Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2002 ONFSCDRS 163

Appeal P98-00036

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SUKHWANT SINGH

Appellant

and

GORE MUTUAL INSURANCE COMPANY

Respondent

Before:

Nancy Makepeace

Counsel:

Ravinder Sawhney for Mr. Singh

William McCorriston for Gore Mutual

Hearing Date:

February 6, 2002

APPEAL and VARIATION/REVOCATION ORDER

Under section 284 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, (“the Act”), it is ordered that:

1. Gore Mutual Insurance Company ‘s application for variation of the Arbitrator’s order, dated July 3, 1998, is allowed. Paragraph 2 of the order is revoked and replaced with the following:

The amount of Mr. Singh’s benefit is $337.29 per week.

Under section 283 of the Act, it is ordered that:

2. Mr. Singh’s appeal of the Arbitrator’s order, dated March 20, 2001, is dismissed.

3. Mr. Singh’s appeal of the Arbitrator’s order, dated July 3, 1998, is dismissed.

4. Gore Mutual shall pay Mr. Singh’s outstanding arbitration expenses with respect to the parties’ disputes about implementation of the Arbitrator’s order.

5. Mr. Singh’s motion for a special award pertaining to events following release of the arbitration decision is dismissed.

6. The parties shall bear their own appeal and variation expenses.

October 18, 2002

Nancy Makepeace Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Singh appeals from the Arbitrator’s decision, dated July 3, 1998, awarding him limited weekly income replacement benefits and attendant care benefits, a nominal special award and partial arbitration expenses. He also appeals from the Arbitrator’s ruling, dated March 20, 2001, that the SABS-1994¹ does not authorize an order for interest accrued after the date of the decision. He claims that the Arbitrator was biased, and requests a new hearing before a different arbitrator. Finally, he seeks an additional special award and additional arbitration expenses because of Gore Mutual’s delay in complying with the Arbitrator’s order.

Gore Mutual asks that the Arbitrator’s order as to the amount of Mr. Singh’s income replacement benefits be corrected. It claims that the Arbitrator failed to take the deduction of income tax into account in calculating Mr. Singh’s pre-accident income.

II. BACKGROUND

The Arbitrator began his reasons with an overview of the case:

Relations between Mr. Singh and the representatives of Gore Mutual Insurance Company have been marked from the outset, by mutual distrust, and lack of candor. In an initial interview with Sarah Tait, the in-house adjuster responsible for the file, Mr. Singh denied that he had sustained any significant previous injury. In fact Mr. Singh had been injured in a car accident two years previously, and had just settled an outstanding claim for accident benefits. In addition to trying to hide the fact of the earlier accident, Mr. Singh has consistently sought to deceive the physicians who have examined and treated him by exaggerating the extent of his complaints and restrictions.

Upon learning of the prior accident, the Insurer embarked upon a strategy of surveillance and delay. It appears that the Insurer’s representatives tried to outwait Mr. Singh. The Insurer rebuffed Mr. Singh’s requests for benefits for almost a year without adequate explanation. The Insurer did not begin to pay weekly benefits until Mr. Singh’s counsel applied for mediation,

The Schedule defines the benefits available. It also sets out the rules governing the conduct of both parties. In this case the Insurer had reason to be suspicious, but by failing to follow the proper procedures relating to the assessment, payment and termination of benefits, they are now exposed to liability for further benefits, interest, and a special award.

Mr. Singh, for his part, has the onus of proving that his condition is sufficiently severe to merit ongoing benefits. By undertaking a systematic and extensive exaggeration of his complaints, he has made it impossible to discern the true state of his condition, and accordingly much of his claim fails.²

The Arbitrator was not persuaded by Mr. Singh’s evidence of disability. However, on procedural grounds alone, he found that Mr. Singh was entitled to income replacement benefits to January 1996, when the disability DAC report was delivered.

Mr. Singh, a taxi cab driver, claimed income replacement benefits at the maximum rate of $1,000 per week, rather than the $185 per week paid by Gore Mutual. The Arbitrator found that the “run sheets” on which Mr. Singh relied were created after the accident, and could not be relied upon. Based largely on the evidence of the owner of the cab company, the Arbitrator found that Mr. Singh was entitled to $405 per week.

The Arbitrator also ordered Gore Mutual to pay Mr. Singh a special award of $750, because of its one-year delay in commencing income replacement benefits and its refusal to pay certain medical benefits.

The Arbitrator dismissed Gore Mutual’s claim for a repayment order, but awarded Mr. Singh only half his arbitration expenses because of his deceit. As the parties could not agree on the amount of arbitration expenses payable, the Arbitrator convened an assessment hearing on March 10, 2000. The parties agreed on expenses during the course of that hearing, but went on to discuss a number of other disputes around implementation of the Arbitrator’s decision. These disputes also proved to be refractory.

The Arbitrator reviewed the implementation issues in a letter dated January 28, 2001. Gore Mutual paid the benefits ordered in September 1998, but a substantial interest payment remained outstanding. The parties disagreed about how it should be calculated. The Arbitrator confirmed the terms of his order, and directed the parties to exchange submissions as to the correct calculations. The parties had settled their dispute about the amount of transportation expenses owing, but Gore Mutual had still not paid that amount or Mr. Singh’s agreed arbitration expenses. Mr. Singh moved for an additional special award, based on Gore Mutual’s delay in complying with the Arbitrator’s order. The Arbitrator ruled that he had no enforcement powers, and therefore, could not order post-judgement interest or an additional special award. He also ruled that the doctrine of functus officio prevented him from dealing with Gore Mutual’s motion for variation of his benefit rate order.

The Arbitrator ruled on the calculation of interest by letter, dated March 20, 2001. The text of the letter is appended to this decision. Gore Mutual paid the outstanding interest, in accordance with the Arbitrator’s ruling, the following week. Arbitration expenses were paid in October 2001.

III. ANALYSIS

A. Entitlement to Income Replacement Benefits after January 2, 1996

The Arbitrator concluded that Mr. Singh is not entitled to income replacement benefits after January 2, 1996. Mr. Singh submits that the Arbitrator erred in his disability findings by (i) failing to apply the standard of proof on a balance of probabilities; (ii) failing to apply the “total disability” test, which does not require unemployability; (iii) failing to “de-link” his disability assessment from his finding that Mr. Singh fabricated his taxi-receipts in order to enhance his benefits; (iv) making an unfavourable assessment of Mr. Singh’s credibility in respect of his disability claim; and (v) failing to extend the hearing in order to give Mr. Singh an opportunity to bring additional evidence to fill in any gaps identified by the Arbitrator.

Mr. Singh also argues that the Arbitrator infringed his equality rights under by s. 15 of the Charter, by (i) failing to recognize his difficulties with the English language when considerating Gore Mutual’s allegations that he misrepresented and exaggerated his symptoms when meeting with various experts; (ii) failing to consider how his cultural background affected his disability; failing to accept the evidence of his wife and friends because of their ethnic background; and (iv) awarding a “token” special award of only $750 against Gore Mutual, despite his recognition of the Insurer’s misconduct, while depriving him of half his arbitration expenses because of his misrepresentations.

Gore Mutual terminated benefits in June 1995 on the ground that Mr. Singh failed to attend an insurer medical examination. The Arbitrator disagreed, and found that Gore Mutual had contravened the procedural requirements of the SABS-1994 in the way it terminated benefits. He concluded that Mr. Singh should have received benefits until the disability DAC report was delivered in January 1996, and ordered benefits paid on that basis. That order is not under appeal.

The Arbitrator then turned to the question of Mr. Singh’s entitlement to benefits after January 2, 1996. He did not accept Mr. Singh’s evidence because of a number of discrepancies. The main problem was that Mr. Singh’s claims of physical and psychological disability were contradicted by the surveillance evidence and by doctors’ observations of his demonstrated abilities when he was unaware of being assessed. In addition, a number of doctors observed that he voluntarily restricted his movements, suggesting his injuries were not the problem.

The Arbitrator was “particularly impressed” with the evidence of Dr. John Patcai, a physiatrist who assessed Mr. Singh for Gore Mutual in May 1996.³ Dr. Patcai could find no physiological basis for Mr. Singh’s limitations, and speculated about malingering. He observed inconsistent findings, “signs of pain behaviour, pain magnification and non organic problems,” as well as “self limitation of movement.” In his initial report, he stated he would advise the Ministry of Transportation that Mr. Singh was not fit to operate a motor vehicle because of significant cognitive problems. He withdrew the letter after viewing the surveillance videotapes. In a supplementary report, he stated that Mr. Singh’s presentation was inconsistent with the videotape, making “malingered pretense” much more likely.

In September 1996, Dr. Jose Jimenez observed that Mr. Singh used his cane and showed restricted mobility during formal examination, but afterwards, when he walked to a waiting car in the parking lot, he carried his cane and demonstrated full mobility. After seeing surveillance videotapes, Dr. Jimenez concluded that Mr. Singh had no musculo-skeletal or peripheral neurological impairment, and that the discrepancies were “impossible to correlate with the diagnosis of ‘chronic pain syndrome.’” The Arbitrator described this as “[o]ne of the most damning examples of [Mr. Singh’s] inconsistent behaviour."⁴

The strongest expert evidence supporting Mr. Singh’s claim of physical disability came from Dr. G. Isaac, Mr. Singh’s family doctor, and Dr. A. Kachooie, a physiatrist. The Arbitrator found he could not rely on either. He placed little weight on Dr. Kachooie’s opinion, because Dr. Kachooie treated Mr. Singh “quite aggressively,” despite noting “significant guarding” and “a significant amount of functional overlay."⁵

Dr. Isaac diagnosed chronic pain syndrome, and found Mr. Singh completely disabled from working. In April 1995, he recommended a rehabilitation program and psychological assessment, and stated that “the longer the delay in starting intensive treatment, the greater is the probability of long-term or even life-long disability.” Mr. Singh submits that the Arbitrator failed to address this report. I disagree. The Arbitrator stated that Dr. Isaac’s clinical notes left him with the impression that the doctor had been “struggling for some time trying to find an explanation for Mr. Singh's extreme behaviour."⁶ Although the doctor initially testified that the surveillance evidence was consistent with what he observed, the Arbitrator stated that he retreated from this position in cross-examination. The Arbitrator inferred that Mr. Singh exaggerated his physical problems when being examined by Dr. Isaac. This was squarely within his authority, based on the evidence. In any event, the Arbitrator was entitled to reject Dr. Isaac’s opinion in favour of the weight of expert opinion.

Mr. Singh also submits that the Arbitrator’s dismissal of Dr. Isaac’s reported opinion is inconsistent with his treatment of Dr. Isaac when considering the special award. Again, I disagree. The Arbitrator found that Gore Mutual acted unreasonably in failing to respond to Dr. Isaac’s treatment recommendations. This does not mean the Arbitrator accepted the assessment on which they were based.

In addition to his physical complaints, Mr. Singh complained of problems with sleep, memory, cognition and communication. Here, too, there were significant problems with the evidence. Mr. Singh claimed that he could speak virtually no English, and even had difficulty testifying through a Punjabi interpreter. The Arbitrator described Mr. Singh’s unusual behaviour at the hearing, which was consistent with communication difficulties noted by several of the experts who assessed him. However, the Arbitrator relied on contradictory evidence, including Mr. Singh’s own ability to testify about his run sheets; testimony about a conversation he had in English at a yard sale; and a conversation, observed on videotape, which the Arbitrator found was likely in English. The Arbitrator concluded that Mr. Singh was “intentionally exaggerating” his language, memory and cognitive difficulties."⁷

On appeal, Mr. Singh relies on the evidence of Dr. R. Kakar, his treating psychiatrist. He argues that the Arbitrator must have overlooked this evidence or discarded it. On the contrary, the Arbitrator considered this evidence, and rejected it because he found it inconsistent with other evidence:

With respect to the difficulty in answering questions about his family members, Dr. Kakar testified that Mr. Singh is suffering from a severe depression that has diminished his cognitive powers. He went on to explain that as a result of the estrangement from his wife, and his inability to financially support his children, these family members are “lost to him” and that accordingly it was not surprising that he had forgotten details about his family such as the ages of his children.

Dr. Kakar’s suggestion that Mr. Singh’s immediate family was “lost to him” is not borne out by the surveillance evidence which shows Mr. Singh frequently in the vicinity of his wife’s apartment, and on occasion in the company of his wife and children. Nor does it explain the inability to recall details about his siblings, or other personal information.

The fear of persecution may be well founded, and certainly the conduct of the surveillance teams who amongst other things followed Mr. Singh inside a hospital must be admonished, but it does not explain the difficulties Mr. Singh apparently has communicating with his own doctors.

Dr. Sood, a psychiatrist who conducted an IME, agreed that depression can cause short term memory loss, but suggested that personal information such as the names of family members would be the easiest to retrieve.⁸

The Arbitrator drew the following conclusion:

In my view the contradictions in Mr. Singh’s apparent cognitive abilities can only be satisfactorily explained by concluding that Mr. Singh is intentionally exaggerating his language difficulties and, by extension, his memory loss and general cognitive impairment. Dr. Sood⁹ concluded that Mr. Singh’s inability to answer routine questions was a pretense. I accept this evidence. I reject Dr. Kakar’s conclusion that Mr. Singh is suffering from a major depression sufficient to significantly impair his cognitive functions. Given Mr. Singh’s deceit, it is impossible to ascertain what if any actual cognitivie difficulties he has.¹⁰

This conclusion was available to the Arbitrator, based on the evidence.

Although the appeal has little merit, I will briefly address Mr. Singh’s specific concerns.

Mr. Singh submits that the Arbitrator did not apply the appropriate standard of proof or the appropriate definition of “total disability.” He points out that the Arbitrator accepted that “the accident has changed Mr. Singh’s life,” and also accepted that attendant care benefits were payable, implying that the accident caused the changes. Entitlement follows from these findings, according to Mr. Singh.

In my view, the decision reflects the Arbitrator’s careful balancing of the evidence for and against Mr. Singh’s claim. His application of the civil standard of proof (balance of probabilities) is implicit throughout the decision, and the decision contains no suggestion that he applied any higher standard. I find that the Arbitrator correctly stated the criteria for entitlement in the final paragraph of his reasons concerning the duration of income replacement benefits:

The fact that I accept the accident has had a deleterious effect on Mr. Singh is insufficient to establish entitlement to an income replacement benefit. To establish entitlement, Mr. Singh must demonstrate that his limitations are such that he suffers a substantial inability to perform the essential tasks of a taxi driver. To meet that test, the Applicant must first present credible evidence sufficient to allow me to determine the true extent of his limitations. By consistently exaggerating his difficulties, Mr. Singh has undermined the value of his own evidence and that of the witnesses called on his behalf, to such an extent that I do not find it reliable. Without reliable evidence, Mr. Singh’s claim for an ongoing income replacement benefit cannot succeed.¹¹

This was not an invitation to bring forward more evidence. It followed the Arbitrator’s consideration of the lay evidence Mr. Singh relied on in his appeal submissions. Contrary to Mr. Singh’s submission that the Arbitrator rejected the supportive testimony of his lay witnesses because of their cultural background and socioeconomic status, an allegation for which no evidence was produced, I find that the Arbitrator implicitly accepted their testimony that he is “a changed man” after the accident, although he found that “[s]ome of the specifics, particularly as they related to physical limitations, must be questioned in light of the other evidence. . ."¹² The bottom line was that the evidence fell short of establishing substantial inability to perform the essential tasks of a cab driver as a result of the accident.

Mr. Singh argues that the Arbitrator’s assessment of the disability claim was “tainted” by his adverse assessment of Mr. Singh’s credibility in relation to the run sheets. However, the Arbitrator recognized that not every misrepresentation precludes entitlement. In dismissing Gore’s repayment request, he said, “[b]ecause the Applicant misrepresented the true state of his physical limitations, does not necessarily mean that he was not in fact disabled."¹³ Nevertheless, an insured person who chooses to manufacture documents in order to receive benefits at a higher rate must expect an adjudicator to approach his uncorroborated evidence with caution. In a soft tissue injury case, where the paucity of objective evidence makes credibility the crucial issue, this is a very risky strategy. In any event, the decision provides no support for Mr. Singh’s allegation that the Arbitrator failed to “de-link” the disability and benefit rate issues. The Arbitrator did not mention the benefit rate dispute in his review of the disability evidence, and his reasons concerning disability stand on their own. Mr. Singh’s deceit was not limited to the run sheets; the Arbitrator found that he also exaggerated or manufactured his impairments. I find no error.

Mr. Singh submits that the Arbitrator should have extended the hearing, or called additional witnesses, if he felt that Mr. Singh’s evidence was insufficient to establish entitlement. In particular, he argues the Arbitrator should have called Mr. Singh’s wife to testify about their relationship. This is in response to surveillance evidence that showed Mr. Singh with his wife, or near her home, contradicting his evidence that they were estranged. Mr. Singh’s argument represents a serious misunderstanding of the arbitration process. As the Applicant, he bore the burden of proof. It was not for the Arbitrator to make his case for him. The surveillance evidence was an important issue during the hearing. That was the time for Mr. Singh to call his wife to testify, if he felt that would help his case. In any event, the arbitration hearing lasted 12 days, spread over almost a year. According to Appendix A to the arbitration decision, the Arbitrator heard from 16 witnesses, in addition to Mr. Singh, and considered 34 exhibits. His reasons extended to 36 pages. They are thorough, dealing with all the important evidence presented by both parties. I find no error.

Rather than displaying bias against Mr. Singh, I find that the Arbitrator gave conscientious and thorough consideration to the evidence. He considered evidence that supported Mr. Singh as well as evidence that undermined his case, and explained why he preferred Gore Mutual’s evidence, despite some problems. For example, he relied little on the investigation reports, because he found they lacked objectivity, and preferred to rely on the surveillance evidence. He admonished the surveillance teams for following Mr. Singh into a hospital, and did not rely on that evidence. He rejected Gore Mutual’s submission that any cognitive impairments resulted from an assault in 1996, finding that these behaviours “were displayed long before the beating.” He recognized that Dr. M. Bushuk’s testimony “had a slightly strident air that was out of keeping with his position as a DAC assessor,” but concluded “his clinical findings and the inconsistencies he documented cannot be ignored, particularly given that his findings are corroborated by others.” He recognized the difficulty posed by the failure of Dr. Isaac and Dr. Patcai to report Mr. Singh to the Ministry of Transportation, despite their initial concerns about his ability to drive. And despite finding that Mr. Singh “greatly exaggerated his difficulties,” and “wilfully misrepresented his condition,” the Arbitrator dismissed Gore Mutual’s request for a repayment order on the basis that the evidence available prior to the release of the DAC assessment was insufficient to discharge the onus under s. 70(1) of the SABS-1994.

In my view, the Arbitrator’s conclusion was well within his authority, based on the evidence.

B. Benefit Rate

In March 2000, Gore Mutual asked the Arbitrator to vary his order pursuant to s. 284 of the Act. The Arbitrator ruled that the doctrine of functus officio applied to preclude his dealing further with the issue, and invited Gore Mutual to appeal or move to vary the order.¹⁴ Gore Mutual brought an application for variation/revocation before the Director of Arbitrations in February 2001. The appeal was well under way by that time, and the Director concluded that “it would not be productive to spread the disputes in this case among various decision-makers."¹⁵ Therefore, he exercised his discretion under s. 284(2) and s. 6(4) of the Act, to refer the matter to the appeals delegate hearing the appeal.

The Arbitrator ordered Gore Mutual to pay Mr. Singh’s income replacement benefits at the rate of $405 per week. He explained that his calculation “is based upon a net salary of $90 per day multiplied by 5 days per week, for a net salary of $450 per week. Ninety percent of that salary translates to a benefit of $405 per week.” On appeal, the parties agreed to the gross figure of $450 per week, so the only dispute concerns the deductibility of tax.

The decision is unclear whether the $450 figure is gross or net of income tax. Gore Mutual submits that it is net of expenses, but gross of tax. Mr. Singh submits that the Arbitrator chose a number with which he felt comfortable, and I should not interfere with his judgement.

Based mainly on the expert evidence of Mr. Daniel Edwards, a chartered accountant, that “the coincidences with respect to the number of days that exactly the same fares were collected or the same distances were travelled” were “incredible,” the Arbitrator found that Mr. Singh created the run sheets after the accident.¹⁶ Contrary to Mr. Singh’s submission that the Arbitrator allowed this finding to taint his assessment of the evidence as a whole, I find that he was scrupulous in searching for reliable evidence of Mr. Singh’s actual income. In the absence of credible documentary evidence, he estimated Mr. Singh’s income based on the evidence of Mr. Peter Singh, the cab’s owner, about the average earnings of “most drivers.”

The estimated income approach has been endorsed by Commission adjudicators on a number of occasions where business records are legitimate but incomplete. However, an insured person who manufactures business documents runs a risk that the adjudicator will find there is no reliable evidence of pre-accident income. The Arbitrator’s approach in this case was, if anything, generous, given his finding that he could not rely on Mr. Singh’s own evidence about his earnings. Nor do I find any error in his reliance on the lower of the two figures given by Peter Singh, “in light of the discrepancies in the Applicant's evidence."¹⁷ In this sense, I agree with Mr. Sawhney that in ordering Gore Mutual to pay $405 weekly, the Arbitrator was “trying to fix an amount he was comfortable with.”

However, reading the decision as a whole, and particularly considering Peter Singh’s testimony that “most drivers earned in the order of $90 to $100 clear per shift,"¹⁸ I am satisfied the figure was net of expenses, but not net of income tax payable. Further, I do not agree that the Arbitrator intended to disregard the income calculation formula set out in the SABS-1994. Subsection 10(1) states that IRBs shall be paid at “90 per cent of the insured person’s net weekly income from employment¹⁹ determined in accordance with section 81 or 82.” Section 82 provides an insurer with the option of electing to calculate benefits based on prescribed net weekly income tables. As Gore Mutual did not do so in this case, the applicable rules are set out in the s. 81 formula, which clearly requires the deduction of income tax payable from the person’s gross annual income from employment.

Mr. Edwards prepared a report setting out the calculation of Mr. Singh’s income net of taxes. He considered two alternative scenarios: Option A treated Mr. Singh as single with no dependants, and Option – treated him as having two children and able to claim the “equivalent-to-spouse” tax credit. The difference in the result is $26, and Gore Mutual is prepared to accept the more generous calculation.

I find that the Arbitrator erred in failing to consider income tax deductible in calculating Mr. Singh’s pre-accident net income. Accordingly, paragraph 2 of the Arbitrator’s order shall be varied to indicate that the amount of Mr. Singh’s benefit is $337.29 per week.²⁰

C. Arbitration Expenses

The Arbitrator ordered Gore Mutual to pay a portion of Mr. Singh’s arbitration expenses. Mr. Singh’s disbursements were to be paid in full, but he was awarded only half his legal fees, at the stipulated rate, because of “the extent of [his] deceit.” Mr. Singh submits that the Arbitrator erred in failing to order Gore Mutual to pay his arbitration expenses in full, including legal fees at the maximum prescribed rate of $150 per hour.

Because Mr. Singh applied for arbitration before November 1, 1996, the Arbitrator did not have power to award expenses to Gore Mutual, and his expenses decision was governed by the Commission’s pre-Bill 59 jurisprudence.²¹ I accept Mr. Singh’s submission that the outcome of the proceeding was only one factor to be considered. The Arbitrator took the same view, confirming Commission authority that “a claimant advancing a legitimate claim will be awarded his expenses at first instance, notwithstanding that the claim ultimately fails."²² The main reason for the Arbitrator’s expenses award was not the outcome of the proceeding, but Mr. Singh’s deceit. Mr. Singh not only fabricated income documentation, but attempted to mislead doctors, the Insurer and the Commission about the severity of his accident-related injuries. Nevertheless, the Arbitrator awarded him half his legal fees because he was “successful with respect to a number of claims, and . . . some of those claims ought to have been settled well before the hearing.” In my view, the Arbitrator exercised his discretion appropriately.

Mr. Singh submits that the Arbitrator’s order contravened s.7 of the Charter, which says, “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Although Mr. Singh has not spelled it out, I gather his position is that the Charter guarantees a right to affordable legal representation. In the absence of detailed submissions on point, I am not persuaded Mr. Singh can bring himself within New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. No. 46, and Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. While the Commission’s relatively liberal approach to arbitration expenses helps ensure access to justice, it is worth remembering that a system clogged with unmeritorious applications is no help to insured persons with meritorious cases. In any event, the Arbitrator obviously considered access to justice issues in awarding Mr. Singh half his legal fees. I find no error.

D. Special Award

Mr. Singh submits that the Arbitrator erred in failing to order a special award at the maximum rate of 50 per cent of amounts owing. He claims that because of Gore Mutual’s handling of his claim, he felt “a genuine fear of persecution.” He also points out that the Commission has given bigger special awards than the $750 ordered in this case.

I adopt the following statement of Delegate Draper with respect to the standard of review for special awards:

The awarding of a special award is not strictly discretionary. According to section 282(10), the arbitrator “shall” order a special award if he or she finds that the insurer unreasonably withheld or delayed the payment of benefits. A finding of unreasonableness, however, is highly dependent on the arbitrator’s view of the evidence. Since the arbitrator had the opportunity to observe the witnesses, including State Farm’s Claims Superintendent, I am not prepared to interfere with his assessment unless he erred in some significant way.²³

Once an arbitrator decides that a special award is warranted, the amount is left to his or her discretion. Previous appeal decisions have taken a narrow approach to reviewing discretionary decisions.²⁴ I find no error in the arbitrator’s approach in setting the amount of the special award and, therefore, have no basis for disturbing the order.²⁵

The Arbitrator was appropriately critical of Gore Mutual’s handling of the claim. He found that Gore Mutual’s initial delay in paying income replacement benefits was unreasonable, particularly in light of its failure to request further information or state its reasons for not paying. He summarized the matter as follows:

I am satisfied that the truth of the matter is that the Insurer had generalized concerns about the legitimacy of Mr. Singh’s claim and was putting off the Applicant as they tried to build a case to deny benefits, through surveillance.

In hindsight, the Insurer had good reason to doubt Mr. Singh and there is a superficial attraction to excusing the Insurer’s conduct on the basis of a post facto explanation. There is no doubt that a claim for a special award must be examined in the context of the Applicant’s behaviour, but the inquiry must focus on whether or not the Insurer’s refusal or delay was justified on the basis of the information available at the time.²⁶

The Arbitrator also found unreasonable Gore Mutual’s refusal to pay for treatment recommended by Dr. Isaac, without requesting a treatment certificate or an insurer medical examination, as permitted under the SABS-1994. The Arbitrator concluded:

With respect to later claims for relatively minor supplementary medical benefits I conclude that the Insurer’s representatives allowed their conviction that Mr. Singh was trying to obtain an income replacement benefit, when he was not entitled to one, to spill over into areas that should not have been controversial. In that regard, I need only point to the position taken by the Insurer on the TENS machine, and receipts for bus fares, to establish the point.

The Insurer’s conduct, to quote Arbitrator Palmer, in this regard was "stubborn, inflexible, unyielding and immoderate."²⁷ In considering the special award, I also note that this conduct continued throughout the hearing, and manifested itself in a degree of contempt for Mr. Singh that was not called for.

Taking into account the conduct of the Insurer, in light of the Applicant’s own conduct, I order a special award of $750 inclusive of interest.²⁸

The award is nominal, compared to the amount of benefits and interest awarded, and considering the Arbitrator’s strong criticism of Gore Mutual’s conduct. However, it must be seen in context. The Arbitrator awarded income replacement benefits on procedural grounds alone. He did not accept that Mr. Singh was disabled as a result of the car accident. As is clear from the quoted passage, the Arbitrator also considered Mr. Singh’s misrepresentations about his income and accident injuries in fixing the amount of the award. That was appropriate because the insurer’s handling of a claim must be judged in its entire context, including the conduct of the insured person. I find that the Arbitrator considered the appropriate factors and exercised his judgement properly.

IV. POST-DECISION MATTERS

A. Interest

Gore Mutual did not begin paying IRBs until April 1995, a year after the accident, when it made a lump sum payment at the rate of $185 per week, without interest. In his decision of July 3, 1998, the Arbitrator ordered Gore Mutual to pay Ainterest on each [IRB] payment at the rate of 2 percent per month, compounded monthly, from the date they became due, until the date of the first payment in the spring of 1995.” He stated that “each of the weekly payments was overdue as of July 30, 1994, and every two weeks thereafter.” He also ordered Gore Mutual to pay interest on the benefits payable between June 12, 1995, when benefits were terminated, and January 2, 1996, when the report of the disability DAC was delivered, and on the “top-up” payments (the difference between the $405 per week he ordered and the $185 per week paid by Gore Mutual).

Neither party appealed the Arbitrator’s order, which was authorized by s. 68 of the SABS-1994:

If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.²⁹

On September 8, 1998, Gore Mutual tendered a cheque representing the principal amount of the IRB and other benefits ordered, plus interest calculated “using 5% as the average return. . .” In March 2000, Gore Mutual conceded that it had miscalculated the interest payable and that about $20,000 was still owing. This did not resolve the dispute. Gore Mutual had not give details about calculation, and Mr. Singh responded by preparing his own calculations on a spreadsheet. Mr. Singh’s calculations were based on interest accruing from the date of the accident, resulting in an outstanding amount of about $50,000. Gore Mutual asserted that interest was not payable on the lump sum payment made in April 1995, on the basis that it did not have sufficient information before that time. In his letter of January 28, 2001, the Arbitrator reiterated his decision that interest was to run from July 30, 1994: “[b]oth parties’ interest calculations would seem to ignore this determination.” He directed the parties to provide their detailed calculations, in accordance with his previous ruling, within a specified time frame.

Neither party complied, and the Arbitrator admonished the parties by letter dated February 16, 2001. In response, Gore Mutual provided a calculation based on the Arbitrator’s order with respect to the start date, but based on a rate of 2 percent per month simple interest.

The Arbitrator issued his final order on March 20, 2001. It dealt with three aspects of the interest calculation: the start date, the method of compounding, and the stop date. The Arbitrator once again reiterated his ruling on the start date, and reaffirmed that s. 68 of the SABS-1994 mandates interest “at the rate of 2 per cent per month compounded monthly.” The “stop date” is the only issue in dispute in the appeal. The Arbitrator concluded that his authority was limited to awarding interest to the date of his decision.

Arbitral orders are enforced through the courts, pursuant to the Insurance Act and the Statutory Powers Procedure Act:³⁰:

Insurance Act, s. 282(14):

282. (14) At the request of the insured person, the Director shall file a copy of the arbitrator’s order in the Ontario Court (General Division) [now the Superior Court of Justice] and the order shall be entered and be enforceable in the same way as a judgement or order of the court.

Statutory Powers Procedure Act, s. 19:

19. (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Ontario Court (General Division) by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. (2)A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing.

(3) On receiving a certified copy of a tribunal’s order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Ontario Court (General Division).

The Arbitrator relied on Northern & Central Gas Corp Ltd. v. Kidd Creek Mines Ltd. (1988), 1988 CanLII 4649 (ON CA), 66 O.R. (2d) 11, in which the Ontario Court of Appeal held that post-judgement interest was payable under the Courts of Justice Act on two orders of the Ontario Energy Board that were filed in the court pursuant to a provision in the Ontario Energy Board Act that was very similar to s. 282(14) of the Insurance Act. The decision does not speak to a tribunal’s authority to order interest under its own statute.³¹

In this case, Mr. Singh did not file the Arbitrator’s order with the court. He did not ask the Arbitrator to order the payment of interest on the award of July 3, 1998. What he wanted was interest payable on overdue interest, calculated in accordance with s. 68 of the SABS-1994.

Section 68 does not include an interest stop date. It does include a start date – interest is payable “from the date the amount became overdue.” Relying on these provisions, Commission adjudicators have rejected the argument that benefits do not become overdue until an adjudicator is satisfied of the insured person’s entitlement. Delegate Draper summed up the jurisprudence in Bajic and Pafco Insurance Company and Zurich Insurance Company:

Because interest under s.68 is payable at the “punitive” rate of 2 per cent per month, Pafco argues that it cannot have been intended to apply until the insured person has proven his or her claim, and the benefits are found owing and “due.” In this case, Pafco claims that its obligation to pay IRBs could not be determined without weighing the evidence and testimony through the dispute resolution process. As a result, it submits that interest should not run until the dispute resolution process is concluded, including this appeal.

In my opinion, Pafco’s interpretation goes too far. It suggests that interest rate is only payable if the insurer fails in its duties – a test similar to s.282(10) of the Insurance Act for special awards. While “overdue” must be given meaning, I find no indication that the legislative intention is to relieve insurers from paying interest whenever the insured person’s entitlement is questionable. On the contrary, the high rate of interest imposed by s.68 is clearly meant to encourage insurers to pay benefits in a timely fashion.

Pafco’s interpretation would be far more attractive if the legislation included an option to order interest at a lower rate. However, it does not. Pafco suggests this is an oversight, but I find no basis for this assertion. As Director’s Delegate Naylor stated in Sebastian and Canadian Surety Company, (FSCO P96-00032, July 28, 1998), the interest provisions are remedial, not punitive. They are “designed not only to compensate applicants for the value of money withheld but to further the system’s fundamental goal of ensuring prompt payment of benefits for an injured person’s medical and vocational rehabilitation, their care or their day-to-day financial support."³² I agree with this analysis, although as I held in Trendle and Economical Mutual Insurance Company, (OIC P96-000009), there are limits. If the insured person acts in a manner that effectively prevents the insurer from assessing his or her entitlement, interest may not run.³³

Rather than drawing a distinction between pre- and post-judgement interest, arbitrators have treated the insurer’s obligation to pay interest on overdue benefits as ongoing to the date of payment.³⁴ I can think of no good policy reason for relieving insurers of the obligation to pay interest under the SABS at the very point their obligation becomes clearest, that is, after an arbitrator has released a decision. Reading s. 68 in light of its underlying policy objectives,³⁵ I find that interest continues to accrue on overdue benefits after release of an arbitration decision until the insurer pays the benefits owing.

The Arbitrator’s ruling may have been influenced by the fact that Gore Mutual paid the benefits owing on September 8, 1998, about two months after the date of the decision. The only remaining issue was the interest payable on this principal amount. Although it can be argued that interest continues to compound on the outstanding interest until the entire amount owing is paid, I prefer Arbitrator Blackman’s view that interest accrues on overdue benefits, but not overdue interest.³⁶

For these reasons, I agree with the Arbitrator’s conclusion that Gore Mutual owed no further interest on the benefits owing to Mr. Singh after the payments made in March 2001.

When the Arbitrator issued his supplementary interest ruling, more than two years had passed since his initial order, and the appeal proceeding was well under way. His ruling was intended to give final resolution to the parties’ remaining disputes with minimal additional expense or delay. He took a different approach to Gore Mutual’s request for variation of his order on the benefit rate and Mr. Singh’s request for an additional special award, relying on the doctrine of functus officio. In my view, he should have declined the interest enquiry on the same basis. He had made an order, and neither party appealed it. The order was clear on its own terms. In fact, it was a typical Commission interest order under the SABS. It did not include a “stop date.” Absent a stay, Gore Mutual was required to pay interest as ordered. In hindsight, a simple statement to that effect might have better clarified the matter.

B. Expenses

Gore Mutual’s handling of the claim may have played a role in the Arbitrator’s expenses order, and it continued to be an issue after the hearing. Mr. Singh seeks an order that Gore Mutual pay his arbitration expenses relating to the implementation disputes. Gore Mutual submits that the matter should be referred to the Arbitrator. Although arbitration expenses are usually decided by the presiding arbitrator, I find it appropriate to dispose of the remaining issues in this case, considering the prolonged history of the proceeding. In addition, because the parties’ implementation disputes are well documented in their correspondence, and do not depend on the Arbitrator’s assessment of the evidence, I am in a good position to decide the issue.

Although there are mitigating factors, I am not satisfied they provide an adequate explanation for Gore Mutual’s non-compliance with the Arbitrator’s order. Gore Mutual raised a legitimate issue about the Arbitrator’s calculation of Mr. Singh’s income replacement benefit rate, but did not commence a variation proceeding until January 2001. Initially, Gore Mutual asked the Arbitrator to vary his own order. As early as March 2000, the Arbitrator stated that he had no authority to do so. He invited further submissions on point, but none were received. He confirmed his ruling ten months later in January 2001, and this finally prompted Gore Mutual to take action. In any event, absent a stay order, Gore Mutual was obliged to pay the amount ordered, pending the outcome of any appeal or variation.

Transportation expenses also remained unpaid at that time. In his initial decision, the Arbitrator ordered payment of travel expenses, “to be agreed upon or assessed.” However, in his letter of January 28, 2001, the Arbitrator stated,

In a letter dated March 31, 2000, the Insurer appears to suggest that it is withholding payment of the transportation expenses until the other outstanding issues have been resolved.

I commented in my reasons on the fact that the Insurer appeared to let legitimate concerns over the IRB issue cloud its judgement with respect to some of the supplementary medical benefits that should not have been contentious. The Insurer would seem to be falling into the same trap.

The most important factor in deciding post-decision expenses is Gore Mutual’s delay in complying with the Arbitrator’s interest order.

Mr. Sawhney’s conduct of the post-decision disputes also left much to be desired. In response to the Arbitrator’s request for the parties’ interest calculations, in February 2001, he took the position, on Mr. Singh’s behalf, that interest should run from the date of the accident. This ignored the Arbitrator’s order that interest should not begin to run until July 30, 1994. Mr. Sawhney’s letter to the Arbitrator, dated February 26, 2001, is especially deserving of censure. The main body of the letter is as follows:

I am enclosing my letter to Mr. McCorriston dated February 20, 2001. The insurer has not paid up the amount of $70,660.66 which I ask you to confirm as a consent Order arrived at by implied and explicit agreement between the parties on the strength of the correspondence you have as well as on account of the fact that the insurer did not file any opposition or submissions for which you have granted them a year to provide. The insurer’s bad faith and hoax continues.

Mr. McCorriston has denied receiving practically all of my correspondence except my letter to the Chief Justice of the Superior Court of Justice. He will deny receiving this as well. By now, Mr. McCorriston’s unreasonableness in denials of truths equates with those who deny the Holocaust. By copy to him, I again ask that his client pay up the amount instantly, since this is a precondition for discussing anything further in this matter, as stated in my enclosed letter of February 20, 2001.

Mr. Sawhney has provided no evidence in support of his allegation that Gore Mutual is involved in a “hoax,” nor any justification for comparing the conduct of Gore Mutual’s counsel to that of a Holocaust denier. The accusatory and immoderate tone of this letter is inconsistent with the civility expected of participants in the Commission’s process. As a lawyer, Mr. Sawhney should know better. He explained, in the appeal hearing, that he was expressing himself strongly to try to get someone’s attention. His frustration does not excuse the tone or content of this letter.

The Arbitrator observed that the relationship between the parties in this case “has been marked from the outset, by mutual distrust, and lack of candour.” The relationship between counsel also broke down, and this prolonged and complicated resolution of the dispute. However, although Mr. Sawhney’s conduct contributed to these problems, Gore Mutual must bear the greater responsibility for the post-decision delays. An Arbitrator’s order changes the balance of the parties’ obligations. Because of Gore Mutual’s long delay in complying with the Arbitrator’s order, for which no adequate explanation was given, Gore Mutual shall pay Mr. Singh’s expenses incurred in implementing the arbitration decision.

C. Special Award

Mr. Singh asked the Arbitrator to order an additional special award based on Gore Mutual’s delay in implementing the arbitration decision. The Arbitrator found – quite properly, in my view – that the doctrine of functus officio prevented him from making any further order. Mr. Singh renewed his request at the appeal level.

An insurer’s non-compliance with an arbitrator’s order to pay benefits is a very serious matter. In appropriate cases, it may warrant a special award under s. 282(10) of the Act[^37] or a referral to the Superintendent under s. 288. However, this is not such a case. In the end, the prevailing consideration is Mr. Singh’s deceit.

V. APPEAL AND VARIATION EXPENSES

Director’s Delegate Draper described the different approach to appeal expenses in Guzman and Dominion of Canada General Insurance Company:

Reasonable access is also a concern for appeals, but the considerations are somewhat different. An appellant has already had an opportunity to present his or her case to an arbitrator, and has been given a written decision, with reasons.³⁸

The main issue in the appeal was Mr. Singh’s disagreement with the Arbitrator’s assessment of the evidence. This did not justify bringing an appeal. Mr. Singh’s submissions fell far short of establishing reviewable error. His bias and Charter arguments were unsubstantiated. Overall, his appeal had little merit. In addition, Mr. Sawhney’s conduct of the appeal was dilatory and antagonistic.

In contrast, although Gore Mutual’s conduct at the arbitration level deserved the arbitrator’s criticism, its conduct of the appeal tended to expedite the process. For example, it limited its cross-appeal/variation application to the narrow issue of the benefit rate.

Because Mr. Singh applied for arbitration before the Bill 59 amendments to the expenses provisions took effect, I do not have authority to order him to pay Gore Mutual’s expenses. The parties shall bear their own appeal expenses.

October 18, 2002

Nancy Makepeace Director’s Delegate

Date

APPENDIX: Arbitrator’s Decision of March 20, 2001

This letter will serve as my decision regarding interest on Income Replacement Benefits (IRBs).

In this case, the resolution of the issue calls for comment on three sub-issues:

• from what date should interest be computed? (“the start date”)

• is interest payable on interest? (“compound or simple”)

• does the arbitrator have jurisdiction to order the payment of interest for any period post- dating his decision? (“the end date”)

(i) The Start Date

The parties’ attempts to resolve the interest issue failed in part because they calculated interest from different start dates. Ms. Singh’s counsel produced a set of calculations that computed interest as of the date of the accident. The Insurer’s claims representative took the position that interest did not begin to accrue until March 1995, approximately a year after the accident.

In a letter dated January 28, 2001, I reiterated what I had stated in the decision, namely that interest on IRBs accrued from July 30, 1994 asked the parties to prepare and exchange detailed calculations, and thereafter, to exchange specific criticisms of the other’s calculations.

Mr. Singh’s counsel indicated in a letter to Director’s Delegate Susan Naylor, dated February 7, 2001, that he was not in a position to recalculate the interest from the proper start date, and that the difference should simply be ignored. However, I note that in the same letter, Mr. Sawhney did perform the calculations necessary to bring the interest calculations up to date.

After some delay, the Insurer’s counsel responded on February 28, enclosing a set of calculations prepared by his client, that accrue interest from the appropriate start date. Mr. Singh’s counsel has not commented on this set of calculations.

For reasons related to the rate of interest, I prefer the calculations prepared at Mr. Singh’s behest. However, I have truncated the period interest is payable, to bring the calculations in line with the proper start date.

(ii) Simple or Compound

Gore initially used a rate of 5% per annum. It later acknowledged that the correct rate was 2% per month compounded. More recently, it advised that it was calculating interest by “multiplying an amount owed by the number of days it was owed for, and then multiplying that by .000667. As I understand it, a daily rate of .000667 equates to a monthly rate of 2%. I indicated in my January 28 letter that a daily rate was appropriate provided that a compounding element was added. The detailed calculations subsequently performed by the Insurer’s claims representative determined the number of days that each bi-weekly payment was overdue and multiplied it by .000667, without any compounding of the interest. The accompanying letter by counsel indicates that the legislation does not intend for the payment of interest on interest.

In contrast, the calculations filed by Mr. Singh’s counsel compute the amount outstanding at the end of each month on the basis of interest that is levied on the outstanding principal and interest.

Section 68 of the SABS-94 provides for the payment of interest in the following terms:

if payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. [emphasis added]

The Concise Oxford Dictionary defines compound interest as “interest payable on capital and its accumulated interest.” Webster’s Collegiate Dictionary defines it as “interest computed on the sum of an original principal and accrued interest.”

Based upon these authorities, I can see no basis for the submission that the legislation does not intend for the payment “interest on interest.”

The only other specific criticism offered of Mr. Singh’s calculations is the inappropriate start date (which can be adjusted to reflect the proper start date). In the circumstances, I prefer the Applicant’s calculations over the Insurer’s.

(iii) The Stop Date

The calculations filed by Mr. Singh include interest computed to February of this year. The calculations filed by the Insurer compute interest to September of 1998. Neither party filed submissions in support of their position, leaving me to determine the matter without any assistance.

An arbitrator does not grant declaratory relief in the traditional sense. His ruling determines the parties’ rights and obligations as of the date of his decision. In my view, this includes determinations regarding interest. The arbitrator is bound to rule on the insured person’s entitlement to interest, and if necessary to determine the amount of interest accruing to the date of his decision, but not beyond.

Mr. Singh’s counsel has asked me to make a number of rulings regarding matters that post-date the release of my decision. In my letter of February 16, 2001, I advised that the Commission had not been granted enforcement powers, but that section 282 (14) of the Insurance Act provides that an arbitrator’s order can be filed with the Ontario Court (General Division), now the Superior Court of Justice, whereupon it is enforceable in the same way as a judgement of the Court.

Northern & Central Gas Corp. Ltd. v. Kidd Creek Mines Ltd. (1988), 1988 CanLII 4649 (ON CA), 66 O.R. (2d) 11 (C.A.) provides that in ordinary circumstances, judgements of administrative tribunals that are filed with the Court are subject to the imposition of post-judgement interest. It strikes me that an argument can be made that the post-judgement interest should be calculated in accordance with section 68 of the SABS-94, or that the Court should exercise is discretion pursuant to section 130(1)(b) of the Courts of Justice Act to award interest at the rate of 2% per month compounded monthly. However, that is not a matter for me to determine.

The procedure followed by the parties in Northern & Central Gas Corp. Ltd. v. Kidd Creek Mines Ltd. suggests the proper practice. In that case, the gas company paid the refund ordered by the Ontario Energy Board, but refused to pay the interest that accrued between the date of the Board’s decision and the date of payment. In response, the customer filed the Board’s decision with the local registrar of the court, and then took out a writ of seizure and sale for the collection of the accrued interest. The gas company responded by bringing an application before the court to have the writ set aside on the grounds that no post-judgement interest was payable. As noted above, the Court of Appeal eventually determined that the gas company was responsible for the payment of post-judgement interest.

l conclude that my task is to fix the amount of the interest owing to the date of my decision. If the Insurer refuses to pay post judgement interest, or takes issue with Mr. Singh’s calculations, he may file a copy of my decision with the Registrar of the Superior Court of Justice and seek to enforce payment of the additional interest. At that point, the Insurer can challenge Mr. Singh’s demand by way of a motion to the Court.

(iv) Conclusion

As I noted earlier, I prefer the calculations prepared at Mr. Singh’s behest, but that they must be modified to account for the improper start date. The proper start date is July 30, 1994. My decision is dated July 3, 1998. Accordingly, the interest accrues over a period of roughly 47 months. The 47-month point on Mr. Singh’s table is reached as of February 1998. At that point, balance including principal and interest, accounting for payments made by the that date is $54,821,46. I order the Insurer to pay this sum. I am aware of the fact that subsequent payments have been made, and, as noted above, the balance will bear post-judgement interest. I leave it to the parties to calculate the balance owing. In the event the parties cannot agree on the amount outstanding, Mr. Singh may seek to enforce the judgement in accordance with the procedure referred to above.

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994, Ontario Regulation 776/93.
2. 2Arbitration decision, p.4.
3. 3Arbitration decision, p. 20.
4. 4Arbitration decision, p. 21.
5. 5In addition, after reporting “significant recovery” in October 1995, Dr. Kachooie provided a much more guarded prognosis in January 1996, apparently in response to Dr. Isaac’s request that he review his earlier opinion. This may also have affected the weight given his opinion.
6. 6Arbitration decision, p. 22.
7. 7Arbitration decision, p. 18.
8. 8Arbitration decision, pp. 17-18.
9. 9Dr. B.D. Sood, a psychiatrist, assessed Mr. Singh at Gore Mutual’s request in September 1996. [footnote added]
10. 10Arbitration decision, p. 18.
11. 11Arbitration decision, p. 23.
12. 12Arbitration decision, p. 23.
13. 13Arbitration decision, p. 28.
14. 14As the Director of Arbitrations pointed out, s. 286 of the Act also prevented the Arbitrator from varying, revoking or replacing his own order while that order was under appeal.
15. 15Letter dated February 9, 2001.
16. 16In reaching this conclusion, the Arbitrator also noted that Mr. Singh did not deliver any run sheets to Gore Mutual’s adjuster at their first meeting.
17. 17Arbitration decision, p. 26.
18. 18Ibid., emphasis added.
19. 19By virtue of s. 5, “employment” includes self-employment.
20. 20I have some concern whether Gore Mutual should have brought this dispute forward as an appeal rather than a variation application, because the Arbitrator’s error, in failing to apply the formula set out in s. 81, clearly amounts to an error of law. However, as the error seems to have resulted from an oversight, there was some basis for dealing with it as a variation order.
21. 21Pinto and General Accident Assurance of Canada, (OIC P97-00031, November 26, 1997).
22. 22Arbitration decision, p. 36.
23. 23For other decisions taking this approach, see the Director’s decisions in McDonald and State Farm Insurance Companies, (OIC P-001347, September 29, 1995); and Simpson and Royal Insurance Company of Canada, (OIC P-003863, August 22, 1996). [footnote in original]
24. 24For example, see Allison and Markel Insurance Company of Canada, (OIC P-001231, August 21, 1996); and Rambally and Markel Insurance Company of Canada, (OIC P96-00047, February 6, 1997). [footnote in original]
25. 25Maas and State Farm Mutual Automobile Insurance Company, (OIC P96-00080, December 8, 1997), pp. 7 and 9.
26. 26Arbitration decision, pp. 33-34.
27. 27Arbitrator Palmer defined such conduct as “unreasonable,” within the meaning of s. 282(10) of the Act, in Plowright and Wellington Insurance Company, (OIC A-003985, October 29, 1993). The definition has consistently been adopted in subsequent decisions. [footnote added]
28. 28Arbitration decision, p. 35.
29. 29Section 62 prescribes that weekly benefits become overdue “fourteen days after the insurer receives an application,” and, thereafter, “at least once every second week while the insured person remains entitled to receive" them. Subsections 62(5) and (6) create an exception where the insurer requests a health practitioner’s certificate, and more than six weeks have elapsed without the certificate being furnished.”
30. 30R.S.O. 1990, c.S.22, as amended.
31. 31See also Ontario (Ministry of Transportation) v. Tripp, 1999 CanLII 3762 (ON CA), [1999] O.J. No. 2832 (Ont.C.A.)
32. 32Sebastian was decided under similar provisions in the predecessor to the SABS-1994, O.Reg. 672, as amended, the Statutory Accident Benefits Schedule – Accidents before January 1, 1994. [footnote in original]
33. 33(FSCO P00-00050, June 5, 2001), at p. 21.
34. 34By its very nature, the question of interest accruing after an arbitrator’s decision is seldom an issue before Commission adjudicators. I know of no other decisions dealing squarely with the issue, but see C.L. and Zurich Insurance Company, (FSCO A96-001793, August 19, 1998), revd on appeal without comment on this issue, (FSCO P98- 00043, March 24, 1999) and Raymond and Halifax Insurance Company, (FSCO P99-00019, December 17, 1999).
35. 35In Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] S.C.J. No. 34 (S.C.C.), at para. 11, Gonthier C.J., writing for the majority of the Court, stated, “one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.”
36. 36Lionti and Security National Insurance Company, (FSCO A99-000823, December 27, 2000). Although the Arbitrator was dealing with s. 46 of the SABS-1996, his analysis applies equally to the almost identical wording of s. 68 of the SABS-1994. Lionti was followed in Bourcier and Primmum Insurance Co., (FSCO A01-000915, May 16, 2002), released after the hearing in this matter.
37. 38(FSCO P-007209, January 18, 1996).
38. 37For example, see Reith and Halifax Insurance Company, (FSCO P98-00037, July 16, 1999).