Neutral Citation: 1999 ONFSCDRS 89
FSCO A97-001844
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOHN ARMSTRONG
Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
M. Kaye Joachim
Heard:
By telephone conference call on May 5, 1999.
Appearances:
Robert Ipacs for Mr. Armstrong
Susan E. Gunter for Personal Insurance Company of Canada
Issues:
The Applicant, John Armstrong, was injured in a motor vehicle accident on May 25, 1995. He applied for statutory accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.1 Personal denied caregiver benefits. The parties were unable to resolve their disputes through mediation, and Mr. Armstrong applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Should Mr. Armstrong's application be dismissed because of his failure to attend a preliminary hearing scheduled for April 19, 1999?
Result:
- Mr. Armstrong's application is not dismissed. The preliminary hearing is adjourned to June 10, 1999.
EVIDENCE AND ANALYSIS:
A preliminary hearing was scheduled for April 19, 1999 to determine whether Mr. Armstrong is disentitled to caregiver benefits because he failed to comply with the notice provisions under section 59 of the Schedule. The Insurer's counsel attended on the date scheduled, prepared to proceed. Neither Mr. Armstrong or anyone appearing on his behalf attended the preliminary hearing. I adjourned the preliminary hearing, pending a determination whether the Applicant had a reasonable excuse for failing to attend on April 19, 1999.
Mr. Armstrong was injured in a motor vehicle accident on May 25, 1995. At the time of the accident Mr. Armstrong was receiving long-term disability benefits because of a psychiatric disability. Following the accident he applied for caregiver benefits which were denied, in part, on the basis that he failed to deliver a completed application within 90 days of being provided with one, without a reasonable excuse.
The dispute proceeded to mediation, at which time Mr. Armstrong was represented by Mr. Algis Pace of the law firm of Pace, Johnson. On October 16, 1997, Mr. Armstrong filed an Application for Arbitration. At that time, he was represented by Ms. Marlett Dobson of the same law firm. At the pre-hearing held on April 27, 1998, Mr. Armstrong continued to be represented by Ms. Dobson. Hearing dates of June 7, 8, 9, and 10, 1999 were set. The parties were advised to contact the Commission to set dates for a preliminary hearing to determine whether Mr. Armstrong was disentitled to benefits because he had failed to comply with the notice provisions of section 59 of the Schedule. A date of April 19, 1999 was set for the preliminary hearing, and written notice was sent to the Applicant at his last known address, and to the law firm of Pace, Johnson.
Following the pre-hearing, Counsel for the Insurer wrote to Ms. Dobson at Pace, Johnson in August 1998, following up on her requests for production. Ms. Dobson wrote to Mr. Armstrong in October 1998 asking him to provide authorizations for the requested productions. Mr. Armstrong did not respond. Ms. Dobson left the firm of Pace, Johnson in the fall of 1998 and the file was not reassigned to someone else. Counsel for the Insurer wrote to Ms. Dobson at Pace, Johnson again in December 1998, February 1999, and April 1999, but received no response. This correspondence did not make its way into Mr. Armstrong's file at the firm. No further activity occurred in his file since Ms. Dobson's letter to Mr. Armstrong in October 1998.
Neither Mr. Armstrong nor a representative from Pace, Johnson attended at the preliminary hearing on April 19, 1999.
On May 5, 1999, a telephone conference call was held to hear the Applicant's submissions concerning his failure to attend on April 19, 1999. Mr. Armstrong continued to be represented by Pace, Johnson through Mr. Robert Ipacs who took carriage of the file when he returned from vacation following the April 19, 1999 preliminary hearing. Mr. Ipacs attempted to contact Mr. Armstrong at his last known addresses, to no avail. Mr. Armstrong eventually contacted the law firm and made contact with Mr. Ipacs on Sunday, April 30, 1999. Mr. Armstrong advised that he previously had no fixed address but had recently returned to his parent's home to look after his elderly father and could be contacted there.
I was advised by the parties that Mr. Armstrong has been receiving disability benefits through his former employer since approximately 1993, for a psychiatric condition. I was also advised that Mr. Armstrong has had no fixed address for some time, as he was living either in hotels, homeless shelters, or with relatives.
In light of Mr. Armstrong's undisputed psychiatric condition, and his lack of a fixed address, he may not have had actual notice of the preliminary hearing. As a result of his condition, he may have simply been unaware of the proceeding. In these circumstances, I decline to dismiss this application despite his failure to attend at the preliminary hearing of April 19, 1999.
The hearing dates of June 7, 8 and 9, 1999 are adjourned. The date of June 10, 1999 will be retained to hear the previously scheduled preliminary issue: whether the Applicant is disentitled from receiving caregiver benefits because he failed to comply with the notice provision under section 59 of the Schedule.
EXPENSES:
The Insurer sought its expenses of the preliminary hearing of April 19, 1999. The conduct of the Applicant, compounded by his counsel's inaction, have resulted in unnecessary and avoidable expense to the Insurer. While Mr. Armstrong's conduct may be understandable in light of his psychiatric condition and lack of a fixed address, his law firm's actions are inexcusable. Having lost track of its client, misplaced correspondence relating to his file, and failing to attend at a scheduled hearing, the law firm is directly responsible for the Insurer's expenses. However, I have no jurisdiction to make an expense order against an applicant's representative.2 In all the circumstances, I defer the issue of the expenses of the preliminary hearing to the hearing arbitrator.
May 14, 1999
M. Kaye Joachim
Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 89
FSCO A97-001844
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOHN ARMSTRONG
Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Armstrong's application is not dismissed. The preliminary hearing is adjourned to June 10, 1999.
The Insurer is entitled to its expenses of April 19, 1999 and May 5, 1999.
May 14, 1999
M. Kaye Joachim
Arbitrator
Date
Footnotes
- 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.
- Tallis and Royal Insurance Company of Canada (OIC A-007109, May 1, 1995).