Neutral Citation: 1998 ONFSCDRS 6

FSCO A98-000215

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PAMELA SIMPSON

Applicant

and

TRAFALGAR INSURANCE COMPANY OF CANADA

Insurer

DECISION on INTERIM BENEFITS

Issues:

Pamela Simpson was injured in a motor vehicle accident on November 1, 1995. She received statutory accident benefits from Trafalgar Insurance Company of Canada ("Trafalgar"), payable under the Schedule¹ Trafalgar terminated weekly income replacement benefits on October 31, 1997. The parties were unable to resolve their disputes through mediation and Mrs. Simpson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The order sought on this motion for interim benefits is:

1. That Trafalgar pay interim income replacement benefits to Pamela Simpson pending a final decision in this matter and

2. That Trafalgar pay a special award to Pamela Simpson because they have unreasonably withheld or delayed these benefits.

Result:

1. Trafalgar shall pay weekly income replacement benefits of $613.77 to Pamela Simpson from October 31, 1997 to May 27, 1998 plus interest according to section 68 of the Schedule. Trafalgar may deduct from these income replacement benefits the requisite percentage of net income received by Pamela Simpson in respect of any employment after October 31, 1997, as set out in subsections 10(3) and 10(4) of the Schedule.

2. Trafalgar shall pay weekly loss of earning capacity benefits to Pamela Simpson from May 27, 1998, ongoing, according to the provisions of subsections 23(5) and 23(5.1) of the Schedule.

3. Trafalgar shall pay Pamela Simpson a lump sum special award of 10 percent of the amount to which she is entitled at the date of my order, together with interest on all amounts then owing to her (including unpaid interest) at the rate of 2 percent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Hearing:

The motion was heard at a pre-hearing conference at the offices of the Ontario Insurance Commission in North York on April 28, 1998, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing:

Applicant:

Pamela Simpson (and Arthur W. Simpson)

Mrs. Simpson's

David S. Wilson

Representative:

Barrister and Solicitor

Trafalgar's

Edmund W. Kent

Representative:

Barrister and Solicitor

Trafalgar's

Milton Jagannath

Officer:

No witnesses testified, but affidavits from both parties and four other exhibits were filed. After the pre-hearing, by agreement of the parties, I received a note from Dr. Roger Dacre, dated May 7, 1998 and a report of Workable Centres Inc., a RECDAC,² dated May 8, 1998, now marked as exhibits 7 and 8, respectively.

Evidence and Findings:

Background

Mrs. Simpson, now age 51, was a passenger in a motor vehicle involved in an accident on November 1, 1995. She received weekly income replacement benefits (IRBs) from Trafalgar until October 31, 1997. Prior to the accident, Mrs. Simpson worked at two full-time jobs, for a total of 80 hours per week. She returned to one job in late September 1996, on a graduated basis, and as of April 1, 1998 was working 32 hours per week.

In her Application for Arbitration dated February 9, 1998, Mrs. Simpson disputes the right of Trafalgar to terminate weekly income benefits as it did. She bases her claim on Trafalgar's failure to follow the provisions of section 64 of the Schedule. At this motion she claims reinstatement of her weekly IRBs until the steps taken in compliance with section 23 of the Schedule have been complied with and a loss of earning capacity (LEC) benefit is "authorized." She also claims interest on those benefits and a special award. Mrs. Simpson's lawyer submits that there is no issue between the parties in this arbitration as to the proper amount of Mrs. Simpson's IRBs ($613.77).

The relationship between the parties is complicated by the fact they are also involved in court proceedings arising out of this motor vehicle accident. Mrs. Simpson's Statement of Claim, issued October 7, 1997 and Trafalgar's Statement of Defence and Counterclaim, dated November 11, 1997, were filed as exhibits. In that action, Mrs. Simpson claims judgment against Trafalgar for outstanding arrears of IRBs. She also claims $11,037.45 for housekeeping and maintenance expenses and smaller sums for transportation, prescriptions, physical therapy, and laundry. In that action Mrs. Simpson seeks a declaration:

...that the entitlement of the said plaintiff to an income replacement benefit as provided in the said policy take into consideration the plaintiff's entitlement to vacation pay and that from and after November 8, 1995 and continuing so long as she is entitled to receipt of income replacement benefits pursuant to the provisions of the said policy, the appropriate weekly benefit ought to be no less than $650.00 weekly.

Mrs. Simpson submits that her claims in the court action deal with two things: supplementary medical expenses and the proper calculation of her IRB—whether vacation pay is included or not. She says those claims are distinct from the claim in this arbitration and she should be entitled to pursue those claims separately. However, in its counterclaim to that action, Trafalgar claims reimbursement of an overpayment of IRBs in the sum of $6,809. An affidavit of Eileen Bagley, a Trafalgar claims representative, sworn April 27, 1998 for this motion, states that this overpayment is calculated "on the basis of the post-accident income received by the Applicant and represented by the pay slips attached to the correspondence [from Mrs. Simpson's lawyer] dated October 22, 1997." At the time the Statement of Claim was issued, Trafalgar was still paying Mrs. Simpson IRBs. By the time the Defence and Counterclaim was delivered, it was not. In the summer of 1997, Trafalgar sent Mrs. Simpson a letter stating that, effective August 15, 1997, unless she provided written notice she wished to be assessed at a DAC and returned a form OCF-14 (Permission to Disclose Health Information to the Assessment Centre), her IRBs would be terminated. Mrs. Simpson responded immediately, agreed to be assessed at a DAC and enclosed the form. She said that the disability DAC was never arranged, and thus according to section 64(3) of the Schedule, Trafalgar must continue to pay her IRBs. Section 64(3) states:

64—(3) The insurer may stop payment of the weekly benefits on or after the date specified in the notice unless the insured person gives the insurer written notice that he or she wishes to be assessed in accordance with subsections (5) and (6).

As time passed in the fall of 1997, Trafalgar continued, nevertheless, to pay Mrs. Simpson her regular IRBs. Trafalgar's representative deposed in her affidavit sworn April 27, 1998, that "[i]t was always the intention of the Insurer to arrange a Disability DAC for the Applicant but through inadvertence and change of staff, this assessment was not arranged earlier." On October 31, 1997, 104 weeks after the accident, Trafalgar sent Mrs. Simpson a letter that both reiterated the Notice of Termination sent in the summer and put forward an alternative proposition. The letter reads as follows:

Dear Mrs. Simpson:

You have received weekly benefits for approximately 2 years from the date of your accident. Under the regulations, persons who are receiving Income Replacement Benefits after 2 years may qualify to receive a Loss of Earning Capacity Benefit.

It is our position that you have not qualified for benefits under Section 7 for some considerable time ...

If you were entitled to an offer, it is our position that the offer would be zero. In your case, we have assessed your:

pre-accident earning capacity at a net weekly income of $671.89 residual earning capacity at the net weekly income of $869.03 loss of earning capacity benefit is $0

.... If this offer is not accepted within 45 days, it will be deemed that this offer is rejected. I have enclosed a copy of the regulations and suggest that you refer to Section 20 to 35 for guidance.

[emphasis added]

With this letter, all weekly benefit payments from Trafalgar stopped. Mrs. Simpson has not received any weekly benefits since October 31, 1997.

Mrs. Simpson earns $12.13 per hour in her work as a linen room attendant at a Toronto hotel and by March 1998 she had returned to work eight hours per day for four days per week. She deposed in her affidavit sworn April 1, 1998, that she worked two full-time jobs prior to the accident to support herself and her husband, who receives a pension of less than $600 per month. Mrs. Simpson deposed that she has borrowed approximately $3,560 from her children since December 1997 and has accumulated about $2,000 in credit card debt. She deposed that one of her daughters has been buying food for her and her husband, at the rate of about $60 per week since the end of November 1997. She deposed that she has never faced such financial circumstances previously and that her and her husband's standard of living has been reduced to an unreasonably low level.

I received a medical report at the pre-hearing that stated Mrs. Simpson reported a significant increase in her low back pain as a result of a two-week RECDAC assessment in April 1998. She claimed she was unable to return to her job after that and her doctor recommended she stay off work for one week, initially. Subsequent documents reveal that she may not have returned to work until June 7, 1998.

Criteria for Interim Benefits Order:

An arbitrator's authority to make interim orders is found in subsection 279(4.1) of the Act which provides as follows:

The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.

Subsection 279(4.1) of the Act is a discretionary provision. Arbitrator Shemin Manji, in her decision in the case of Ioannidis and Canadian General Insurance Group,³ reviewed the principles and criteria for making interim orders. They are as follows:

• Generally an insured person's entitlement to benefits is to be determined after a full hearing of all of the evidence.⁴

• Novel or difficult questions of law should be dealt within a full hearing and not within an interlocutory proceeding.⁵

• Interim benefits are not to be awarded on a routine basis, but only in certain unusual circumstances.⁶

• An interim order, by its very nature, is intended to cover a short period of time between the making of the order and the final order.⁷

• An application for an interim order must be heard in a summary fashion and the order made expeditiously. At the arbitration hearing, after a full hearing of all of the evidence, the arbitrator may well come to the conclusion that a substantially different order should be made.⁸

• An interim order is subject to the final order and an arbitrator may order interim benefits be repaid.⁹

• Subsection 279(4.1) of the Act does not change the onus of proof. The onus of proof remains the insured person's.¹⁰

[Three] criteria have been identified in exercising the discretion in subsection 279(4.1) of the Act:

1• The merits of the case for entitlement. (... )

2• The existence of an element of necessity or urgency,¹¹ or

3• A blatant disregard by the insurer of the Schedule or Act.¹²

As I stated in my recent decision in Tanner and Allstate Insurance Company of Canada,¹³ I agree with Arbitrator Manji that the standard of proof required of the insured person is that she proves a prima facie case for entitlement. With these principles and criteria in mind, I have considered the evidence on this motion for interim benefits. I will look at the third principle first.

Blatant disregard of the Schedule

Trafalgar continued to pay Mrs. Simpson IRBs until October 31, 1997, or 104 weeks after the accident. Their evidence is that they always intended to have Mrs. Simpson assessed by a disability DAC and only through "inadvertence and change of staff" was this not arranged. Trafalgar's letter of October 31, 1997 confirms it took the position that "for a considerable time prior to the second anniversary of the accident" Mrs. Simpson no longer qualified for IRBs.

Trafalgar’s alternative argument is that if she qualified for IRBs at 104 weeks, Mrs. Simpson is entitled to an LEC benefit of zero. Trafalgar submitted that the provisions for termination of IRBs in section 64 operate only until 104 weeks have passed, after the initial onset of disability. Trafalgar also submitted that once an LEC offer has been made, they are no longer obliged to pay IRBs, and according to section 23(8) of the 1995 Schedule, they do not have to pay any amount to Mrs. Simpson pending receipt of the RECDAC report.

I find Trafalgar has not terminated Mrs. Simpson’s IRBs in accordance with the provisions of section 64 of the Schedule by failing to "within 15 days, notify the designated assessment centre," as section 64(8) of the Schedule requires. No disability DAC was held, as Mrs. Simpson requested, as is her right according to the Schedule. The Schedule provides, at subsection 64(12), that unless the report of the DAC states that "the insured person is no longer suffering from a disability resulting from the accident in respect of which the weekly benefits are paid," then Trafalgar "shall pay the benefits" pending the resolution of the dispute.

However, that determination does not end the matter. I accept that an insurer may change its mind after sending an insured person a notice of termination under section 64 of the Schedule. In fact, this happened once before to Mrs. Simpson, in August 1996, but Trafalgar advised her that this notice had been sent in error. In general, a change of mind by an insurer to continue paying weekly benefits should be welcomed as benefitting an insured person. Unfortunately, in this case, Trafalgar did not communicate to Mrs. Simpson in September 1997 their intention to continue her IRBs and confirm it would not be sending her for a disability DAC. Trafalgar just kept sending her cheques for IRBs.

The right to a change of mind is not specifically provided for in this part of the Schedule, but in the past, other arbitrators have considered it permissible for a party to change its mind in such matters.¹⁴ Other sections of the Schedule, such as under subsection 61(7), where an irrevocable decision is contemplated, set this forth in clear language. In contrast, subsection 75(12) specifies affirmatively that insurers which elect to use published tables for all claims may revoke that election and revert to another method. Accordingly, in the context of section 64 of the Schedule, the fact no provision sets out the right of an insurer to a change of mind appears to be a matter of statutory interpretation that involves a consideration of the purpose of section 64 in the total scheme of the Schedule, not just a comparison with other sections describing different elections that can be made in the Schedule.

In this case, I find that the modern approach to statutory interpretation, interpreting legislative provisions in their total context, must permit an insurer to change its mind after sending a notice of termination under section 64. Such an interpretation promotes the legislative purpose of continuing to provide ongoing income replacement benefits to injured persons. It produces a reasonable and just result.¹⁵

In Mrs. Simpson’s case, instead of continuing with the termination under section 64, Trafalgar decided to pursue a second course by making an LEC offer. If this alternate course had been accomplished properly, in my view, the Schedule’s provisions would not have been violated and no prejudice to Mrs. Simpson would have resulted. An insurer is not required to follow the "stoppage of benefits" provisions of section 64 in switching from IRBs to LECs, provided the transition is accomplished correctly. Section 64 clearly says that a stoppage of benefits under the section is "on the ground that the insured person no longer suffers..." from a disability. The stoppage is not because the person has, for example turned age 65 (see section 12) or because he or she has become entitled to LECs. At 104 weeks after the onset of disability, Trafalgar calculated Mrs. Simpson’s pre-accident and residual earning capacities, presumably in accordance with sections 28 to 30 of the Schedule. Trafalgar's conclusion was that Mrs. Simpson's LEC is zero, because her residual earning capacity exceeded her pre-accident earning capacity.

Unfortunately, thereafter, Trafalgar failed to follow the Schedules provisions by failing to continue to pay Mrs. Simpson IRBs until after the RECDAC report was received.

Procedure under section 23

Since Mrs. Simpson did not accept Trafalgar's LEC offer within 45 days, section 23(1) of the Schedule deems that she rejected it. She might then have chosen to file an application for mediation, pending receipt of the RECDAC report, under section 27. No other steps should have been taken apart from this, pending receipt of this report, according to section 23(4). I concur with Trafalgar’s submission that, strictly according to that provision, a motion in this interim period is premature. However, because of the complicated issues between the parties, initiated by Trafalgar's ambiguous letter of October 31, 1997, and their failure to pay interim IRBs, Mrs. Simpson’s pursuit of interim benefits cannot be faulted, particularly where she raises the issue in an arbitration claiming wrongful termination under section 64. She has followed the procedure set out in section 64(13) of the Schedule.

On hearing no acceptance from Mrs. Simpson within 45 days of the LEC offer, according to the clear provisions of section 27(1), Trafalgar should have notified the RECDAC to assess Mrs. Simpson, within 15 days thereafter (i.e. by about December 31, 1997). The RECDAC was not held, however, until April 1998. On the motion, Trafalgar acknowledged its tardiness in these arrangements. I do not know the details of the delay and the issue of delay is not before me.

Interim Payments

Trafalgar submits that it is clear that Mrs. Simpson is not entitled to IRBs once 104 weeks has passed. It submits that section 20(1) of the Schedule mandates that LEC benefits should be paid once they are "authorized," under circumstances where an insured person qualifies for benefits after 104 weeks of disability. Section 20 and 21(1)l. are set out here for convenience:

20.—(1) An insurer shall pay an insured person weekly loss of earning capacity benefits instead of weekly income replacement benefits under Part II, weekly education disability benefits under section 15, weekly caregiver benefits under Part IV or weekly disability benefits under Part V if the payment of loss of earning capacity benefits is authorized by this Part.

(2) A weekly loss of earning capacity benefit under this Part is payable during the lifetime of the insured person and is subject to such adjustments in the amount of the benefit as are provided in this Regulation.

21.—(1) Subject to subsections (7) to (9), an insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning capacity benefits if one or more of the following circumstances occurs:

1. The insured person qualified for weekly income replacement benefits under Part II and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits.

[emphasis added]

Under section 23(8) of the 1994 Schedule, it was clear that "the insurer shall continue to pay benefits under Part II [that is IRBs] ... pending resolution of a dispute under subsection (3) or (4), if the person continues to qualify for those benefits." In the 1995 Schedule the language of subsection 23(8) was changed. References to Part II and to section 15 were dropped. Mrs. Simpson submitted that it is clear by the changes to section 23(5) and the addition of 23(5.1) and (5.2) that the insured person no longer has the right to receive IRBs pending the resolution of the dispute after the RECDAC report. What right does she have? Mrs. Simpson pointed to the Commissioner's Bulletin 29/94 which attempts to clarify the amendments made to the Schedule. With respect to the change in section 23, the Commissioner wrote:

The Loss of Earning Capacity Benefit (LECB) is the benefit paid after two years for persons with a permanent economic loss. Claimants who dispute the amount offered by their insurer continue to receive their initial benefit until the dispute is resolved under the current process. The proposed change is to base the benefit pending the outcome of a dispute on the difference between the benefit payment prior to the LECB offer and the Designated Assessment Centre (DAC) assessment of residual earning capacity. The proposed change would apply to earners and students. All other claimants, would continue to receive their initial benefit (caregiver or disability benefit.).

The status of Commissioner’s bulletins has been discussed in the appeal decision in SM and Markel Insurance Company of Canada (June 15, 1998), OIC P97-00063.

Section 23(5) of the 1995 Schedule says that two weeks after the RECDAC report is received, Trafalgar may commence paying LECs to the insured person, based on its figure for pre-accident earning capacity and based on the RECDAC’s determination of residual earning capacity. Viewed in the total context of the Schedule, this language implies that Trafalgar is paying some other amount until this time. Since by the act of making an LEC offer, it has implicitly accepted that Mrs. Simpson's disability continues, then she continues to qualify for IRBs under the provisions of section 7. This interpretation makes sense, when juxtaposed with section 31 of the Schedule which sets out that no IRBs are payable once LECs begin to be paid to the person "under this Part" or if the amount of LECs "has been determined in accordance with this Part to be zero." If IRBs automatically terminated at 104 weeks, then section 31 would not be necessary. Such an interpretation would not accord with the basic legal principle that all parts of the regulation should be interpreted to have meaning. Section 8 sets out no such automatic termination. Neither would it make sense in the context of an elaborate scheme providing income to injured persons that an insurer could unilaterally determine the amount of LEC to be paid between the LEC offer and the delivery of the RECDAC report.

As I wrote in a recent decision in Fry and Halifax Insurance Company (June 26, 1998), OIC A96-001248:

Section 23 of the Schedule is concerned with procedural disputes about the amount of an LEC offer. Such disputes occur only if an insurer has accepted that an insured person qualified for the offer in the first place, or an order has been made determining entitlement at 104 weeks. The section 23 procedure is invoked only when the dispute has gone beyond the issue of entitlement to an LEC offer to the question of the proper amount of the LEC benefit.

... Subsection 23(8) has no application at this point [in the Fry case, in a dispute over entitlement to IRBs, not LECs].

The LEC provisions of Part VI of the 1995 Schedule speak to at least two distinct periods of time—firstly, the period between 104 weeks and the date of the LEC offer and secondly, the period between the making of an LEC offer and the determination of LEC amount in accordance with sections 279 to 283 of the Insurance Act. Section 23 of the Schedule is concerned with only the second period.

My views on the application of section 23 are supported by reference to some other provisions of Part VI. Section 31 is the "termination" section for IRBs, confirming that once LECs begin to be paid following the provisions of Part VI, other weekly benefits stop. Similarly, if it is determined that the proper LEC is zero, weekly benefits are not payable, according to section 31(b). In addition, as Arbitrator Lawrence Blackman noted in his decision in Z.T. and Missisquoi Insurance Company (December 31, 1997), OIC A96-000735, the special provisions of section 24 of the Schedule, which were not amended for accidents on and after January 1, 1995, allow exceptionally for the payment of LECs instead of IRBs where no LEC offer has been made, when an insured person agrees in writing. By implication, where there is no such agreement, IRBs continue.

[emphasis added]

Accordingly, Trafalgar should have paid Mrs. Simpson IRBs until 14 days after receiving the RECDAC report. Thereafter, LEC benefits should be paid in accordance with section 23(5.1) or 23(5.2) of the Schedule. Interest is payable on these benefits, pursuant to section 68.

This really should be the end of the matter, with respect to interim benefits, because the Schedule provides direction as to what amount is to be paid pending resolution of the dispute between the parties. I anticipate, however, that because the RECDAC has issued a report not setting out a determination of Mrs. Simpson's gross annual income in respect of her residual earning capacity, in accordance with section 30, that the parties may further dispute the amount of benefit that should be paid pending the final resolution of this matter. In my view, this could be resolved, on an interim 'without prejudice' basis, by the DAC or the parties deducing the figures for net weekly income for annual part-time earnings for a Coding Clerk, pending the arbitration in March 1999. The RECDAC did determine that Mrs. Simpson was capable of carrying out this employment. I do not order this, however, since I received no submissions on this issue.

Other Criteria for Award of Interim Benefits

Given my conclusions above, I need not deal with the other two principles, prima facie case and urgency, usually considered on a motion for interim benefits.

Special Award:

Mrs. Simpson has submitted that Trafalgar should pay a special award. Section 282(10) of the Insurance Act mandates special awards where insurers unreasonably withhold or delay benefits. That section is worded as follows:

282.--(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled...shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

I find that Trafalgar has unreasonably withheld Mrs. Simpson’s weekly benefit payments in the period following 104 weeks until two weeks following the RECDAC report, by failing to follow the provisions of the Schedule. It could have continued the termination procedure of section 64 or properly followed the provisions of Part VI, but it did neither. However, I am mindful of the fact that the Schedule’s LEC provisions are complex, that the law is not well settled as to how changes between the 1994 Schedule and the 1995 Schedule should be interpreted, and that there has been little direction or discussion of the interpretation of the LEC provisions by means of Commissioner's Bulletins or Guidelines. The confusion with this part of the Schedule is articulated in a recent court decision by Justice Kozak of the Ontario Court of Justice (General Division).¹⁶ Still, in the termination of Mrs. Simpson's IRBs I do not find that Trafalgar has met the standard of reasonableness expected of an insurer in this system of first-party statutory accident benefits.

I award a lump sum of 10 percent of the amount to which Mrs. Simpson is entitled at the date of my order, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 percent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Resumption of Prehearing Conference:

The parties should contact the case administrator to arrange a resumption of the pre-hearing conference in order to reconsider the issues in dispute between the parties and the consolidation of all proceedings in one forum.

Order:

1. Trafalgar Insurance Company of Canada shall pay weekly income replacement benefits of $613.77 to Pamela Simpson from October 31, 1997 to May 27, 1998 plus interest according to section 68 of the Schedule. Trafalgar Insurance Company may deduct from these income replacement benefits the requisite percentage of net income received by Pamela Simpson in respect of any employment after October 31, 1997, as set out in subsections 10(3) and 10(4) of the Schedule.

2. Trafalgar Insurance Company of Canada shall pay weekly loss of earning capacity benefits to Pamela Simpson from May 27, 1998, ongoing, according to the provisions of subsections 23(5) and 23(5.1) of the Schedule.

3. Trafalgar Insurance Company of Canada shall pay Pamela Simpson forthwith a lump sum special award of 10 percent of the amount to which she is entitled at the date of my order, together with interest on all amounts then owing to her (including unpaid interest) at the rate of 2 percent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

July 16, 1998

K. Julaine Palmer

Arbitrator

Date

Footnotes

1. 1The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94. It is called the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996. In order to distinguish the two versions of the Schedule, where this is important, the terms 1994 Schedule and 1995 Schedule have been used in this decision. 1994 Schedule refers to O.R. 776/93 and 1995 Schedule refers to O.R. 776/93 as amended by O.R. 635/94 and O.R. 781/94.
2. 2RECDAC - a residual earning capacity assessment by a designated assessment centre, as provided by section 26 of the Schedule.
3. 3Ioannidis and Canadian General Insurance Group ( December 21, 1997), OIC A97-001551
4. 4Gomez and Pilot Insurance Company (May 10, 1995), OIC A-013080 and Cripps and AXA Insurance (Canada) ( August 8, 1997), OIC A-013360
5. 5Malabanan and Canadian General Insurance Company (July 26, 1996), OIC A96-00084 and Harkness and Economical Mutual Insurance Company (December 10, 1996), OIC A96-001420
6. 6Gomez, supra, Cobby et al. and Non-Marine Underwriters, Members of Lloyd's London, England (October 13, 1995), OIC A-014259, A-014260 and A-014261, Malabanan, supra, and Cripps, supra
7. 7Malabanan, supra
8. 8Malabanan, supra, and Cripps, supra
9. 9Malabanan, supra, and Cripps, supra
10. 10Gomez, supra, Cobby et al, supra, and Harkness, supra.
11. 11Osbourne and Allstate Insurance Company of Canada and York Fire & Casualty Insurance Company (November 18, 1994), OIC A-009110; Lucas and Dominion of Canada General Insurance Company (March 23, 1995) OIC A-009670; Malabanan, supra; Harkness, supra; and Cripps, supra.
12. 12In Sweete and Jevco Insurance Company (October 24, 1996), OIC A96-000614, the arbitrator relied, in part, on the insurer's violation of its obligations under section 64 of the Schedule to make an interim order for payment of benefits. In Fortney and Lombard General Insurance Company of Canada (December 24, 1997), OIC A97-00553, the arbitrator relied on an egregious breach of section 64 alone to award interim benefits.
13. 13Tanner and Allstate Insurance Company of Canada (May 20, 1998), OIC A95-000616.
14. 14as found by Arbitrator Suesan Alves in her decision in Worthman and Axa Insurance (Canada), (January 30, 1997), OIC A96-000486, at p. 6.
15. 15Bapoo v. Co-operators General Insurance Company, (1997) 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616 (C.A.), at pp. 620-621.
16. 16See Mihichuk v. Allstate Insurance Company of Canada, 1998 CanLII 14674 (ON CTGD), [1998] O.J. No. 897, February 17, 1998.