Neutral Citation: 2002 ONFSCDRS 35

FSCO A01-000245

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BALJIT SINGH

Applicant

and

COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

John Wilson

Heard:

December 21, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Annelis Thorsen for Mr. Singh

Alexander M. Voudouris for Coseco Insurance Co./HB Group/Direct Protect

Issues:

The Applicant, Baljit Singh, claims to have been injured in a motor vehicle accident on November 7, 1998. He applied for statutory accident benefits from Coseco Insurance Co./HB Group/Direct Protect ("Coseco"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Singh has brought a motion pursuant to section 65 of the Dispute Resolution Practice Code — Third Edition for interim benefits to be paid to him pending the resolution of his dispute with Coseco/

The issue on this motion is:

1. Is Mr. Singh entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act?

Mr. Singh also claims interest on any amounts owing and his expenses incurred on this motion.

Result:

1. Coseco shall pay Mr. Singh interim benefits, together with any outstanding interest.

2. Mr. Singh shall have his expenses in this motion.

EVIDENCE AND ANALYSIS:

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

As with most discretionary powers, interim benefit awards are not to be made routinely. It is generally accepted that resort to interim payment orders is limited to cases of merit, need or urgency, or a blatant disregard of the requirements of the Schedule.

Arbitrator Alves in Coutu and Wawanesa Mutual Insurance Company, (OIC A97-001916, June 5, 1998) at page 14 noted that: "this is a discretionary power to be exercised in appropriate circumstances, not granted routinely."

Arbitrator Allen in Harkness and Economical Mutual Insurance, (OIC A96-001420, December 10, 1996) summarized the criteria for interim benefits applications:

...to consider limited issues on a prima facie basis: to affect a limited period of time-often the period between the date of the interlocutory and the final order; and to hear matters where time considerations are a factor. With applications for interim benefits, then, it is understandable why in the interest of speed and urgency the applicant is required to present only a prima facie case for entitlement and to show the urgent nature of the relief sought.

Although at least one arbitrator has opted for an enhanced level of proof in interim benefit matters, it is clear that an interim award is a summary matter to be dealt with on limited evidence. (see Kolonjari and Co-operators General Insurance Company, (FSCO A97-002059, November 18, 1998).

To find out whether he is eligible for an interim award of income replacement benefits, Mr. Singh must bring forward at least prima facie evidence that he meets the requirements for such benefits, and that there is some urgency connected to the receipt of those benefits. Prima facie evidence can be the establishment of a fact in the absence of evidence to the contrary (R. v. Proudlock [1979] 1 S.C.R.)

Black's Law Dictionary (West Publishing Company, St. Paul Minn., 1968) defines a prima facie case as "a case which has proceeded upon sufficient proof to that stage where it will support finding, if evidence to the contrary is disregarded." Jurisprudence at the Commission has approved of this approach. (see Cripps and Axa Insurance (Canada), (OIC A-013360, August 8, 1997).

Having determined that an applicant meets the general criteria for such an award, an arbitrator then must determine what, if any, would be the actual award.

As noted, an interim application is to cover only a limited period of time. Since it may be re-claimed by the Insurer if not upheld at the hearing, the likelihood and the consequences of such a result at the final hearing may be taken into consideration .

The gist of the Insurer's argument has been that Mr. Singh is not credible, and therefore, may not succeed at arbitration.

Mr. Singh's case is contained in his affidavit, together with exhibits, which was tendered on his behalf by Ms. Thorsen. In addition, Mr. Singh, himself, was present and available for cross-examination.

Mr. Singh's affidavit set out the circumstances surrounding the accident, his injuries and his subsequent departure from the workforce. He maintained that his job was terminated due to the lengthy and frequent absences from work, arising from the accident. In addition, he filed, as an exhibit to his affidavit, an e-mail letter from his employer, Mr. Glen Peer, dated March 2, 1999, expressing his concerns about the multiple absences from work and their effect on his job performance.

Mr. Singh's claim is complicated, somewhat, by his attempt to keep working past the accident date, and the initial attribution of his back and flank pain to renal colic. However, on the basis of the initial disability certificate, Mr. Singh's affidavit, and on the later medical opinions referred to therein, I accept that there is credible evidence that his back and flank pain was due to motor vehicle accident-related causes rather than renal colic.

Although a different picture may well emerge when the issue is aired fully at the hearing, I find that Mr. Singh has met the onus of providing prima facie evidence in support of his accident-related disability for the purposes of interim benefits.

The Insurer called Mr. Singh's former employer, Mr. Peer, to testify concerning the circumstances of Mr. Singh's dismissal, and to counter his evidence of the reasons for leaving the workforce. Mr. Peer's testimony bears on both Mr. Singh's potential entitlement and the credibility of the evidence contained in his affidavit. Essentially, he testified that he had no knowledge of accident-related injuries, and that Mr. Singh was laid off due to a downturn in the business cycle. In any event, he would not have been kept on past the completion of his last project.

Mr. Peer testified that he kept no paper records of absences of key employees such as Mr. Singh. Looking back, however, he believed that Mr. Singh was laid off because he had become redundant with a turndown in business, and was the key person with the least seniority who could be let go with the minimum of fuss.

The e-mail letter filed by Mr. Singh, written by Mr. Peer, prior to Mr. Singh's departure, creates a very different impression. Mr. Peer specifically links Mr. Singh's absences to concerns about his future with the company. That Mr. Singh's absence is disability-related is acknowledged, and a clear link is made between the continuing pattern of absences and an uncertain employment future. There is no mention of a downturn in work, or other extraneous matters that he now maintains were the real reasons for Mr. Singh's dismissal.

When asked in cross-examination, however, Mr. Peer did not disavow the statements contained in his original letter to Mr. Singh. I have no doubt that Mr. Peer believes that, in retrospect, Mr. Singh was a prime candidate for dismissal, with or without the accident.

Most decisions are based on the evaluation of a variety of factors. Getting rid of someone with high absenteeism may also have been an effective way of addressing a number of issues. However, it is clear from the contemporaneous letter that continued absenteeism was a factor that threatened his future with the company.

Mr. Singh has testified that his absenteeism was due to accident-related injuries. Mr.Peer’s testimony confirms that the absences took place. It confirms that he presently believes that the absences were not accident-related, and that he kept no written records of Mr. Singh's attendance or the reasons given for his absence.

Taken in the conjunction with the contents of his e-mail of March 2, 1999, Mr. Peer’s testimony does not necessarily impugn Mr. Singh’s credibility. Rather, it speaks to the fact the Mr. Peer currently has secondary considerations to reinforce his original, stated, reasons for dismissing Mr. Singh, and that Mr. Peer’s perception of the event has changed over time. Even if it is credible testimony, his current opinion adds little to an understanding of the reasons for dismissal, as enunciated at the time.

Although the decision to terminate Mr. Singh was likely a cumulative one, involving factors other than just his absence, I find that Mr. Peer’s e-mail letter, which was contemporaneous to the events in question, most clearly reflects the dominant reasons for dismissal at that time.

Mr. Voudouris, counsel for Coseco, was quite frank that he had based his case on Mr. Singh's credibility, or the lack of it. Although Mr. Singh’s testimony was by way of affidavit, he was present at the hearing, and could have been cross-examined. Mr. Voudouris chose not to cross-examine, but rather to challenge credibility on the basis of collateral evidence. As Lord Herschell noted in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.):

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

Short of recalling Mr. Singh, again, to testify, he was deprived of an opportunity to respond directly to the challenges to his credibility. Indeed, it is possible to infer that the credibility questions were not put to Mr. Singh directly, because they may well have elucidated a reasonable explanation. The attempted use of Mr. Peer's evidence to discredit Mr. Singh falls squarely within the rule of Browne v. Dunn, and any such evidence as to credibility should be disregarded.

I find that Mr. Singh's affidavit provides credible, prima facie evidence that an accident-related disability precipitated his loss of work, and that he was unable to carry out the essential tasks of his pre-accident employment due to that disability.

In addition, of course, to be eligible for interim benefits, Mr. Singh must show some urgency. The Canadian Oxford Dictionary describes urgent as:

I demanding or requiring immediate action or attention: pressing 2. expressing a need for prompt action or attention; insistent (an urgent call for help)

Urgency clearly does not mean that a person must be in extremis before being given assistance. I accept that the loss of a well-paying position would create a financial emergency in most families. Indeed, that is Mr. Singh's evidence. I note, however, that Mr. Singh did not file a request for interim benefits until relatively late in the process. That is certainly consistent with an inference that the sense of urgency increases as family resources are dissipated with the passage of time.

In the absence of more precise evidence, I find that the required urgency dates from the filing of the application for interim benefits, and not before. I find, therefore, that Mr. Singh is entitled to interim accident benefit payments commencing September 4, 2001, when the claim for interim benefits was first raised at pre-hearing. This interim order is, of course, subject to the ultimate decision of the hearing arbitrator in this matter.

EXPENSES:

Mr. Singh was successful in his motion. I, therefore, order that the Insurer pay his expenses in this motion. Should the parties not be able to agree on an appropriate amount for expenses, I may be spoken to.

February 14, 2002

John Wilson

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 35

FSCO A01-000245

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BALJIT SINGH

Applicant

and

COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Coseco shall pay Mr. Singh interim benefits, together with interest on outstanding payments.

2. Mr. Singh is entitled to his expenses in this motion.

February 14, 2002

John Wilson

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 2, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00.