FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2002 ONFSCDRS 206
FSCO A02-000617
BETWEEN:
MICHAEL HILL
Applicant
and
ING-HALIFAX INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
David Muir
Heard:
Written submissions were received by October 31, 2002.
Appearances:
Shelley Martin for Mr. Hill
Chris Blom for ING-Halifax Insurance Company
Issues:
The Applicant, Michael Hill, was injured in a motor vehicle accident on January 21, 1995. Mr. Hill has applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
In the course of a pre-hearing in this matter the parties agreed to put a preliminary issue before an arbitrator, in relation to claims made for physiotherapy expenses. A schedule for the delivery of written submissions was established. ING provided a letter dated October 22, 2002 setting out its position, without elaboration. Submissions were received from Mr. Hill on October 31, 2002. By letter dated November 28, 2002, ING advised that it would not be delivering any reply materials in response to Mr. Hill's submission.
The preliminary issue as set out in the arbitrator's pre-hearing letter is:
- Is Mr. Hill precluded from proceeding to mediation pursuant to subsection 71(1) of the Schedule?1
Result:
- Mr. Hill is not precluded from proceeding to mediation pursuant to subsection 71(1) of the Schedule?
Mr. Hill was injured in an automobile accident on January 21, 1995. In March 1996 ING made arrangements for a Med/Rehab Designated Assessment Centre ("DAC") assessment. The OCF11 sent to the DAC advised that Mr. Hill was receiving physiotherapy. The assessment was required to determine whether the treatment was necessary as a result of injuries suffered in the car accident. Mr. Hill did not attend the DAC and offered no explanation at the time. By letter dated March 6, 1996, ING advised that it would be "unable to pay any medical expenses submitted due to non-compliance."
In February 2000 ING received a letter from Quinte Physiotherapy Clinic advising that Mr. Hill had attended at the clinic for further physiotherapy treatment for injuries suffered in the January 1995 accident. By letter dated April 24, 2002, ING denied these and other claims.
It is the position of ING that Mr. Hill is not entitled to advance claims for the treatment expenses as a result of the failure to attend the DAC in March 1996. In this regard, ING relied upon section 39(12)(a).
Mr. Hill takes the position he is not precluded from proceeding to mediation (and arbitration should mediation fail) of his claims because he has not failed to make himself reasonably available for an assessment as required by section 39 of the Schedule. He submits that ING had no right to require him to attend an assessment in March 1996 because it had not obtained a certificate under section 37 of the Schedule. He also submits that ING failed in its responsibility to refer him to the closest DAC qualified to assess the relevant impairments. Mr. Hill also submits that section 39(12) only applies to the expenses for which the DAC was arranged, and not "subsequent other goods and services."
The relevant portions of section 71(1) of the Schedule provides:
71(1) No insured person shall commence a mediation proceeding under section 280 of the Insurance Act unless he or she,
(b) when required, has submitted to and provided the information required for an assessment under section 23, 25, 39, 45, 50 or 64, as the case may be; and...
Limited evidence was offered in support of the parties' submissions. Mr. Hill provided some evidence that the DAC to which he was referred by ING was 122 kilometres from his home and that there was another which was 84 kilometres from his home. He also asserts by implication, that the DAC closest to his home was qualified to perform the relevant assessment. These "facts" were not challenged by ING. I accept these facts as alleged by Mr. Hill.
As for the failure of ING to obtain a section 37 certificate, there is nothing from ING contradicting the assertion by Mr. Hill that such a certificate was ever obtained. I find that ING did not obtain such a certificate although required by sections 37(1) and 39(1) to do so.
I find that Mr. Hill is not precluded from proceeding to mediation (and hence to arbitration) because he has not failed to make himself reasonably available for an assessment. I agree with the submission of Mr. Hill that ING failed to comply with its obligations under the Schedule to schedule the proposed assessment at the DAC closest to Mr. Hill's home as required under section 39(6) and that it failed as well to obtain the required certificate under section 37. These provisions are mandatory.2
I find that the requested assessment in March 1996 was not authorized under the Schedule. Accordingly, Mr. Hill did not fail to make himself reasonably available for an assessment as required by section 39 and therefore is not precluded from commencing a mediation proceeding under section 80 of the Insurance Act, pursuant to section 71(1) of the Schedule.
EXPENSES:
Neither party made any submissions with respect to expenses. The preliminary issue was raised by ING, thus requiring this additional procedural step in the arbitration process. Having raised it, however, ING made no substantial submission in support of its position, and the preliminary objection to Mr. Hill proceeding to arbitration was effectively abandoned. For this reason I find Mr. Hill is entitled to his reasonable expenses of this preliminary issue hearing.
I leave it to the parties to agree to the appropriate expenses of this preliminary issue hearing. If they are unable to do so they may raise the matter with me.
December 31, 2002
David Muir
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 206
FSCO A02-000617
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MICHAEL HILL
Applicant
and
ING-HALIFAX INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
ING's preliminary issue that Mr. Hill is precluded from proceeding to mediation pursuant to subsection 71(1) of the Schedule is dismissed.
Mr. Hill is entitled to his reasonable expenses of this preliminary issue hearing, pursuant to section 282(11) of the Schedule.
December 31, 2002
David Muir
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
- See in respect of the requirement to obtain a certificate under section 37: Defreitas and Travelers Indemnity Company, (FSCO A97-000734, October 5, 1998). See also appeal decision Lopez and Allstate Insurance Company of Canada, (FSCO P98-00058, April 30, 1999).