Amoa-Williams et al. v. Allstate Insurance Company of Canada et al., 1999 ONFSCDRS 142

Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 142

FSCO/OIC: A97-001864, A98-000238, A98-000209, A98-000324, A99-000063, A98-001295, A97-002146, A97-001776, A98-000022

BETWEEN:

Seth and Ama Amoa-Williams Shahram Asadi-Dehdezi Felice and Immacolata Colangelo Giuseppe Gatto Thomas Gordon Henderson Luigi Rosvelti Haeideh Sherkat Blanka Simeckova Kourosh Yektamanesh Applicants

and

Allstate Insurance Company of Canada State Farm Mutual Automobile Insurance Company Insurers

DECISION ON A PRELIMINARY ISSUE

Before: Deena Baltman

Heard: July 12, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Theodore P. Charney for Mr. and Mrs. Amoa-Williams, Mr. Asadi-Dehdezi, Mr. and Mrs. Colangelo, Mr. Gatto, Mr. Henderson, Mr. Rosvelti, and Ms. Simeckova Robert Franklin for Mr. Yektamanesh and Ms. Sherkat Roland Spiegal for Mr. Yektamanesh (regarding DEAHY account) Ian D. Kirby for Allstate Insurance Company of Canada and State Farm Mutual Automobile Insurance Company

Issue:

This is a motion brought by the Insurers, Allstate Insurance Company (Allstate) and State Farm Mutual Automobile Insurance Company (State Farm), under Rule 30 of the Dispute Resolution Practice Code (the Code), requesting that the proceedings in all nine cases listed above be combined or heard at the same time.

Mr. Kirby acts for both Insurers. Mr. Charney acts for Mr. and Mrs. Amoa-Williams, Ms. Simeckova, Mr. Asadi-Dehdezi, and Mr. Rosvelti. He also, for the purposes of this motion, attended as agent on behalf of Mr. Louis Mostyn, who represents Mr. Gatto, and Mr. Ric Fleury, who represents Mr. and Mrs. Colangelo and Mr. Henderson.¹ Mr. Franklin is counsel for Mr. Yektamanesh and Ms. Sherkat. Mr. Spiegal represents Mr. Yektamanesh solely with respect to a claim for services provided by DEAHY Medical Assessments Inc.

The preliminary issue is:

Should the proceedings in these cases be combined or heard at the same time?

Result:

The proceedings in these cases should not be combined or heard at the same time.

REASONS:

Background:

The nine cases involved in this motion arise from nine distinct accidents and comprise, in total, eleven Applicants. All the Applicants received treatment from the Rehab Target Centre and/or the Sheppard-Leslie Chiropractic Clinic (the clinics). Although the precise details of their relationship is unclear, the clinics are allegedly affiliated in some manner. Allstate and State Farm (the Insurers) have refused to pay for most of the treatments provided by the clinics. In each case the Insurers dispute the reasonableness and necessity of treatment provided by the clinics.

The cases were originally scheduled to be heard consecutively throughout the months of June, July, August, and September, with the first, Amoa-Williams, scheduled for June 28 and 29, 1999. Shortly before the Amoa-Williams hearing began, it became apparent that the parties were unclear as to whether the cases were being combined, heard one after the other by the same arbitrator, or dealt with in some other manner. A further pre-hearing was convened, at which the Insurers requested that the proceedings be combined and heard by one arbitrator. As the Applicants opposed this motion, the issue was scheduled to be heard as a preliminary hearing. The Amoa-Williams hearing was adjourned pending the outcome of this motion.

Rule 30 of the Code states:

30. COMBINING APPLICATIONS

30.1 Where two or more Applications for Arbitration have been filed and it appears that:

(a) they have an issue or question of law, fact, or policy in common; or

(b) the application of this Rule will result in the quickest, most just, and least expensive means to deal with the Applications;

The Commission will notify the parties that an arbitrator may order that:

(c) the proceedings be combined;

(d) the proceedings be heard at the same time;

(e) the proceedings be heard one immediately after the other;

(f) the proceedings be stayed until the determination of any one of them;

(g) evidence presented in one proceeding will be applied in another proceeding; or

(h) an order or decision made with respect to one proceeding be applied to the other proceeding.

30.2 If a party objects to an order made under this Rule, the party must notify the Commission and the other parties involved, in writing, of the objection.

30.3 The arbitrator may make an order under this Rule on such terms as he or she considers just.

Discussion:

The Insurers argue that all the cases involve a common question of law and fact, and therefore should be combined or heard together by the same arbitrator. All the cases, save one, have as their sole issue whether the treatments provided by the clinics were reasonable and necessary. The only exception is Yektamanesh, which also includes a claim for income replacement benefits (IRBs).

The Insurers note that in each case, Target provided numerous treatments referred to as "therapeutic exercise," at the cost of $150 per session. The Insurers allege that this fee is excessive, given the services provided and the qualifications of the therapists. They agree that because the cases involve nine separate accidents and eleven Applicants, the injuries and therefore the duration of treatment may vary considerably from case to case. However, they argue, in all cases the central issue will be whether the clinics were justified in charging $150 per session for what is consistently referred to as "therapeutic exercise."

The Insurers point to two other issues common to all these cases. First, in each case the Applicants seek interest on the outstanding account. Because none of the accounts has been paid, the Insurers argue that no expense has been incurred, and therefore interest should not accrue. Second, the majority of these cases arise under Bill 59, which requires that health providers must disclose any conflict of interest when preparing treatment plans. The Insurers allege that the relationship between the clinics creates a conflict of interest, and that none of the clinic providers who prepared treatment plans disclosed any such conflict.

The Insurers also submit that consolidating the cases will result in a faster, more just, and less expensive disposition. If all the cases are heard as part of the same hearing, some of the witnesses will only need to testify on one occasion, saving time and expense. Only one arbitrator will need to be apprised of the details regarding the service and fee structure offered at the clinics. Moreover, one decision avoids the possibility of inconsistent results, or "arbitrator shopping" in the future. They suggest that such practices "reflect badly on the Commission."

Findings:

I am not persuaded that these cases should be consolidated or heard together, for several reasons. These cases do not raise a pure legal issue, which turns solely on statutory interpretation. Rather, the issues raised are ones of fact, or, at most, mixed fact and law. As such, the evidence may vary considerably from case to case. The files involve eleven Applicants with a variety of injuries arising from nine different accidents. The medical evidence suggests that some of the injuries were serious or complex. Each case necessitates an individual inquiry into the Applicant's pre-accident medical history, what injuries resulted from this accident, and consequent treatment needs. Each Applicant will require a significant portion of hearing time in order to properly present his or her claims. What is reasonable and necessary treatment in one case may not be in another.

The Insurers argue that the main inquiry in all the cases is a simple and narrow issue: Were the clinics justified in charging $150 per session for "therapeutic exercise"? I find that the question of rates cannot be looked at in a vacuum. What did the "therapeutic exercise" consist of in each case? Who provided it and what were their credentials? What fee guidelines are relevant? How long did each treatment session last? Was the Applicant under the direct supervision of the therapist throughout the session? Did the Applicant require that treatment or would another, less expensive treatment have sufficed?

I recognize that part of the dispute in each case turns not on the individual claimant but on the common issues referred to above — whether the clinics overcharged for their services, whether interest is payable, and the alleged conflict of interest. This may require that some evidence will have to be repeated in successive hearings. But the alternative is worse. Many of the cases involve the same medical experts and treatment providers. If the cases are consolidated or heard together, those witnesses might, on the one occasion they attend, have to testify and be cross-examined about eleven different claimants. It will be staggeringly difficult for witnesses and counsel to prepare for such a marathon, not to mention a challenge for the arbitrator to keep track of who said what about whom. Moreover, Applicants and their counsel would be forced to sit through portions of evidence that have no bearing on their case.

The Insurers suggest an alternative approach, whereby the same arbitrator hears all the cases successively. In this scenario, where common issues arise, the arbitrator can direct that evidence presented in one proceeding will be applied in another. The difficulty with this approach is that decisions in all the cases will be delayed until the last hearing is completed. This could prolong resolutions unduly.

Moreover, for reasons I outlined above, it is not clear that much of the evidence in any one hearing is relevant to another. To the extent that the treatment rate in dispute turns on the individual characteristics of any particular case, Applicants' counsel may object to it being applied elsewhere. Thus few economies may be achieved.

I prefer the approach agreed to by all Applicants' counsel, namely to have one case proceed to a full hearing as soon as possible. That decision may then provide guidance for future cases. This may also allow the parties in any pending cases to reconsider their positions and explore settlement options on the basis of the findings made by the first arbitrator.

Alternatively, if the parties believe that the first decision is incorrect or not applicable to their fact situation, they can proceed to a hearing. I do not agree that this will inevitably lead to inconsistent decisions or "arbitrator shopping." If the facts in a later case are sufficiently distinct, a different decision may be fitting. If the facts are similar but lead to a different decision, this may reflect the evolution of jurisprudence that is inevitable whenever a new issue arises within a tribunal. Although parties are entitled, within reason, to expect guidance and consistency from this tribunal, the Supreme Court of Canada has stated that administrative tribunals should develop consensus over time, rather than being strictly bound by precedence. In Tremblay v. Quebec (Commission des affaires sociales)(1992), 1992 CanLII 1135 (SCC), 3 Admin. L.R.(2d) 173 at 217, [1992] 1 S.C.R. 952 at 974, Mr. Justice Gonthier stated:

Ordinarily, precedent is developed by the actual decision makers over a series of decisions. The tribunal hearing a new question may thus render a number of contradictory judgments before a consensus naturally emerges. This of course is a longer process; but there is no indication that the legislature intended it to be otherwise.

For these reasons I find that the most just and economical solution is to adjourn the proceedings in all these cases, pending the determination of the Amoa-Williams case. It makes sense for Amoa-Williams to proceed first, for several reasons. It is fully prepared and ready to go, having been adjourned on the eve of hearing only because of this motion. It has the fewest extraneous issues and therefore can be dealt with more efficiently than some of the other cases. Some of the witnesses scheduled to testify would likely reattend in any future hearings; their testimony in Amoa-Williams may shed some light on how their evidence may be received in later cases.

To the extent possible, it would be helpful if the arbitrator hearing Amoa-Williams can expedite the decision, so that the disposition of the remaining cases is not delayed unduly. Following release of that decision, the parties on the remaining cases may wish to ask the Commission to assist them in settlement discussions.

After the Amoa-Williams case is heard, another arbitrator may, with the benefit of the evidence led in that case, have a better sense as to whether the remaining cases should be heard in a different manner from what I have directed. Consequently, another arbitrator may vary this order under Rule 30, on his or her own initiative or upon motion by the parties. In the meanwhile, any hearings previously scheduled are adjourned pending determination of the Amoa-Williams case. Counsel in the Amoa-Williams case will supply the case administrator with proposed hearing dates within seven days.

EXPENSES:

The expenses of this motion are reserved to the hearing arbitrator(s).

July 21, 1999

Deena Baltman Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 142

FSCO/OIC: A97-001864, A98-000238, A98-000209, A98-000324, A99-000063, A98-001295, A97-002146, A97-001776, A98-000022

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

Seth and Ama Amoa-Williams Shahram Asadi-Dehdezi Felice and Immacolata Colangelo Giuseppe Gatto Thomas Gordon Henderson Luigi Rosvelti Haeideh Sherkat Blanka Simeckova Kourosh Yektamanesh Applicants

and

Allstate Insurance Company of Canada State Farm Mutual Automobile Insurance Company Insurers

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Insurers' motion to have these cases combined or heard at the same time is dismissed.

2. Any hearings previously scheduled are adjourned pending determination of the Amoa-Williams case.

3. Counsel in the Amoa-Williams case will supply the case administrator with hearing dates within seven days.

4. The expenses of this motion are reserved to the hearing arbitrator(s).

July 21, 1999

Deena Baltman Arbitrator

Date

Footnotes

1. 1I initially advised counsel that I would not deal with the Colangelo, Gatto or Henderson files, as their counsel were not present. Mr. Charney advised that although he expected to be retained very shortly on those files, he had not yet received signed retainers from the Applicants, and therefore did not consider himself formally retained. It later became apparent, however, that Mr. Fleury and Mr. Gatto had been served with the motion and instructed Mr. Charney, as agent, to convey their respective positions, which were essentially identical to what he was advancing for his clients. I therefore agreed that any orders made would be binding on those files as well.