Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2003 ONFSCDRS 11
Appeal P02-00032
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JOSEPH BENN
Appellant
and
CERTAS DIRECT INSURANCE COMPANY
Respondent
Before:
Stewart McMahon
Representatives:
Jerry F. O'Brien for Mr. Benn
Boyd Critoph for Certas
Hearing Date:
The appeal proceeded on the basis of written submissions received on January 13 and 20, 2003.
APPEAL ORDER*
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed, and the arbitration order dated October 25, 2002, is confirmed.
Mr. Benn shall pay the appeal expenses of Certas Direct Insurance Company, fixed at $500. These expenses are not payable until the arbitration proceeding and any further appeal have been decided.
February 5, 2003
Stewart McMahon
Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE ISSUE
Joseph Benn appeals from a preliminary order dated October 25, 2002, which stayed his arbitration hearing until he makes himself available for two Insurer Examinations ("IEs"). At the heart of Mr. Benn's appeal is a submission that it was clear on the evidence before the Arbitrator that Certas Direct Insurance Company ("Certas") had defaulted on its statutory obligation to pay for certain rehabilitation benefits, pending the hearing, and that the Arbitrator erred when she stayed the arbitration hearing in the face this default. For the reasons that follow, I am not convinced by this argument. The appeal is dismissed.
II. PROCEDURAL MATTERS
This is an appeal from a preliminary order. Rule 50.2 of the Dispute Resolution Practice Code stipulates that "a party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided, unless the Director orders otherwise." Mr. Benn asked for leave to proceed with the appeal before any further steps were taken in the arbitration proceeding. Certas opposed this request. The parties made brief oral submissions by way of a telephone conference call on December 5, 2002. Certas argued that the Arbitrator was not obliged to discuss every argument in her decision and, at best, the "pay pending" argument was an afterthought that had not been pursued vigorously at arbitration. In any event, Certas submitted there was no merit to the appeal.
On the materials before me I was satisfied that the "pay pending" argument was pursued at arbitration. The pay pending rules are an important procedural safeguard and any breach of these rules should be carefully considered. I was satisfied there was sufficient merit to Mr. Benn's complaint that he should be allowed to challenge the Arbitrator's decision before he was obliged to submit to the examinations.
III. BACKGROUND
Mr. Benn was injured in a motor vehicle accident on April 18, 1999. He argues that he suffered a traumatic brain injury and claims expenses related to the services of a support-worker from Bartimaeus Inc.
Certas's response to the claims for payment of Bartimaeus's services is difficult to sort out on the basis of the record. However, the history of these responses is important to the disposition of this appeal and, therefore, I have outlined it below, as best I can.
The support-worker began to assist Mr. Benn in early 2000, approximately a year after the accident. Certas accepted this claim and paid for the services for a couple of months, notwithstanding the absence of a formal treatment plan. Certas did not pay for the services rendered after April 2000, but the support-worker continued to provide services until February 2001. The evidence concerning Certas's position during the ten months between April 2000 and February 2001 is confusing. Mr. Benn relies on reports from an outside adjusting firm which suggest that Certas's agent was directing the services, and on one occasion instructed the support-worker to increase the time she was spending with him. There is also evidence to suggest the adjuster asked Certas to forward payment of Bartimaeus's account. However, Certas relies on other reports that support its assertion that it had been complaining that Bartimaeus had not yet filed a treatment plan and that it was prejudiced by this fact.
As noted above, Bartimaeus withdrew services in February 2001. However, in May 2001, Bartimaeus prepared a treatment plan that called for additional sessions with the support-worker. Certas rejected the plan and arranged for an assessment at a Designated Assessment Centre ("DAC").
In October 2001, Mr. Benn's counsel filed an Application for Arbitration seeking an order requiring Certas to pay various benefits, including a rehabilitation benefit relating to Bartimaeus's services.
Shortly thereafter, in November 2001, the DAC released its report, which approved the additional sessions with the suppor-worker, proposed in the May 2001 treatment plan. Following the release of the report, the support-worker re-established contact with Mr. Benn in February 2002.
While these further services were being delivered, the arbitration proceeding moved forward. In late February 2002, the pre-hearing was conducted. The pre-hearing letter issued by the Arbitrator includes a statement of the following issue: "Is Mr. Benn entitled to receive a rehabilitation benefit for treatment supplied by Bartimaeus Inc. ($20,880.24) claimed pursuant to section 15 of the Schedule." The monetary figure corresponds to the services rendered between April 2000 and February 2001.
In mid-March 2002, Certas sent its first notice requiring Mr. Benn to attend for the IEs which are the backdrop to this appeal. Mr. Benn's counsel responded, in part, by stating that in light of the DAC report, Certas was obliged to pay Bartimaeus's account pending the arbitration decision and, in the face of this default, his client would not attend the IEs. For reasons that are not clear, Certas had not yet begun to pay for the additional services that followed the DAC report, but it would appear that Mr. Benn's counsel was taking the matter further, by arguing that the release of the DAC report obliged Certas to pay for all of the outstanding services, including the services provided between April 2000 and February 2001.
The parties were unable to resolve the IE issue, and ultimately Certas brought a motion seeking a stay of the arbitration hearing. In early June, before the motion was completed, Certas's adjuster met with a representative from Bartimaeus. The confirming letter by the adjuster indicates that Certas agreed to pay for the sessions that followed the DAC report. I was not pointed to any evidence suggesting that Certas failed to honour this agreement. In addition, there is no indication that Certas has paid these expenses pending a ruling by an Arbitrator. In fact, Certas's counsel made it clear during the submissions before me, that as far as he is concerned, the only issue to be arbitrated is entitlement to the services between April 2000 and February 2001.
IV. ARGUMENT AND ANALYSIS
At the arbitration level, Mr. Benn resisted the IEs on the grounds they were an unreasonable intrusion on his privacy and prejudicial. The Arbitrator rejected these arguments. She found that the examinations were reasonably necessary to allow Certas to assess the cause of Mr. Benn's ongoing difficulties, and its exposure for the benefits in issue. Mr. Benn also argued that the IEs were a last minute attempt by the Insurer to shore up its defence. The Arbitrator dismissed this argument. She found that the lateness of the request for the examinations was due to the fact that Mr. Benn had not delivered the required pre-accident records in a timely fashion. There was evidence to support these findings and, consequently, there is no basis for interfering with them on appeal.
In the alternative, Mr. Benn submits that notwithstanding these findings, Certas should not have been entitled to a stay of the arbitration proceedings in the face of its non-compliance with the " pay pending" rules. He pursued the appeal as though it was patently clear, on the evidence before the Arbitrator, that the expenses in issue are subject to the " pay pending" rules, and that Certas had breached those rules. I do not share Mr. Benn's view. To my mind, it is far from a foregone conclusion that the delivery of the DAC report in November 2001, triggered a "pay pending" obligation with respect to the services rendered between April 2000 and February 2001. It is true that the DAC report comments positively on the support-worker's past services, but the treatment plan it had been asked to review referred only to the additional services Bartimaeus was proposing to deliver. Absent a basis for saying that it is evident that Certas has ignored the " pay pending" rules, I do not think Mr. Benn has laid the foundation for arguing that the Arbitrator erred in staying the arbitration hearing.
Ultimately, the question of whether Mr. Benn is entitled to payment for the services rendered between April 2000 and February 2001 will have to await a full arbitration hearing on the merits.
The question of whether Certas was obliged to pay for those services pending the hearing, and the consequences that should attach to any default, also remain live issues to be addressed at the hearing. The Arbitrator determined that Certas reasonably required the IEs to allow it to prepare for that hearing. I have not been persuaded that there is any basis for interfering with that conclusion.
V. EXPENSES
This appeal was based on the proposition that key facts were not in dispute, when it should have been clear that they had yet to be determined. In the circumstances, I conclude that Mr. Benn should pay a significant portion of Certas's expenses. To both counsels' credit, this appeal from a preliminary order was dealt with in a summary fashion which helped to keep the expenses in check. I fixed the expenses payable at $500. Given that the merits of the claim remain to be dealt with, the payment of these expenses is deferred until after the arbitration and any further appeals are decided.
February 7, 2003
Stewart McMahon
Director’s Delegate
Date
- This order was signed and issued on February 5, 2003. The accompanying reasons were signed and issued on February 7, 2003.