Neutral Citation: 2002 ONFSCDRS 49
FSCO A01-001305
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BRUNO LARIZZA
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
AND BETWEEN
GIUSEPPINA LARIZZA
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
PRE-HEARING DECISION
Before: Lawrence Blackman
Heard: February 27, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Alon Rooz for Mr. and Mrs. Larizza
Ryan M. Naimark for Allstate Insurance Company of Canada
Issues:
The Applicants, Bruno Larizza and Giuseppina Larizza were both injured in a motor vehicle accident on December 19, 2000. Disputes arose with their own insurer, Allstate Insurance Company of Canada ("Allstate"), regarding each Applicant's entitlement to specific statutory accident benefits potentially payable under the Schedule.1
The Applicants applied for mediation. Mediation failed to resolve the issues in dispute. Separate Reports of Mediator for each Applicant, each bearing a different Commission file number, were issued on September 21, 2001.
Mr. and Mrs. Larizza each then applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, by separate Applications for Arbitration (the "Applications"). Each Application was separately stamped received by the Commission on October 11, 2001. Correspondence dated October 12, 2001 from the Applicants' representative indicates that the case administrator handling this file verbally requested that these two Applications be combined. Nothing in the file contradicts this assertion. Rather, a single cheque of $100 made payable to the Minister of Finance from the Applicants was accepted by the Commission. The case administrator then wrote Allstate referring to a single Application on behalf of the Applicants and indicated that a single insurer assessment of $3,000 would be levied against the Insurer at a later date. Allstate subsequently filed two separate Responses by Insurer to an Application for Arbitration (the "Response").
In processing these Applications, the Commission did not follow its own rules as set out in the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) (the "Code").
As noted in Balausiak and Allstate Insurance Company of Canada (FSCO A01-001374, March 18, 2002) (which involved a similar issue but a different case administrator and which is being issued at the same time as this decision), Rule 25.6 of the Code requires the Registrar to deliver a copy of the completed Applications to the other parties. An insurer, pursuant to Rule 26 of the Code, has within 20 days of receipt of the Applications to respond, including serving and filing a Response by Insurer to an 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 available procedural options are:
– combining the proceedings;
– scheduling the proceedings to be heard at the same time or one immediately after the other; or,
– suspending the scheduling of a proceeding or proceedings until the determination of any one of them.
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.
In this case, the case administrator evidently simply advised one party, as a fait accompli, that the two Applications had been combined. As in Balausiak, this was a decision made by someone without authority under the Code, who failed to give the parties 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 also apparently made without 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
Nonetheless, these two matters jointly proceeded under one Commission arbitration file number to a pre-hearing discussion held on February 27, 2002 before myself.
I proceeded in the discussion 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 how these matters should proceed.
The parties both submitted that these matters should be combined and heard at the same time. Based on the submissions of the parties, I am persuaded that these two proceedings should be scheduled to be heard at the same time, for the following reasons:
There is significant overlap of issues in these cases (for both Applicants, section 33, 42 and 43 issues under the Schedule are raised by the Insurer as well as payment of its assessment and its legal expenses; both Applicants claim payment of their separate accounts of Medic Health Care and Sunrise Health Management as well as interest, a special award and legal expenses);
The proposed witnesses to be called in each of these cases are identical (Drs. Counti, DiPaolo, and Pontarini, Ms. T. Veluz, a kinesiologist, Mr. J. Bertuzzi, an adjuster, and possibly further representatives of Medic Health Care and the medical/rehabiltation Designated Assessment Centre) other than the Applicants themselves. It would be more efficient and cost effective to have the witnesses, specifically the expert witnesses, attend only once at the Commission to give evidence for both claimants, rather than attend separately for each Applicant; and,
The parties consent to having the hearings held at the same time.
I am uncertain, at this juncture, that the presently expressed concerns of the parties require that these matters be combined, in addition to being heard at the same time. However, given that the parties were under the justifiable impression that these Applications had been combined, I think that it is appropriate to allow the parties thirty days from the date of this decision to file written submissions as why these matters should be combined.
In the interim, I find that the Code presumes that Applications made by separate individuals will be processed separately and proceed as distinct files until such time as they are combined in accordance with the Code. As these two matters have not been so combined, the Applications of Mr. Larizza and Mrs. Larizza shall, pending any further or other order of an arbitrator, be registered separately, each with the appropriate fees and assessments.
March 18, 2002
Lawrence Blackman
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 49
FSCO A01-001305
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BRUNO LARIZZA
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
AND BETWEEN
GIUSEPPINA LARIZZA
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:
The Applications of Mr. Larizza and Mrs. Larizza shall, subject to any further or other order of an arbitrator, be registered as two separate proceedings each with the appropriate fees and assessments, but shall be heard at the same time.
The parties shall, within thirty days from the date of this decision, file written submissions, if any, as to why these Applications should be combined.
March 18, 2002
Lawrence Blackman
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 177, 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).