Neutral Citation: 2000 ONFSCDRS 62

FSCO A98–000747

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIO ALOISE

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

January 17, 18, and 19, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Renato P. Fellin for Mr. Aloise

Albert M. Conforzi for Lombard General Insurance Company of Canada

The Applicant, Mario Aloise, was injured in a motor vehicle accident on June 6, 1995. He applied for and received statutory accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule.¹ Lombard initially paid Mr. Aloise income replacement benefits of $604 per week, based on the salary information supplied by the employer. This was later increased to $735.40 per week upon the receipt of a letter from his employer confirming Mr. Aloise's commissions for the period in question.

Lombard terminated weekly income replacement benefits on September 18, 1997, relying on the results of a DAC performed at Mt. Sinai Hospital which concluded that Mr. Aloise was able to perform the essential tasks of his employment. Mr. Aloise objected to the findings of the DAC, and to the cut-off of benefits. The parties were unable to resolve their disputes through mediation, and Mr. Aloise applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").

Issues:

The issues in this hearing are:

1. Is Mr. Aloise entitled to receive a weekly income replacement benefit from September 18, 1997, and ongoing, pursuant to section 7 of the Schedule, on the basis that he suffers a substantial inability to perform the essential tasks of his employment?

2. What is the amount of the weekly income replacement benefit that Mr. Aloise is entitled to receive pursuant to section 10 of the Schedule?

3. Is Mr. Aloise entitled to supplementary medical expenses for physiotherapy treatments claimed pursuant to paragraph 36(1) of the Schedule?

4. Is Lombard liable to pay Mr. Aloise's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

5. Is Mr. Aloise liable to pay Lombard's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Mr. Aloise is not entitled to receive weekly income replacement benefits from September 18, 1997.

2. The amount of the income replacement benefit to be received by Mr. Aloise is nil.

3. Mr. Aloise is not entitled to supplementary medical expenses for physiotherapy treatments.

4. Lombard is not liable to pay Mr. Aloise's expenses.

5. Mr. Aloise is required to pay $4,000 as expenses to Lombard under section 282(11) of the Insurance Act.

Production Issues:

Mr. Aloise and his counsel participated in a pre-hearing discussion at the Financial Services Commission of Ontario ("Commission") on September 10, 1998. The pre-hearing letter, dated September 16, 1998, indicates that "The parties have had an opportunity to review and exchange production of documentation amongst themselves."

Lombard alleges that there was an agreement between the parties, arising out of the pre-hearing to produce a variety of documents and notes and records relating to Mr. Aloise's claim for benefits. It relies on a letter from Marla Cox, then of Hughes, Amys, dated September 22, 1998, and received by the Commission on September 25, 1998, reviewing the list of documents to be produced. These include, inter alia, a decoded OHIP summary, clinical notes and records of all treating physicians, any WCB file, certified copies of his income tax returns for three years prior to the accident, his employment file, pay stubs, copies of the collateral benefit policies, and particulars of the chiropractic expenses claimed.

Ms. Cox, and Albert Conforzi, her successor on the file, on behalf of Lombard, reiterated the need for Mr. Aloise to produce the material requested in the ensuing 16 months.

The hearing in this matter was originally scheduled for October 18, 1999. Prior to the hearing date, Mr. Aloise requested an adjournment since his counsel was no longer practising and could not appear for him. The adjournment was granted for Mr. Aloise to obtain new counsel. In a letter to the Commission dated October 14, 1999, concerning the request for adjournment, Mr. Conforzi, on behalf of Lombard, reiterated the need to deal with outstanding productions.

By letter to the Commission dated November 11, 1999, Mr. Aloise advised the Commission that Mr. Fellin was once again practising law and would represent him at the arbitration hearing. Mr. Aloise did not refer, however, to any of the production requests made by Lombard. It would appear, as well, that Mr. Fellin did not advise Lombard that he was, once again, representing Mr. Aloise, since Mr. Conforzi sent a further letter to the Commission on December 21, advising that "Mr. Aloise was granted an adjournment in this matter so that he could retain new counsel. We have not been advised of any new counsel having been retained..." Mr. Conforzi went on to reiterate the need to address the outstanding production requests. The letter indicates on the last page that a copy was sent to Mr. Aloise.

With the exception of the notes and records of Dr. Seymour Tozman, which were provided on the eve of the arbitration hearing, and some pay stubs which were tendered as part of Mr. Aloise's examination-in-chief, none of these documents were produced by Mr. Aloise. Section 32 of the Dispute Resolution Practice Code ("Practice Code”) provides for the exchange of documents between parties. The obligation to exchange documents that are reasonably necessary to determine the issues being arbitrated commences prior to the pre-hearing and continues throughout the process. Section 32.4, as well, provides that an arbitrator may order the production of any document or information.

Lombard alleges that an agreement was made at the pre-hearing to produce certain documents. This would be consistent with Arbitrator Leitch's comment that the parties reviewed production amongst themselves, and the lack of any production order. Lombard points to a letter written on September 22, 1998, and copied to the Commission, from Marla Cox of Hughes, Amys which begins: "Further to our attendance at the arbitration pre-hearing of this matter on September 10, 1998, we confirm that you will produce the following documents as soon as possible." Clearly, Ms. Cox was of the opinion that agreements had been made to produce certain documents, and wrote her confirming letter with that in mind.

Mr. Aloise, through his counsel, raises two points. He denies that he agreed to produce the documents in question, unless Lombard first reinstated Mr. Aloise's benefits. In addition, he insists that the majority of the documents were made available to the original adjuster on the file, Mr. John D'Arcy, and did not need to be produced again.

The first response raises a serious issue of credibility. Either Ms. Cox is right, and there was an agreement to produce, or Mr. Fellin is right and there was no agreement. The comments of the pre-hearing arbitrator suggest that parties did agree on production. Ms. Cox wrote a confirming letter outlining the agreed productions. There is no correspondence on file from Mr. Fellin challenging Ms. Cox's assumptions about production. Mr. Fellin suggested that he may have replied by telephone to challenge Ms. Cox's assumptions about a production agreement, but when invited to produce telephone records, notes or any documents confirming such a conversation, he was unable to produce any.

When Mr. Fellin raised the possibility of a conversation with Ms. Cox that confirmed his objections to the production requests, Lombard obtained an affidavit from Ms. Cox (Exhibit 8) in which she denied having agreed to productions contingent upon reinstatement, and in which she reiterated her belief that the letter of September 22, 1998 accurately reflects the agreement as to production between the parties. Exhibit "B" to the affidavit of Ms. Cox consists of a letter dated October 5, 1998 in which she confirmed the content of their telephone conversation of September 28, 1998. Ms. Cox wrote: "We recently provided you with the list of required productions and confirm that you have advised that you will attempt to obtain them as soon as possible."

I note that Ms. Cox's initial request for the production was followed by this and others from her firm, up and until the month of the arbitration itself. It seems odd that if a solicitor believed that the content of a confirming letter from another solicitor was erroneous, he would not take some step to correct the misinformation at the earliest possible opportunity. Mr. Fellin's apparent silence and inaction on this matter suggests strongly that he did indeed agree to produce the documents requested.

The second argument, that the documents were produced to Mr. John D'Arcy, the original adjuster on the file, is simply not credible. The first document requested is a decoded OHIP summary. I find it hard to believe that Mr. Aloise would have had this document available to hand to Lombard's representative when the claim was initially adjusted.

Likewise, the clinical notes and records for all treating physicians would have had to be requested and paid for by the requesting party. There is no evidence that this was done. Mr. Aloise has provided no evidence in support of his claim that these documents were provided to Mr. D'Arcy, nor even copies of correspondence in which he might have raised this issue at an earlier date. As noted previously, Mr. Aloise appears from the record not to have been shy in corresponding with Lombard, and it seems odd that he would not raise such an important matter as this in his correspondence.

I find that Mr. Fellin, on behalf of Mr. Aloise, agreed at the time of the pre-hearing to produce the documents outlined in the letter dated September 22, 1998 from Marla Cox. I find, as well, that these documents were necessary to the determination of the issues in dispute in this matter. Consequently, the failure of Mr. Aloise to produce the notes and records of his family physicians, a decoded OHIP summary, and the documents listed in the letter from Ms. Cox, brings these matters squarely into the domain of Section 32.5 of the Practice Code, which deals with the failure to produce documents. I find that it is appropriate to make an adverse inference in all cases where such information has been either withheld by Mr. Aloise, or not obtained by Mr. Aloise in breach of an agreement to produce such documents.

EVIDENCE AND ANALYSIS:

The Applicant, Mr. Aloise, testified on his own behalf at the hearing. In addition, two document briefs prepared by the Insurer and six other documents were filed as exhibits. Lombard called no witnesses at the hearing.

The bulk of Mr. Aloise's case concerns his claim for the payment of ongoing income replacement benefits. In order to qualify for these benefits, Mr. Aloise must establish on the balance of probabilities that he meets the statutory requirements for the payment of these benefits.

Section 7(1) of the Schedule provides that:

An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.

To substantiate his claim for statutory accident benefits, Mr. Aloise must, therefore, lead evidence demonstrating that:

1. There was an accident.

2. He suffered an impairment resulting from that accident.

3. He was employed prior to the accident, or otherwise met the criteria of section 7 of the Schedule.

4. The impairment prevented him from performing the essential tasks of his employment, and continued to prevent him at the time that benefits were discontinued.

There is no disagreement between the parties concerning the accident itself. According to the original Application for Accident Benefits (Exhibit 1, Tab 3), Mr. Aloise hit a concrete abutment under an overpass, after swerving to avoid an oncoming vehicle.

The balance of the elements of the claim remain, however, the subject of considerable controversy between the parties.

Employment:

Although for the purposes of a claim for statutory accident benefits, a person may be considered "employed" if he was either self-employed, or employed by a third party, Mr. Aloise claimed only to have been employed as a salaried worker, at a base salary with commissions on sales. His claim was that he was employed at Tempo Marble and Granite Ltd. ("Tempo Marble") for some six months prior to the accident.

Lombard paid income replacement benefits based on an Employer's Confirmation of Income Form (Exhibit 1, Tab 2) signed by Larry Anderson, who listed his position as general manager.

Mr. Anderson listed Mr. Aloise's latest job title as "sales manager" and described his work as "design-delivery of samples and sales and talking with clients at job sites and helping." Mr. Anderson also wrote letters to the Insurer outlining commissions paid to Mr. Aloise, and mentioning attempts by Mr. Aloise to return to work.

Mr. Aloise also testified about his work at Tempo Marble. He mentioned that he had started work there, after a lengthy absence from the workplace, between 1992 and 1995, following the sale of his own marble business.

Lombard asked Mr. Aloise to provide further documentation of his employment at Tempo Marble. At the pre-hearing, Mr. Fellin agreed to provide certified copies of Mr. Aloise's income tax returns, a copy of the employer's file, and Mr. Aloise's pay stubs from the four weeks prior to the accident. These were not provided, although Mr. Aloise sought to introduce documents he claimed to be the pay stubs as part of his examination-in-chief at the hearing. Lombard objected to this, and I ruled that the documents should be excluded pursuant to section 36.4 of the Practice Code.

Lombard challenged Mr. Aloise's employment with Tempo Marble prior to the accident. It suggested that it was strange that, after a prolonged absence from the workforce, which it claims was due to Mr. Aloise's health problems, Mr. Aloise suddenly found profitable and strenuous employment in the six months prior to the accident.

Lombard initially paid weekly benefits on the basis of the information supplied by Mr. Aloise, but it argues that even this documentation is now suspect.

In cross-examination of Mr. Aloise, he confirmed the information contained in the letters from Tempo Marble dated May 21, 1997 (Exhibit 1, Tab 11), September 18, 1997 (Exhibit 1, Tab 16) and October 24, 1997 (Exhibit 1, Tab 21) which indicate that Mr. Aloise worked "for the past week" (May 14-21, 1997) and from September 9, 1997 to September 18, 1997, and could not manage his normal work.

Mr. Aloise participated in a work hardening programme performed by Work Able Centres Inc. ("Work Able"). The discharge summary, dated May 16, 1997 (Exhibit 2, Tab 22), indicates that he attended 17 sessions at Work Able prior to his discharge on May 16, 1997. The report indicates that on May 15, Mr. Aloise was in attendance and reported numerous pains, and difficulty walking. He was interviewed:

...regarding going back to work and went on to add, "It's my back and shoulder... I can't (go back to work)"

The letter from Larry Anderson at Tempo Marble also listed Mr. Aloise as having worked there May 15. I find it unusual that on being asked a question by Work Able during the work hardening programme, about a return to work, Mr. Aloise did not mention that he was currently working at Tempo Marble, and indeed had spent several hours there on the very same day. When asked at the hearing about this discrepancy, Mr. Aloise replied: "Probably, I went in the afternoon, a few times I went in the afternoon." Since Mr. Aloise's own recollection is so vague, and Mr. Anderson's assertion is in conflict with the attendance records of the work hardening clinic, I find it likely that Mr. Aloise did not work at Tempo Marble on the days alleged by Mr. Anderson.

Mr. Aloise testified that he had operated a business in partnership with his brother, Peter. He also testified that his brother now worked with Tempo Marble. However, when he was asked about Peter Aloise's position at Tempo Marble, or whether Peter had an interest in Tempo Marble, Mr. Aloise replied: "If he is part-owner or Larry (Anderson) part-owner, I can't say." In response to further questioning, Mr. Aloise was evasive when asked to name the owners of Tempo Marble.

As mentioned previously, Mr. Aloise did not submit either his tax records, verifying his employment income, the employer's file from Tempo Marble, nor did he call the employer to testify on his behalf. The only evidence connecting him to employment at Tempo Marble is his own testimony and the letters from Tempo Marble signed by Larry Anderson. I have not found Mr. Aloise to be a credible witness at all in this hearing, and I discount his testimony. As well, the discrepancy concerning dates worked, and the employer's letters indicating a shifting definition of Mr. Aloise's work description raise serious questions in my mind about the reliability of any evidence attributed to Mr. Anderson.

I am asked by Lombard to draw an adverse inference from Mr. Aloise's failure to produce his employment and tax records, as agreed. The inference in this case is that the documents, if they exist, do not substantiate Mr. Aloise's claim to be employed by Tempo Marble.

Even if Mr. Aloise received money from Tempo Marble, such payments could be consistent with any number of economic relationships, from that of a creditor to a part-owner, or, indeed an independent sub-contractor. Without the necessary employment documentation, a finding that Mr. Aloise was a regular, paid employee of Tempo Marble, as he asserts, would be speculative.

Mr. Aloise was given the opportunity to call a representative of Tempo Marble at the hearing, and he did not. In the face of this and the refusal to produce employment records, the credibility problems of the letters from Mr. Anderson, and Mr. Aloise's own evasiveness in testimony, I cannot accept Mr. Aloise's assertion that he was an employee of Tempo Marble.

Mr. Aloise, as well, presented no evidence that would support a conclusion that he was self-employed, or engaged in any other activity that would permit him to be considered "employed" for the purposes of the Schedule. While there may have been some sort of relationship between Mr. Aloise and Tempo Marble, I find no persuasive evidence that Mr. Aloise was an employee of Tempo Marble for the purposes of a claim for accident benefits under the Schedule, as he has claimed.

I find, therefore, that Mr. Aloise has failed to prove on the balance of probabilities that he was employed by Tempo Marble in the six months prior to the accident.

In the event that I am wrong, I will examine the remaining elements of Mr. Aloise's claim.

Essential Tasks of His Employment:

Mr. Aloise testified about his activities at Tempo Marble. He characterized the work as dangerous and physical. He testified about work with countertops, and the difficulties of moving heavy samples of the product to show to customers. He mentioned that he would be lifting heavy pieces of marble on a daily basis.

This contrasts substantially with the employer's statement in the Employer's Confirmation of Income (Exhibit 1, Tab 2) in which Mr. Anderson identifies Mr. Aloise's work as "sales manager", and identifies his essential tasks as "design-delivery of samples and sales and talking with clients at job sites and helping." The only portion of this job description that could possibly mesh with Mr. Aloise's characterization of the work as "physical" is the ambiguous "helping."

I found Mr. Aloise's testimony about his work at Tempo Marble to be neither credible nor convincing, and prefer to look to the documentary evidence for any confirmation of the nature of his work.

In a letter dated March 14, 1997 (Exhibit 1, Tab 18), Mr. Anderson spoke of a return to work by Mr. Aloise. In that context, he stated: "Due to his injury he was unable to lift 50 lb. boxes and was complaining of back ache and dizziness.... "

On May 21, 1997 (Exhibit 1, Tab 11), Mr. Anderson wrote again in support of Mr. Aloise:

Please note that the position that we are holding for Mario is very dangerous and unless he has full health we have no other position for him.

In a subsequent letter dated September 18, 1997 (Exhibit 1, Tab 16), Mr. Anderson further re-defines Mr. Aloise's tasks.

He cannot lift the boxes of marble and granite, he cannot lift cut to size marble and granite pieces to take to job sites, he cannot make templates and install kitchen countertops due to average weight being 120 lb. and up.

As the claim progressed, it became more apparent that Tempo Marble's job description evolved as well into one involving increasingly physically demanding tasks. From someone required only to talk, manage, and perform design-delivery functions, Mr. Aloise was gradually transformed into a physical worker, manhandling and cutting stone, in a dangerous work environment.

A reading of Mr. Anderson's letters concerning Mr. Aloise conveys the impression that he is at least advocating vigorously for Mr. Aloise's claim, and perhaps tailoring the job descriptions to his view of Lombard's requirements.

Since the same person, Larry Anderson, is the source of the conflicting descriptions, and since I have already observed that Mr. Aloise may enjoy an ambiguous economic relationship with Tempo Marble, I prefer to accept the earliest description of Mr. Aloise's essential tasks contained in the Employer's Confirmation of Income form (Exhibit 1, Tab 2) as the best description available of Mr. Aloise's work with Tempo Marble. Due to its early creation date, this description is less likely to have been influenced by the ongoing demands of the claim process.

I find, therefore, that Mr. Aloise's duties at Tempo Marble, if any, were primarily of the sales and design nature. While he may not have been "employed" by Tempo Marble for the purpose of the Schedule, I find that any services he provided were in the nature of sales, design and promotion. This would have been consistent, as well, with what little is known of the state of Mr. Aloise's health prior to the accident, which likely precluded the heavy physical work referred to by Mr. Anderson in his later letters.

Impairment:

The Insurer argued that in light of the evidence that was presented at the arbitration hearing, the health information upon which it had relied in paying the initial income replacement benefits was called into question. The repayment of such benefits was not, however, an issue in this hearing.

At issue in this hearing are the disabilities that Mr. Aloise claimed to suffer as of the date of termination of his benefits.

Mr. Aloise did not call any medical evidence at the hearing in support of his contention that he suffered an impairment arising from the accident. He did ultimately file the notes and records of his psychiatrist, but he did not supply the notes of his family physician, nor of any other treating physician, nor even an OHIP summary.

In the Application for Accident Benefits (Exhibit 1, Tab 3), at page 2, Mr. Aloise listed his injuries as "neck, back and headaches." The Health Practitioner's Certificate (Exhibit 2, Tab 1), completed by Dr. Jack Lefkowitz, lists neck, knee and lower back problems. In a statement made to Lombard on July 27, 1995 (Exhibit 1, Tab 1), Mr. Aloise stated that, after the accident, he felt headaches, dizziness and back pain. He went to see his family physician, Dr. Lefkowitz, and was given "some painkillers."

Mr. Aloise indicated that he then embarked on a previously planned trip to Italy, where he stayed until the end of July. In his statement to Lombard, he indicated that he was continuing to suffer headaches, dizziness and back pain.

At the hearing, Mr. Aloise did not testify directly about his condition immediately after the traffic accident. He testified as to his condition at the time of the Mt. Sinai DAC in August, 1997, and at the time of his attempted return to work in September, 1997. He also testified that he had ongoing symptoms, ranging from tingling in his leg to depression.

Although Mr. Aloise did not produce his own primary physician's records, the Insurer filed a number of reports produced at their request, including a functional capacity evaluation, and a functional abilities evaluation, as well as the DAC report from Mt. Sinai, all of which cast some light on Mr. Aloise's health status in the period following the accident.

On September 29, 1995, some four months after the accident, Dr. Joseph Kwok examined Mr. Aloise on behalf of Lombard. In his report (Exhibit 2, Tab 9), he outlined Mr. Aloise's reported symptoms. These include headaches, neck pain, left shoulder pain, low back pain, right leg pain, and occasional dizziness. He also mentions that Mr. Aloise felt "a little bit depressed." After examining and testing Mr. Aloise, Dr. Kwok concluded:

In summary, this patient, as a result of the accident in question, suffered soft tissue injuries of his neck, shoulder and back and these account for the headaches, neck pain, shoulder pain, and back pain he is currently experiencing.

Dr. Kwok found that at the time of the examination, Mr. Aloise was still symptomatic, but anticipated a return to work after a short programme of active rehabilitation.

On January 26, 1996, Mr. Aloise was examined by Dr. Leon Kadish, another orthopaedic surgeon. Dr. Kadish concluded in his report (Exhibit 2, Tab 11):

Mr. Aloise sustained myofascial injuries to his neck, left shoulder girdle, and low back in a motor vehicle accident on June 6, 1995. There is no objective evidence of invertebral disc pathology, glenohumeral joint pathology, or nerve root impingement. I feel that there is a significant emotional component contributing to this gentleman's ongoing symptoms.

I cannot accept Mr. Aloise's assertion that Dr. Kadish's reference to an "emotional component" is evidence that Mr. Aloise was already clinically depressed and suffering from a psychiatric disability in January, 1996.

During this period, Mr. Aloise complained of physical problems arising from his accident. Lombard accepted his claim, and paid him income replacement and other benefits, based on the information that he provided to them.

On February 25, 1997, Mr. Aloise was examined by Dr. Frank Deegan, at the request of the Insurer. Dr. Deegan, a physiatrist, in his report (Exhibit 2, Tab 15) outlined the results of his interview with and examination of Mr. Aloise. Under "Current Complaints", Dr. Deegan reports: "Mr. Aloise stated that he has not been depressed but that he has been bothered by his lack of energy."

At page 6, as part of the "History of the Accident", Dr. Deegan reports:

He stated that he has not been attended by any other practitioners or specialists. He stated that the only medications that he is taking at the present time are those prescribed by Dr. Lefkowitz - muscle relaxants.

It is clear from Mr. Aloise's comments to Dr. Deegan, recorded in his report, that he was not taking any treatment for depression on February 25, 1997, and did not represent himself as being depressed at that time.

Mr. Aloise asserts that at some point, the nature of his disability began to change. He points to Dr. Kadish's report of emotional overlay as being indicative of the emergence of a psychological or psychiatric aspect to his disability. Mr. Aloise testified that Dr. Lefkowitz referred him to a psychiatrist, Dr. Tozman.

Dr. Tozman's clinical notes and records were filed as an Exhibit in this arbitration (Exhibit 4). They indicate that Mr. Aloise began to see Dr. Tozman on April 24, 1997, almost two years after the accident, and more than a year after Dr. Kadish's observation of "emotional component." In the absence of any information from Dr. Lefkowitz, or indeed, testimony from Dr. Tozman, it is difficult to put this referral into the context of Mr. Aloise's overall health, and of his claim for disability.

Dr. Tozman's notes indicate in his initial assessment on April 24 that his impression was that Mr. Aloise suffered depression, and offered a secondary diagnosis of post-traumatic stress disorder. That Dr. Tozman viewed the primary diagnosis as depression is supported by his prescription of Prozac, an anti-depressant. He continued to prescribe Prozac, and Xanax, an anti-anxiety drug, throughout the period covered by his clinical notes.

Dr. Tozman, in his reporting letter to Dr. Lefkowitz, dated April 24, 1997, observed:

I saw Mr. Aloise today at your request. He is very depressed & c/o (complains of) dizziness & being drained.

This picture of the Applicant is substantially different from that reported by Dr. Deegan or Dr. Kwok. Taken at its face value, it suggests that Mr. Aloise went from feeling mildly bothered about his lack of energy in February 1997 to being "very depressed" in April 1997. It locates the beginning of the serious depression, referred to by Dr. Tozman, in the time period between February and April, 1997.

On August 27, 1997, Mr. Aloise attended at the Mt. Sinai Hospital DAC, for an examination by Dr. Rajka Soric, a physiatrist. In her report (Exhibit 2, Tab 24), Dr. Soric outlined, under the heading "Presenting Complaints," low back pain, pain in the left shoulder, pain in the neck and an intermittent buzzing in the left ear. She also specifically noted the following:

He complained of feeling tired and exhausted all the time. He did not complain of depression and in fact denied feeling depressed.

On September 29, 1997 (Exhibit 1, Tab 18), Mr. Aloise wrote to the Mt. Sinai DAC, asking to clarify the reference to depression in the report. Mr. Aloise wrote:

Dr. Soric asked me if I was depressed, and I answered I think so, I feel tired most of the time and drained and dizzy on and off (and not as it was in the assessment that which states that I was denying it).

On July 11, 1997, Dr. Tozman wrote a report addressed to the Aetna Life Insurance Company of Canada ("Aetna Canada"), (Exhibit 2, Tab 23). In it he concluded:

It is my opinion that Mr. Aloise is suffering from Dysthymic Disorder and Chronic Pain Disorder. There are elements of psychotrauma. Psychiatric care is required so that his situation does not worsen and to restore and maintain stability.

Dr. Soric's examination of Mr. Aloise, on August 27, 1997, at Mt. Sinai, resulted in a report (Exhibit 2, Tab 24) concluding that Mr. Aloise was able to resume the essential tasks of his employment. Dr. Soric based this conclusion on an examination of his neuromusculoskeletal system, and concluded that:

This gentleman presented with a normal examination of the neuromusculoskeletal system. There is no medical contraindication for Mr. Aloise to resume any and all activities of daily living.

I find that Mr. Aloise initially suffered from a variety of conditions in the period following the accident. He presented soft tissue injuries, resulting in pains to the left side of his neck and left shoulder, as well as continuous low back pain. He also had periodic headaches, and occasional buzzing in his left ear.

In the period between February 25, 1997 and April 24, 1997, he also began experiencing a depressive condition, for which he received treatment.

Mr. Aloise testified that the treatment he received, including Prozac and Xanax, made him feel better and less stressed.

I accept Dr. Soric's assertion that the soft tissue and associated neuromuscular injuries had resolved by August 27, 1997, and were no longer a factor at the time of termination of benefits on September 18, 1997. This conclusion was consistent with the observations of the previous medical examinations obtained by the Insurer. The only evidence that does not support this conclusion is the testimony of Mr. Aloise himself, who, throughout the hearing displayed selective recall of events, and total amnesia with regard to matters that did not reflect favourably upon his case. I found him to be an unreliable witness.

I find that although there were soft tissue and associated neuromuscular injuries, they had resolved by the termination of benefits on September 18, 1997.

I find as well that, on the evidence before me, Mr. Aloise suffered some depression, but that he obtained treatment which stabilized and mitigated its effects.

Did these conditions arise from the motor vehicle accident?

Pre-Accident Condition

Mr. Aloise represented to the various physicians who examined him on behalf of the Insurer, that he had been asymptomatic prior to the accident. At page 8 of Dr. Deegan's report (Exhibit 2, Tab 15) under the title "Past Health", Dr. Deegan writes:

Mr. Aloise stated that he had no previous serious illnesses or accidents. He stated that he had no previous motor vehicle accidents, no work related accident, no sports injuries or fractured bones.

(Note: It was necessary to remind him of having had a work related accident several years ago. He described this as when he was self-employed (non-WCBO related) and that he was attended by Dr. Lefkowitz and received chiropractic treatment and physiotherapy for six months at the Keele Finch Centre - without loss of time from his work...

Mr. Aloise testified about his work-related accident in 1992. He stated that he fell from a stepladder, but did not miss work, and there was no WCB claim. In cross-examination, he denied any other back injury. When asked if he recalled any back treatment in the 1990s he initially responded "Not that I remember."

As noted above, Mr. Aloise, and his solicitor, have failed to produce almost any relevant medical material.

This information, which was not produced, is critical to an understanding of whether Mr. Aloise's conditions arose as a result of the motor vehicle accident. Consistently, in his representations to examiners Mr. Aloise has represented that he was healthy and asymptomatic prior to the accident and did not have a history of previous back problems or depression. Lombard argues that without the provision of the medical records, Mr. Aloise's assertions cannot be confirmed.

By serving Aetna Canada with a summons to witness, Lombard managed to obtain a portion of the notes and records of Dr. Victor Fiorillo relating to Mr. Aloise, covering periods in 1992 and 1993.

The notes (Exhibit 7) reveal a radiology report indicating mild degenerative disc disease, a fall from the ladder at work, kidney problems, extensive physiotherapy, references to prostate, and cholesterol problems, chest pains and ongoing spinal and lumbar back pain. There is also mention of a CAT scan and reference to another motor vehicle accident. The last notations in July, 1993 refer to an attempt to return to work in a supervisory role, which resulted in complaints of dizziness.

Mr. Aloise was questioned about references to complaints about his right leg in Dr. Fiorillo's reports. He replied that they "could have been possible." Likewise, Mr. Aloise's response to a question about nine months of physiotherapy was "Maybe I went. I don't remember very well."

In cross-examination, Mr. Aloise was asked if he was taking any medications in 1995, prior to the motor vehicle accident. His reply was "Not that I remember." Lombard introduced a group health drug claim summary obtained from Sun Life (Exhibit 6) for Mario Aloise. It shows a series of expense claims, apparently including prescription medications. Mr. Aloise, when asked about the drug expenses, responded "I have to find out" and "I have to check."

The notes and records from Dr. Tozman (Exhibit 4) referred to a 1998 visit to a cardiologist and specifically, a March 1998 "WSIAT arbitration." Dr. Tozman states clearly: "I had given (indecipherable) letter & he presented July '97 letter sent to Aetna. Pt. says they want more info. fr me & are sending letter."

Assuming that Dr. Tozman is referring to a Workplace Safety and Insurance Appeal Tribunal hearing, Mr. Aloise must have made a claim at some time for workers' compensation benefits ("WCB") to have had need for such a hearing. This, in turn, implies some sort of workplace injury in order to found such a claim. However, when asked about this reference, Mr. Aloise denied any such claim and suggested that the doctor must have many patients with WCB claims, and that he must have confused him with someone else.

In cross-examination, Mr. Aloise also acknowledged that he has had ongoing cardiac problems of a nature and severity that have prompted him to seek treatment at the emergency room of a hospital.

None of these references to possible pre-existing conditions in itself disentitles Mr. Aloise from claiming that his post-accident disabilities were as a result of the motor vehicle accident. They do, however, raise unanswered questions about whether they were the real cause of Mr. Aloise's post-accident difficulties.

Mr. Aloise consistently represented that he was healthy and asymptomatic prior to the accident. In light of these apparently unresolved pre-accident problems, I have great difficulty accepting Mr. Aloise's assertion.

Documents in the Insurer's Medical Brief (Exhibit 2) provide some limited, additional evidence of a linkage between Mr. Aloise's post-accident complaints and the motor vehicle accident itself.

Dr. Lefkowitz, in the Health Practitioner's Certificate (Exhibit 2, Tab 1) enumerated Mr. Aloise's initial complaints and indicated that he had not treated him for similar conditions prior to the accident. Unfortunately, it would appear that Dr. Fiorillo was Mr. Aloise's primary physician for much of the period prior to the accident, significantly reducing the value of Dr. Lefkowitz's statement.

Dr. Kwok's report of September 29, 1995 (Exhibit 2, Tab 9) concluded that Mr. Aloise "... as a result of the accident in question, suffered soft tissue injuries of his neck, shoulder and back and these account for the headaches, neck pain, shoulder pain, and back pain he is currently experiencing." Dr. Kwok, however, relied upon Mr. Aloise's own history including a statement that: "He did not have any history of motor vehicle accidents prior to this particular accident in June 1995."

Dr. Tozman, in his reporting letter to Dr. Lefkowitz, dated April 24, 1997 (Exhibit 2, Tab 21), discussed the emotional and physical sequelae of the accident and concluded that "This was psychotraumatic & his symptoms are related to that (the accident) in part in my opinion." Dr. Tozman clearly believed that the accident materially contributed to Mr. Aloise's post-accident condition. It should be noted, however, that Dr. Tozman did not see Mr. Aloise until some 22 months post-accident, and there is no indication in his notes that he had the benefit of a pre-accident history for Mr. Aloise.

There are no records of Dr. Lefkowitz, or other treating physicians, to verify Dr. Tozman's opinion on causation. Lombard asserts that the absence of these records, the OHIP summary and the records of any WCB claims should give rise to an inference that they contain information that does not support Mr. Aloise's accident benefit claim. They rely on the fact that Mr. Aloise agreed to produce these and other documents at the pre-hearing, and did not, in fact, produce them, in spite of numerous reminders and requests.

There is evidence of pre-existing medical problems, in the limited medical records available, strongly resembling the disabilities claimed by Mr. Aloise in this arbitration. These include dizziness, back and neck pain, discomfort and generalized weakness. Mr. Aloise's evasiveness on the stand about his medical history, and the continued efforts to obtain this documentation by the Insurer, outlined previously, suggest to me that the missing documents would serve to confirm the Insurer's claim that Mr. Aloise's disabilities were long-standing, and not due to the accident.

I have no hesitation in drawing an adverse inference against Mr. Aloise arising out of the non-production of these documents. I find that the documents were not produced because they would likely weaken Mr. Aloise's claim, and reinforce Lombard's contention that any disabilities were not due to the motor vehicle accident of June 6, 1995.

I find that there is enough credible evidence to conclude that Mr. Aloise's soft tissue injuries were due to the motor vehicle accident. This is consistent with both the nature of the injuries, and the description of the accident itself.

I note, however, Dr. Soric's opinion that these soft tissue and related injuries had resolved and were no longer disabling by the date of the Mt. Sinai DAC, and so could not be considered as disabling on September 18, 1997, when Lombard stopped paying accident benefits.

I find that Mr. Aloise has not satisfied the onus of proving, on the balance of probabilities, that any other impairments he complained of after the accident of June 6, 1995, including weakness, dizziness, and depression, resulted from the effects of that accident.

Ability to Perform Essential Tasks

Much of Mr. Aloise's testimony concerned his inability to perform the heavy lifting and labour requirements that he alleged were part of his job requirements. Although I have already concluded that Mr. Aloise has not satisfied the burden of proving that he was employed by Tempo Marble, I will examine the evidence concerning his activities with the "employer."

Letters written by Mr. Anderson of Tempo Marble focus on the heavier aspects of the work claimed by Mr. Aloise. In his letter of October 24, 1997 (Exhibit 1, Tab 21), Mr. Anderson observed:

In conclusion after having clarified the above, Mr. Aloise attempted to return to work in September and he could not perform any work assigned to him whatsoever even though he applied his full effort. His complaints were still of dizziness, weakness, fatigue and sore back. Therefore my position is unless Mr. Aloise recovers completely to his "pre-accident employment" I will not rehire him.

Mr. Anderson's comments contain elements that are somewhat reminiscent of a notation in Dr. Fiorillo's notes (Exhibit 7) dated 2/7/93 concerning an earlier return to work:

pt tried to ret to work in a supervisory role - 2/52 ago x 2d does (indecipherable) of dizzy... (Indecipherable)

Mr. Aloise testified about pre-accident cardiac problems that required attendance at a hospital emergency room.

Dr. Fiorillo's notes also contain references to cholesterol and circulatory examinations. Mr. Aloise consistently failed to produce relevant medical records, both before and after the motor vehicle accident and misrepresented his pre-accident condition.

Taken together, these elements strongly suggest that the dizziness and fatigue mentioned, as a limiting factor in a return to work, may be attributable to pre-existing cardiac problems rather than the effect of the motor vehicle accident-related injuries. In light of Mr. Aloise's consistent refusal to produce health records, and his misrepresentation of his prior health status, I find that Mr. Aloise has not proven that any work-limiting symptoms were caused by the motor vehicle accident. Rather, the evidence suggests that Mr. Aloise suffered from the same set of symptoms prior to the accident, which limited his employability both before and after the accident.

In his testimony, Mr. Aloise reiterated that he could not perform heavy physical work, and so could not perform his tasks at Tempo Marble. I have already found that his essential tasks were best described in the Employer's Confirmation of Employment, and that they were characterized as sales, design and management. Even if I accept Mr. Aloise's representations about his limitations, I find that any such difficulty lifting heavy weights did not disable Mr. Aloise from carrying out his sales and management related tasks.

Mr. Aloise also claimed that his depression prevented him from carrying out the essential tasks of his employment. In support of his contention is the letter from his psychiatrist to Aetna Canada, as well as the notes and records of Dr. Tozman, the psychiatrist. I have previously found that Mr. Aloise has not proven that his psychiatric problems were in any way a result of the motor vehicle accident. Consequently, I find that his depressive condition does not disable him from the essential tasks of his employment for the purposes of a claim for statutory accident benefits.

I find that, based on the evidence put before me at the arbitration hearing, Mr. Aloise has not proven that any conditions, arising from the accident of June 6, 1995, prevented him from undertaking the essential tasks of his employment, on or after September 18, 1997. Consequently, Mr. Aloise is not entitled to a continuation of income replacement benefits after September 18, 1997 on the basis of ongoing disability.

Failure to Provide a Psychological DAC

Mr. Aloise has founded much of his argument for benefits upon the failure of the Insurer to arrange for a psychological DAC. He maintained that a physical DAC, such as the Mount Sinai Hospital DAC, was not capable of investigating his psychological disabilities. He clearly believed that he had given Lombard notice that he was claiming a psychiatric disability prior to the DAC.

In the absence of a psychological assessment, Mr. Aloise asserts the DAC examination would be invalid, and Lombard would not be entitled to rely upon it to terminate his benefits. Consequently, in the presence of this irregularity, Mr. Aloise would be entitled to ongoing benefits without the need to prove his actual entitlement.

As noted, Mr. Aloise participated in an assessment at Mt. Sinai Hospital, under the direction of Dr. Soric, a physiatrist. Mr. Aloise had principally complained of physical injuries that had prevented him from working, with the result that when he requested a DAC assessment, it was provided at a clinic that specialized in physical assessments. The Health Practitioner's Certificate (Exhibit 2, Tab 1) clearly listed physical symptoms.

As well, in a letter to Lombard dated May 27, 1997 (Exhibit 1, Tab 28), Mr. Aloise specifically requested a DAC assessment "...at the nearest designated centre." In this letter, he refers to Lombard's letter outlining its reasons for discontinuing benefits, but makes no reference to any psychological or psychiatric symptoms that Lombard may not have assessed.

On June 2, 1997, Mr. Aloise wrote a brief letter to Lombard (Exhibit 1, Tab 28). He asked for a response to previous letters and concluded with the following paragraph.

I am also enclosing a business card from my psychiatrist, Dr. Seymour Tozman, should you wish to contact him for any information that you may require.

As part of the interview with Dr. Soric at the DAC assessment, he mentioned that he was receiving medications for depression and that he was seeing a psychiatrist. There was some dispute about whether he reported being depressed, but the report confirms that he complained of fatigue.

The DAC report did not pretend to deal with any psychiatric complaints made by Mr. Aloise. Based on the observations made of Mr. Aloise's physical condition, the report concluded that there was nothing preventing Mr. Aloise from undertaking the essential tasks of his employment.

Mr. Aloise challenged the conclusions of the DAC report, and more specifically, the suggestion that he had denied being depressed. He confirmed his objections by way of letters to Mt. Sinai dated September 29, 1997 and October 28, 1997 (Exhibit 1, Tabs 18 and 23).

Dr. Tozman observed by April 1997 that Mr. Aloise was depressed. He treated him with Prozac and an anti-anxiety drug.

Dr. Tozman also wrote a letter to Aetna Canada confirming his diagnosis of Mr. Aloise's condition on July 11, 1997, about a month before the DAC assessment. There is no question that Mr. Aloise was diagnosed with depression prior to the date of the DAC. This letter, however, was not sent to Lombard until some time after the DAC assessment had been performed.

Mr. Aloise testified that he felt that he had communicated his claim to be suffering from a psychiatric disability to Lombard prior to the DAC. In his mind, the inclusion of Dr. Tozman's business card should have signalled to Lombard that he was claiming a psychiatric disability.

Unfortunately, not everyone shares Mr. Aloise's understanding of the nature of an attendance with a psychiatrist. Certainly Lombard did not. As argued by counsel for Lombard, many individuals see psychiatrists and receive treatment in order to remain functional and to prevent depression and other conditions from becoming debilitating.

Mr. Aloise's physician, and indeed Mr. Aloise himself, had consistently reported physical symptoms as the cause of his claimed disability. Mr. Aloise may have hinted to the Insurer that there might be a claim for a psychological impairment, but he took no measures to make a concrete claim for such an impairment. Although it is hoped that insurers are sensitive to all aspects of an applicant's claim, the onus must be on the applicant to clearly establish the parameters of his or her claim.

I find that the mere mention that a person is seeing a psychiatrist is not sufficient notice that a claim is being made for a psychiatric disability arising from an accident. I find as well that it was appropriate for Lombard to refer Mr. Aloise to a physical DAC, rather than a psychological DAC, since physical complaints comprised the source of the disability claimed to that date.

I note, by way of postscript, that Lombard stated subsequently that it was willing to arrange a psychological Insurer's Examination for Mr. Aloise, and indeed its counsel wrote to Mr. Fellin concerning the provision of the necessary background material for such an assessment. Needless to say, the necessary background material was not provided by Mr. Aloise, and the examination did not take place.

Arbitrator Joachim's comments in Cante and State Farm Mutual Automobile Insurance Company, (FSCO A97-000627, October 26 1998) are appropriate to this case as well: "In this case, the Applicant has failed to establish a significant disabling emotional condition, and therefore the absence of a psychological assessment is not critical."

I find that the referral of Mr. Aloise to the Mt. Sinai DAC was reasonable, given the information provided to Lombard by Mr. Aloise, and that the assessment there was a properly constituted DAC assessment as provided for by the Schedule.

I find, as well, that Lombard was reasonably entitled to rely on its results in their decision to cease paying income replacement to Mr. Aloise. As a result, the failure of Lombard to provide a psychological DAC assessment does not create an entitlement to a continuation of benefits until such time as a psychological assessment is performed.

Supplementary Medical Expenses

I heard no evidence to support Mr. Aloise's claim for supplementary medical expenses. The onus is on the applicant to present credible evidence on all elements of his case. Therefore, I dismiss the claim for supplementary medical benefits.

Summary:

In any claim for statutory accident benefits, the onus is on the applicant to prove that he meets the criteria for eligibility set out in the Schedule. An applicant may do this by leading viva voce evidence, documents, or reports in support of his claim. Mr. Aloise chose to rely on his own evidence to establish his claim.

I have found that he was not a credible witness, and I gave his testimony little weight, unless corroborated by other evidence. Mr. Aloise called no expert evidence of his own. In addition, Mr. Aloise chose not to produce relevant and critical documents that had been requested by the Insurer, with the result that an adverse inference was drawn against him in several critical areas. I find that Mr. Aloise has not met the onus of proving his case for any benefits claimed.

EXPENSES:

Both parties in this Application have claimed their expenses for the arbitration. The criteria for an award of expenses are outlined in section 282(11) of the Insurance Act. Section 282(11) of the Insurance Act in turn refers to the regulations for guidance on the award of expenses.

Section 12(2) of Ontario Regulation 464/96 provides:

An arbitrator may award expenses to an insurer or insured person under subsection 282(11) of the Act if the arbitrator is satisfied that the award is justified, having regard to the following criteria:

1. Each party's degree of success in the outcome of the proceeding.

2. Conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.

3. Whether the proceeding, or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.

4. The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

5. If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.

6. Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

In the arbitration system, costs do not automatically follow the cause. Arbitrators, in deciding the issue of expenses "...enjoy a broad discretion in awarding expenses to a party, in the circumstances of each case, subject to the monetary limits contained in the Regulations" (Gray and Zurich Insurance Company (FSCO A97-001660, January 29, 1999)).

In this case, the Applicant was unsuccessful in all his claims. There were no written offers to settle brought to my attention. In addition, I have found that Mr. Aloise did not comply with undertakings to produce documents. Mr. Aloise also requested an adjournment of the original arbitration hearing due to a need to find new counsel. The order confirming the adjournment specifically noted that the hearing arbitrator could take the adjournment into consideration when making an expense award.

At the hearing, Mr. Aloise's counsel effectively advanced only one issue: that the Insurer was not entitled to cut off Mr. Aloise's benefits without first holding a psychological DAC assessment. In a letter to Mr. Conforzi, dated January 11, 2000, Mr. Fellin wrote: "...I am somewhat confused as to why so much detail is required to address one single issue, namely that Lombard failed to perform a proper D.A.C..."

If there was, indeed, only one issue in question, then perhaps Mr. Aloise might have requested an early preliminary issue hearing to deal with that question, instead of booking some three days of arbitration time to deal with the five issues outlined in the pre-hearing report.

All these matters may have to some degree served to lengthen the arbitration process and delay final resolution of this matter. More importantly, the failure of Mr. Aloise to abide by production agreements, and his failure to produce important material, with only the most flimsy excuses, betrayed a disrespect for the arbitration process that cannot be condoned.

I find that Mr. Aloise's conduct in this arbitration has unnecessarily delayed and obstructed the arbitration process. I find as well that Mr. Aloise's failure to produce relevant material, and specifically, the failure to abide by production agreements has disclosed a complete disregard for the arbitration process. Therefore, in accordance with the provisions of section 282(11) of the Insurance Act, I decline to order Lombard to pay Mr. Aloise's expenses.

I find, as well, that having regard to his refusal to co-operate in the exchange of documents, coupled with his lack of success on any issue in this arbitration, it is entirely appropriate that Mr. Aloise should pay Lombard's expenses in this hearing, and I so order.

Both parties made submissions at the end of the hearing with regard to expenses. Mr. Conforzi gave an estimate of Lombard's expenses, and outlined the number of hours required to pursue this matter. Mr. Fellin indicated, on behalf of Mr. Aloise, that Mr. Conforzi's expenses were reasonable.

Mr. Conforzi indicated that Lombard's claim for expenses would be $8,000. Mr. Fellin raised no objections to this amount.

Arbitrators do not, as a rule, itemize expenses with the precision of a taxing officer. Instead, the practice is to take a "ballpark" approach to expenses. Given the fact that Lombard had to prepare a case on a multiplicity of issues, with virtually no productions from the Applicant, and had to go to great lengths to obtain even limited medical information concerning the Applicant, as well as attend at a three-day arbitration hearing, this may not be unreasonable.

The arbitration system, however, is meant to promote easy and cost-effective access to dispute resolution. Mr. Aloise had a claim that at its inception, was neither frivolous, nor vexatious. As Arbitrator Naylor observed in McCormick and Economical Mutual Insurance Company (OIC A-000139, October 2, 1991):

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits.

In this case, although Mr. Aloise retained his solicitor, and must ultimately be held responsible for the consequences of his choice, much of the delay and non-compliance must be laid at the doorstep of Mr. Fellin, his solicitor.

The adjournment in October was due to Mr. Fellin's problems with the Law Society, and not problems directly created by Mr. Aloise. Likewise, Mr. Fellin had a responsibility, as a solicitor, to fulfill his undertakings and to deal respectfully with tribunals where he appears. He had some sixteen months to deal with the production requests, and fulfill his undertakings given at the pre-hearing. He failed to provide a credible answer to justify non-production.

Arbitrators at the Commission have decided that they, unlike the courts, do not have jurisdiction to award costs or expenses personally against counsel (see Arbitrator Joachim's decision in Armstrong & Personal Insurance Company (FSCO A97-001844, May 14, 1999)). I agree.

To award the full amount of Lombard's expenses against Mr. Aloise, however, would unduly punish him for the conduct of his solicitor, Mr. Fellin. Furthermore, in the long run, it could have the effect of discouraging parties to take advantage of the dispute resolution system. This runs contrary to the spirit of a line of arbitration decisions commencing with McCormick.

Therefore, I use my discretion, pursuant to section 282(11) of the Insurance Act, to reduce the amount claimed and to award Lombard expenses in the amount of $4,000, payable forthwith.

March 27, 2000

John Wilson

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 62

FSCO A98–000747

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIO ALOISE

Applicant

and

LOMBARD GENERAL 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:

1. For written reasons delivered, this arbitration is dismissed.

2. Mr. Aloise shall pay Lombard its expenses in respect of the arbitration, fixed at $4000.

March 27, 2000

John Wilson

Arbitrator

Date

Footnotes

1. 1The 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, 463/96 and 304/98.