an arbitrator be appointed to settle the issue of costs." Mr. Donaldson suggests that this confirms that "legal fees were not an issue that had been agreed upon." I disagree. Mr. Allin, clearly frustrated by having received no response to his Bill of Costs, was suggesting that if Mr. Donaldson did not agree with the amounts requested, the matter should be submitted to an arbitrator, who would then assess the expenses. If anything, this is entirely consistent with the settlement agreement, which provided for payment of expenses but did not specify the amount.

Mr. Donaldson also relied on Mr. Allin's letter of July 2, 1998, wherein Mr. Allin confirmed a recent telephone conversation with Mr. Fred Lam of Prudential. The letter addressed the status of the settlement provisions and included the following statement:

I confirm your advice to me that your company is not aware of the costs being claimed by my client as a result of this arbitration. I enclose herewith the revised arbitration cost schedule demonstrating the costs of the arbitration to be $16,512.40. I understand that the Fireman, Regan firm had not previously forwarded this information to you. I look forward to a cheque in payment of these costs.

[my emphasis]

Mr. Donaldson suggests that one can infer from this statement, particularly the portion I have bolded, that the parties did not agree that Ms. Shadd would recover her legal fees as part of the settlement. I find that suggestion remarkable. Again, if anything, the letter confirms that Ms. Shadd expects to recover her fees. The problem is that Fireman Regan had apparently not forwarded the Bill of Costs to Prudential, and therefore Mr. Lam was not aware of the amount of legal fees being claimed. Hence the statement your company is not aware of the costs being claimed..." That is why Mr. Allin mailed yet another copy of the Bill of Costs (this would be his third remittance), clarified the amount owing, and requested payment.

Uncertainty

Prudential's alternative submission is that because the settlement did not specify the amount Prudential was to pay for expenses, it is void for uncertainty. The courts have stated that where a term is uncertain, it may invalidate the contract, or at least be excised from it. But the courts have also been reluctant to hold a contract void for uncertainty. Their attitude is to try to find a clear meaning if at all possible."⁷ The courts have also said that where the alleged uncertainty concerns one specific obligation under the contract, rather than its entirety, the general approach is to determine whether the term in question relates to an essential aspect of the contract. This is consistent with the idea that if the general intention of the parties can be collected from the language within the four corners of the instrument or document which they have executed, it may be possible for the court to supply what is missing by inference."⁸

In this case, I do not agree with Prudential that the provision regarding expenses was vague or uncertain simply because it did not specify an amount. Mr. Allin's letter of April 16, 1998, confirming the terms of settlement, stated that Prudential would pay Ms. Shadd's expenses "associated with the arbitration proceedings pursuant to the Dispute Resolution Code." In my view, this implies that if the parties cannot agree on the amount, the expenses will be assessed "pursuant" to the dispute resolution procedure set out in the Code. As I noted above, the Code sets out⁹ what expenses are recoverable by an insured person. It also provides that where parties cannot agree on the amount of expenses to be paid, they may request an assessment of expenses by an arbitrator. Although Rule 77 refers to the situation where expenses are "awarded," it is perfectly conceivable, and in fact sensible, for parties to agree to its application in a settlement agreement as well.

This discussion begs the larger question of why Mr. Donaldson ever believed that Mr. Allin was prepared to settle everything in the arbitration except his legal fees. Mr. Donaldson suggests that neither party intended for the agreement to include legal fees because they were not negotiating for a full and final release of all issues in dispute. In his affidavit, Mr. Donaldson asserts that the "heart" of Ms. Shadd's claim "would lie in a subsequent proceeding dealing with LECB issues, and that the subject dispute was preliminary in nature." He suggests that Mr. Allin did not expect to recover his legal fees until the parties either arbitrated or resolved all issues concerning an LEC benefit.

My difficulty with this argument is that the agreement between the parties disposed of all the issues in dispute in this arbitration. The pre-hearing letter makes it clear that this arbitration did not include any issue concerning the amount of an LEC benefit. Unless and until an arbitrator found that Ms. Shadd remained disabled at the 104 week mark post-accident, that question was premature. At most, the parties agreed that if the hearing arbitrator determined that Ms. Shadd remained disabled 104 weeks post-accident, Prudential would be obliged to make an LEC offer.

For all intents and purposes, therefore, the LECB issue was not the heart" of this arbitration. And depending on the decision of the arbitrator, that issue may never have resurfaced. Even if it did, the evaluation process surrounding the RECDAC and the dispute process at the Commission suggest that it would be months, if not years, before that issue came to fruition.

I find it highly implausible that Mr. Allin would have agreed to postpone the recovery of his legal fees pending such an indefinite scenario. He had been representing Ms. Shadd since the inception of her claim. He had incurred extensive time and disbursements in preparing for this arbitration. The Commission's file is thick with document briefs, medical briefs, production briefs, income tax briefs, evidence briefs, pre-hearing briefs, and surveillance briefs, not to mention extensive correspondence — all this for an arbitration that Prudential suggests was of such little significance that Mr. Allin was prepared to delay the recovery of his fees indefinitely. I reject that idea as most improbable.

Compliance with the Settlement Regulation

The final issue is whether the settlement is invalid because the requirements of the Settlement Regulation¹⁰ were not met. This Regulation provides that in the event of a settlement, the insurer shall" provide the applicant with a written notice, containing specific content, before a valid settlement can occur. This was not done here.

Prudential did not suggest that its failure to comply with the Settlement Regulation should invalidate the settlement. Rather it argued that the settlement was not binding because Ms. Shadd never provided a release. The problem with this approach is that Ms. Shadd's obligation to provide a release is not triggered until Prudential has delivered the required notice under the Regulation. And the wording of the Regulation makes it clear that the onus is on the insurer to deliver the necessary notice. Therefore it is Prudential, not the Applicant, who failed in its obligations.

The question then is whether Prudential can rely on its failure to comply with the Regulation in order to invalidate the settlement. I find that it cannot. The Regulation was enacted primarily as a vehicle to protect applicants who, in some cases, may be unrepresented or less sophisticated than insurers. That is why the Regulation requires disclosure from the insurer to the applicant. Specifically, it forces the insurer to set out a description of any benefits which might be available to the applicant, an outline of the settlement terms, and a statement of the impact of the settlement on the applicant's entitlement to further benefits. Two additional requirements, in particular, underscore the goal of protecting applicants: first, the notice includes a recommendation that the applicant seek legal, financial and medical advice before entering into the settlement; second, it provides for a cooling off" period of two business days within which the applicant may rescind the settlement.

I recognize that previous case law at the Commission suggests that the failure to comply with the Settlement Regulation is fatal. I myself, in Coto and Allstate Insurance Company of Canada,¹¹followed those cases with approval. But all of those cases, save one,¹² involved applicants seeking to avoid a settlement because they had not received the disclosure mandated by the legislation. As the Regulation is designed primarily to protect applicants, it makes sense that where insurers fail to comply, applicants can avoid the settlement. As I noted in Coto, the legislation is "consistent with the drafters' intention of safeguarding applicants' rights by requiring delivery of the notice as a pre-condition to entering into a binding settlement." (emphasis added)

In this case, by contrast, it is the insurer who wishes to avoid a settlement where it did not comply with the Regulation. The only similar case at the Commission is Abdulbaki and Royal Insurance Company.¹³ There the insurer made an offer, by letter, to settle the Applicant's claims. The Applicant's counsel accepted the offer and requested a "draft release" in a letter delivered the following day. Three days later, the Insurer's counsel delivered a letter rescinding the settlement on the basis of fraud, relying upon information received that day. Arbitrator Palmer considered two issues: first, does an arbitrator has jurisdiction to determine whether the parties entered into a binding contract of settlement¹⁴ and second, if so, whether there was a binding contract. The majority of Arbitrator Palmer's decision deals with the first issue, on which she concluded that an arbitrator has the necessary jurisdiction. She then briefly considered whether there was a binding contract, and determined that there was not, as "the written notice contemplated by the Settlement Regulation must be delivered before an effective settlement can be achieved by the parties to the agreement."

I find that Abdulbaki can be distinguished on two grounds. First, the primary issue before Arbitrator Palmer was that of jurisdiction. Second, and most importantly, Applicant's counsel did not argue that the Insurer was estopped from relying on its own failure to comply with the Settlement Regulation. By contrast, Ms. Shadd's counsel has vigorously asserted that position, requiring me to examine the respective roles that the parties play against the goals of the legislation. After doing so, I conclude that an insurer may not rely upon its failure to comply with the Regulation in order to evade a contract it negotiated with an applicant. Otherwise, insurers could deliberately frustrate settlements where they had second thoughts afterwards, simply by refusing to forward the documents required under the Regulation. This seriously undermines the legislative goal of dispute resolution.

Special Award:

Ms. Shadd seeks a special award under subsection 282 (10) of the Insurance Act, on the ground that Prudential, by failing to implement the settlement agreement, unreasonably withheld or delayed payments" to Ms. Shadd.

Prudential argues that a special award can only be ordered at an arbitration, not on a motion,¹⁵ as this is. I disagree; subsection 282 (10) carries no such restriction. Rather it is a broad provision, stating that an arbitrator shall" impose a special award where there is an unreasonable conduct. It is true that most special awards arise in the context of a full arbitration hearing; for this reason subsection 282 (10) allows the arbitrator to impose a special award in addition to" any award of benefits and interest to which an applicant may be entitled. By distinguishing the special award from an award for benefits or interest, the legislators made it clear that it is a penalty. But the trigger for this penalty is unreasonable conduct, wherever and whenever it arises. Benefits are relevant only in influencing the amount of the special award; the arbitrator can impose a special award of up to 50 percent of the amount to which the applicant is entitled.

In this case the Insurer refused to implement the settlement agreement on the basis that the parties were mistaken about its terms or, alternatively, that its terms were uncertain. Not only is there no merit to the Insurer's position, but I find that Prudential, through its counsel, engaged in a wishful reconstruction of what had occurred. It disregarded the very straightforward correspondence that clearly spelt out the terms of the settlement, and instead raised spurious arguments or twisted Mr. Allin's correspondence out of context in order to revise its agreement with Ms. Shadd. To compound matters, it ignored numerous phone calls and letters from Mr. Allin, who was desperately trying to get funds to his client.

This conduct also undermines the very important goal of dispute resolution. When parties arrive at a settlement within the context of one of the Commission's processes, they are expected to comply fully and promptly with the terms of the agreement.

The only remaining question is the amount of the special award. The legislation provides that I shall award a lump sum of up to 50 percent of the amount to which the applicant was entitled. In light of the amounts reflected in the settlement agreement, and the concerns that I have noted above regarding the Insurer's conduct, I find that a special award of $7,500, inclusive of interest, is appropriate in this case.

Expenses:

Ms. Shadd is entitled to her expenses of this motion. Obviously, I have also found that under the settlement Prudential agreed to pay Ms. Shadd's legal expenses. I now expect both parties to attempt to resolve all these expenses promptly and reasonably. I should not be revisited unless it is absolutely necessary.

Order:

1. The parties are bound by the settlement agreement reached between them, and may not proceed with arbitration.

2. Ms. Shadd is entitled to a special award of $7,500.

3. Mrs. Shadd is entitled to her expenses of this motion.

October 2, 1998

Deena Baltman

Arbitrator

Date

Footnotes

1. 1Under the Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, “1994 Schedule” refers to the original O.R. 776/93, and “1995 Schedule” refers to O.R. 776/93 as amended.
2. 2Mr. Donaldson's affidavit indicates that Ms. Shadd and Mr. Clive Townsend, a representative of Prudential, also participated in the discussion. Ms. Shadd's affidavit suggests otherwise.
3. 3Ontario Regulation 664, 1990, as amended
4. 4G.H.L. Fridman, The Law of Contract in Canada, 3rd edition (Carswell, 1994), pp. 255 ff.
5. 5Supra, pp. 258
6. 6Affidavit of Mark K. Donaldson, sworn August 26th, 1998, paras 18-20.
7. 7Fridman, supra, p. 20
8. 8Fridman, supra, p. 21
9. 9Rules 76 & 76, and Section F (Schedule to the Expense Regulation)
10. 10Section 9.1 of Regulation 664, R.R.O. 1990, as amended.
11. 11(OIC A-951718, July 4, 1996)
12. 12Abdulbaki and Royal Insurance Company of Canada, (OIC A-010205, December 12, 1995), discussed below.
13. 13Supra, note #12
14. 14Neither party to this motion raised the jurisdictional argument.
15. 15In Tanner and Allstate Insurance Company of Canada ,(OIC A95-000616, May 20, 1998), Arbitrator Palmer reserved on a special award on an application for interim benefits (the parties later settled the case before she released her decision). In Simpson and Trafalgar Insurance Company of Canada, (FSCO A98- 000215, July 16, 1998), also an application for interim benefits, Arbitrator Palmer issued a special award.