FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2002 ONFSCDRS 47
FSCO A01-001374
BETWEEN:
STEVE BALAUSIAK
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
AND BETWEEN
GERTRUD BALAUSIAK
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
PRE-HEARING DECISION
Before: Lawrence Blackman
Heard: February 26, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Jeffrey Raphael for Mr. and Mrs. Balausiak
John D. Dean for Allstate Insurance Company of Canada
Issues:
The Applicants, Steve Balausiak and Gertrud Balausiak, were both injured in a motor vehicle accident on October 2, 1999. Disputes arose with their first-party insurer, Allstate Insurance Company of Canada ("Allstate") as to the Applicants' individual entitlement to specific statutory accident benefits potentially payable under the Schedule.1
The Applicants applied for mediation, which did not resolve the issues in dispute. Separate Reports of Mediator for each Applicant, each bearing a different Commission mediation file number, were issued on January 19, 2001.
Mr. and Mrs. Balausiak subsequently each applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8 (the "Insurance Act"), as amended, by separate Applications for Arbitration (the "Applications"). Each Application was separately marked received by the Commission on October 24, 2001. Accompanying each Application was a cheque in the amount of $100 made payable to the Minister of Finance, in accordance with Section D of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) (the "Code").
Under Rule 25.6 of the Code, the Registrar is required to deliver a copy of the completed Application for Arbitration to the other parties. An insurer, pursuant to Rule 26 of the Code, has within 20 days of receipt of the Application to respond, including the option of serving and filing a Response by Insurer to the Application for Arbitration (the "Response"). Under Section D, paragraph 2.1 of the Code, the insurer assessment ($3,000, if neutral evaluation is not commenced) is triggered by the Commission on the due date for filing the Response. Rule 30 ("Combining Applications") of the Code mandates that where two or more Applications for Arbitration have been filed, the Registrar or an arbitrator will notify the parties in writing of the Commission's intention to proceed with one of various procedural options, where it appears that the Applications have "an issue or question of law, fact or policy in common" or that the application of Rule 30 would "result in the most just, quickest and least expensive means to deal with the Applications" The options include combining the proceedings or scheduling the proceedings to be heard at the same time or one immediately after the other. Under Rule 30, a party may object to the Commission's stated intention. An arbitrator will then consider the objection and make such orders as is considered just.
These rules were not followed by the Commission.
Rather, by letter dated October 25, 2001 directed to the Applicants' counsel (copied, inter alia, to the Insurer) and signed by the case administrator, the Commission responded to the Applications received the prior day by stating, as a fait accompli, that the two Applications had been combined. This decision was made by someone without authority under the Code, who failed to give the parties the requisite written notice and who failed to give the parties an opportunity to object as provided by Rule 30. Furthermore, the decision to combine was made, by all appearances, without obtaining the consent of the parties, contrary to section 9.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.2 The letter returned to the Applicants' counsel one of the $100 cheques previously filed.
By separate letter to Allstate (copied, inter alia, to the Applicants' counsel), also dated October 25, 2001, the case administrator acknowledged that Applications (in the plural) had been received on behalf of Mr. and Mrs. Balausiak, but indicated that only a single $3,000 assessment would be billed at a later date to the Insurer.
These two matters then jointly proceeded, under one Commission arbitration file number, to a pre-hearing discussion held on February 26, 2002, presided over by myself.
I conducted the pre-hearing discussion on the basis that in the circumstances of these cases, as set out below, it was sensible to have a joint pre-hearing. However, I also proceeded on the basis that the purported combining of these files by the case administrator was invalid and non-binding. Accordingly, I sought submissions from the parties as to their positions regarding how these matters should proceed, exercising my adjudicative discretion pursuant to Rule 81 of the Code, in setting aside, in the interests of expediency and cost effectiveness and in the specific circumstances of these cases, the precise notice requirements of Rule 30 of the Code.
Both parties indicated their wish to have these two Applications combined. In the particular circumstances of these cases, I am persuaded that, pursuant to Rule 30 of the Code, these two proceedings should be combined, for the following reasons:
Mrs. Balausiak's claim involves only a single $900 account for a home assessment by Metro Assessment and Rehabilitation Centre ("Metro"), while Mr. Balausiak's claim involves, in addition to a separate but apparently similar home assessment, claims for approximately $7,000 of physiotherapy and chiropractic treatment;
There appears, prima facie, to be an overlap of fact, law and possibly policy regarding the two home assessments. Combining these Applications would reduce the possibility of, inter alia, inconsistent results (although scheduling them to be heard before the same arbitrator, either at the same time or one after the other, would presumably accomplish the same goal);
There is presently an overlap of intended witnesses for both cases, including one or more representatives of Metro as well as Mrs. Balausiak, who intends to give evidence regarding her own claim as well as that of her husband. Combining Mrs. Balausiak's file with that of her husband would not appear to significantly lengthen Mr. Balausiak's hearing and would presumably be more time efficient than having two separate proceedings;
Charging a separate $100 filing fee and a $3,000 insurer assessment for Mrs. Balausiak's essentially $900 claim in addition to the same assessments being charged for Mr. Balausiak's claim would not produce the most just, quickest and least expensive resolution of these disputes; and,
These matters arise out the same accident. Both Applicants are represented by the same counsel. In both cases the Insurer is the same and is represented by the same counsel. All parties consent to combining these proceedings.
March 18, 2002
Lawrence Blackman Arbitrator
Date
FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2002 ONFSCDRS 47
FSCO A01-001374
BETWEEN:
STEVE BALAUSIAK
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
AND BETWEEN
GERTRUD BALAUSIAK
Applicant
and
ALLSTATE 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:
- These proceedings are hereby combined.
March 18, 2002
Lawrence Blackman 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 and 114/00.
- See Dhir and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A98-001394, September 28, 1999).