FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 176 FSCO A02-000954
BETWEEN:
JOSEFINA VIEIRA Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Judith Killoran
Heard: October 20 and 21, 2003, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on October 28, 2003.
Appearances: Mary Meropoulos for Mrs. Vieira Joan Takahashi for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Josefina Vieira, was injured in a motor vehicle accident on July 31, 2001. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mrs. Vieira applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. A pre-hearing discussion in this case was held on May 13, 2003. The arbitrator identified the preliminary issues for hearing, as the following:
The Applicant claims that she was injured while a pedestrian while attempting to avoid a collision between three insured vehicles. She did not come into contact with a vehicle. She claims that her son, Tony, was a named insured under a policy issued by Royal and that she is also insured under that policy and that she has recourse against Royal. The issue is whether Royal is obliged to respond to her claim as the first insurer to which she submitted an application for accident benefits? Among other things, the Applicant relies on section 268 of the Insurance Act.
Is the Applicant an "insured person" under the Royal policy as a "dependant" of her son, Tony, within the meaning of subsection 2(6) of the Schedule?
Did the Applicant suffer an impairment as a result of an "accident" within the meaning of subsection 2(1) of the Schedule?
RESULT:
- I reserve my decision on the first preliminary issue until the hearing has concluded with respect to all three preliminary issues.
I conducted a hearing on October 20 and 21, 2003, where I heard evidence with respect to the first preliminary issue, which is: "Is Royal obliged to respond to Ms. Vieira's claim as the first insurer to which she submitted an application for accident benefits?" The remaining two preliminary issues are to be heard on January 6, 7 and 8, 2004.
In my view, in the interests of fairness and efficiency, it is necessary to issue my decision with respect to all three issues at the same time. I will issue a decision with respect to all of the preliminary issues when the hearing has concluded.
BACKGROUND:
At the pre-hearing discussion on May 13, 2003, dates were set for a preliminary issue hearing to hear the three preliminary issues outlined above. A resumption of pre-hearing discussion was held by teleconference on October 1, 2003. The arbitrator made orders relating to the production of documents by the Applicant. Royal requested an adjournment of the preliminary issue hearing because it required further documents before proceeding.
In a letter dated October 1, 2003, the arbitrator stated the following:
...I ruled that the first preliminary issue will proceed as scheduled because it is primarily a legal issue not dependent on the production of a great deal of evidence. If Royal is not prepared to deal with the second and third preliminary issues on October 20 and 21, 2003, those issues may be dealt with separately on another date as determined by the arbitrator hearing the first preliminary issue. For greater certainty, the hearing dates of January 6, 7 and 8, 2004 are not cancelled.
Royal asked for expenses of this application. As Mrs. Vieira was not directly responsible for the need for this application, I defer the issue of expenses of this application to the hearing arbitrator.
An adjournment hearing occurred on October 15, 2003 by teleconference. Royal requested an adjournment of the preliminary issue hearing on the grounds that it would be more efficient to deal with all preliminary issues together. By letter dated October 15, 2003, the arbitrator declined the request for an adjournment stating:
In my view, the determination of the first preliminary issue is mainly a legal issue based on facts which do not appear to me to be seriously in dispute. A resolution of the first preliminary issue may lead to a resolution of the other issues in dispute.
The first preliminary issue is identified in my letter to the representatives dated May 13, 2003.
Ms. Meropoulos advised me that preliminary issue 2. is no longer an issue as phrased. I set out the second preliminary issue as follows.
- Royal claims that Ms. Vieira is not an "insured person" within the meaning of section 2 of the Schedule. Mrs. Vieira will not identify how she satisfies the definition of "insured person" but claims that even if she is not an "insured person", Royal is obliged to respond to the claim under the circumstances of this case which include her belief that she was insured under the Royal policy.
The second issue, as rephrased above, will be heard together with the third issue when the hearing resumes in January 2004.
CONCLUSION
The parties disagreed about whether a decision should be rendered with respect to the first issue prior to hearing the evidence with respect to the remaining two issues. Originally, as set out in the pre-hearing letter dated May 13, 2003, the three preliminary issues were to be heard and decided together.
I have had the advantage of full submissions from both parties. As stated earlier, in the interests of fairness and efficiency, I find that it is necessary to issue my decision with respect to all three issues at the same time. The hearing is scheduled to resume on the hearing dates of January 6, 7 and 8, 2004. I will issue a decision with respect to all of the preliminary issues after the hearing has concluded.
December 5, 2003
Judith Killoran Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 176 FSCO A02-000954
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOSEFINA VIEIRA Applicant
and
ROYAL & SUNALLIANCE 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:
- I reserve my decision on the first preliminary issue until the hearing has concluded with respect to all three preliminary issues.
December 5, 2003
Judith Killoran 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, 114/00 and 482/01.