Neutral Citation: 2002 ONFSCDRS 195
FSCO A02-000335
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MICHAEL ALPHONSE MEEHAN
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
AND BETWEEN
ANNE BEATRICE MEEHAN
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
DECISION ON A PRELIMINARY ISSUE
Before:
Joyce Miller
Heard:
Written submissions were received on November 19, 2002.
Appearances:
Najma Rashid for Mr. and Mrs. Meehan
Andrew K. Lee for Wawanesa Mutual Insurance Company
Background:
The Applicants, Michael Alphonse Meehan and Anne Beatrice Meehan, were both injured in a motor vehicle accident on September 26, 1999. They applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule1 Disputes arose with Wawanesa as to the Applicants' individual entitlement to statutory accident benefits. The parties proceeded to a joint mediation on January 11, 2002.
The parties were unable to resolve their disputes through mediation. The Applicants filed a joint application for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The application for arbitration of both Applicants, however, was not formally joined pursuant to Rule 30 of the Dispute Resolution Practice Code ("Code").
A pre-hearing was held on June 6, 2002. In addition there was a further failed mediation on July 5, 2002 with respect to new issues added in relation to home and farm modifications. Subsequent to the pre-hearing, entitlement to income replacement benefits was terminated for both Applicants. Although the issue of income replacement benefits had not been mediated, the Applicants filed a motion for interim benefits.
On October 28, 2002, the motion for interim benefits was scheduled to proceed. On the day of the motion, the Applicants advised that their representative was not available to argue the motion. The motion was adjourned to October 29, 2002. However, it did not proceed on that day because the Applicants did not file any materials to support the motion. Nevertheless, Arbitrator Blackman used the opportunity to have a pre-hearing in order to clarify a number of issues.
At this pre-hearing, Arbitrator Blackman made a number of orders including the following order:
Pursuant to Rule 30 of the Dispute Resolution Practice Code, on the consent of both parties and considering the overlap of evidence to be given at the hearing, the claims of Mr. and Mrs. Meehan shall be heard at the same time by the same hearing arbitrator. [emphasis in original]
As well, Arbitrator Blackman ordered that the parties would have until November 19, 2002 to serve and file submissions, including case law, as to whether or not the claims of Mr. and Mrs. Meehan should be combined as one file.
The preliminary issue is:
- Should Mr. and Mrs. Meehan's applications for arbitration be combined pursuant to Rule 30 of the Code?
Result:
Mr. and Mrs. Meehan's applications for arbitration should be combined.
Expenses regarding this preliminary issue hearing are left to the discretion of the hearing arbitrator.
SUBMISSIONS:
1. Wawanesa's Submissions
Wawanesa submits that Mr. and Mrs. Meehan live on and operate a beef and dairy farm together. Their claims for housekeeping expenses, child tutoring, transportation expenses, home and farm modifications and income replacement benefits are interrelated and as a result should be dealt with together in order to avoid duplication. Wawanesa submits that there will be a number of the same witnesses that will testify in relation to the claims of both Applicants including the same family physician and therapists that treated the Applicants pre and post accident. There may also be surveillance evidence relevant to both parties.
Wawanesa submits that there are also common issues of law and possibly policy in relation to the mix of claims of the Applicants for accident benefits in relation to the home and farm. There are a number of legal issues that will likely arise as a result of the unique circumstances of the Applicants. These issues should be dealt with together in order to avoid potentially inconsistent results.
Wawanesa submits the claims of the Applicants have proceeded together procedurally from the outset. The applications for mediation and arbitration and the responses of the respondents have been filed jointly throughout. The mediations and pre-hearings have proceeded together. The applications for arbitration have been scheduled to be heard together before the same hearing arbitrator on consent for the weeks of May 5 and 12, 2003. Wawanesa submits that the issues in dispute with respect to both the Applicants are inseparable because of the unique circumstances in the present case. Therefore, for all intents and purposes, there has been only one usage of the system in relation to the claims of the Applicants.
Wawanesa submits that the parties agree that the applications for arbitration should be combined. It submits that in the circumstances, combining applications for arbitration will result in the most just, quickest and least expensive means to deal with the applications.
2. Mr. and Mrs. Meehan's Submission
Mr. and Mrs. Meehan submit they agree with Wawanesa's submissions and consent to the consolidation of their claims.
THE LAW
Rule 30 of the Code provides that where two or more applications for arbitration have been filed and it appears that they have an issue or question of law, fact or policy in common; or the application of this Rule will result in the most just, quickest, and least expensive means to deal with the applications, then the Registrar or an arbitrator will notify the parties in writing of the intention to:
combine the proceedings;
schedule proceedings to be heard at the same time;
schedule one or more proceedings to be heard one immediately after the other or by the same arbitrator; or
suspend the scheduling of the proceeding or proceedings until a determination of any one of them.
FINDINGS
The circumstances of Mr. and Mrs. Meehan are unique in that at the time of the accident they both lived and worked on their farm and their duties with respect to their home and farm were intertwined. I agree with the submissions of both parties that the claims of Mr. and Mrs. Meehan should be combined. There are clearly common issues of fact and law that make the combining of the claims "the most just, quickest and least expensive means to deal with the Applications."
There is clear overlap in the evidence to be presented. For example, the evidence regarding the issues of farm modifications, housekeeping and home modifications affect both the parties. The witnesses testifying on their behalf would be the same for both on these issues. As well the pre and post accident medical practitioners are the same for both. Combining the claims would clearly shorten the length of the hearing and save on expenses.
Accordingly, I find that pursuant to Rule 30 of the Code the arbitration claims of Mr. and Mrs. Meehan should be combined.
EXPENSES:
Expenses regarding this preliminary issue hearing are left to the discretion of the hearing arbitrator.
December 11, 2002
Joyce Miller Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 195
FSCO A02-000335
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MICHAEL ALPHONSE MEEHAN
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
AND BETWEEN
ANNE BEATRICE MEEHAN
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. and Mrs. Meehan's applications for arbitration should be combined pursuant to Rule 30 of the Dispute Resolution Practice Code.
December 11, 2002
Joyce Miller Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.