Fariborz Jalili Babakandi v. Royal & SunAlliance Insurance Company of Canada, 2003 ONFSCDRS 58

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2003 ONFSCDRS 58 FSCO A01-001033

BETWEEN:

FARIBORZ JALILI BABAKANDI Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A MOTION

Before: Janice Sandomirsky

Heard: By telephone conference call on March 27, 2003.

Appearances: Lisa Holland for Mr. Jalili Babakandi Tamara Tomomitsu for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Fariborz Jalili Babakandi, was injured in a motor vehicle accident on February 3, 2000. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹

The issues in the motion are:

1. Is Royal entitled to an order for production of medical and financial documents from Mr. Jalili Babakandi?
2. Is Royal entitled to an order to add Mr. Jalili Babakandi's entitlement to ongoing income replacement benefit payments as an issue in this arbitration?
3. Is Royal entitled to an order for expenses incurred in the motion?

Result:

This order confirms the oral decision on these issues given to the parties at the motion hearing.

1. Mr. Jalili Babakandi has agreed to provide consents for the release of all requested medical documentation.
2. The question of ongoing entitlement to income replacement benefit payments will not be added as an issue in this arbitration at this time.
3. The issue of expenses is left to the discretion of the hearing arbitrator.

EVIDENCE:

There is an issue between the parties about the payment of income replacement ("IRB") benefits. At the time of the pre-hearing on December 5, 2001, Royal had reduced Mr. Jalili Babakandi's IRBs to 50% effective April 6, 2001. The pre-hearing letter noted that the IRB issue was not added to this application for arbitration because it was not mediated and could not be added unless Royal consented.

The arbitration hearing was scheduled to begin on June 24, 2002. On May 9, 2002, Ms. Takahashi advised that Royal was paying IRBs at that time, so that issue was settled. For other reasons, the June hearing dates were adjourned and the case rescheduled for January 6, 2003.

Mr. Jalili Babakandi asked for an adjournment of the January 2003 hearing dates because Royal decided to terminate the IRB payments after an insurer's examination on November 26, 2002. Mr. Jalili Babakandi requested an assessment at a Designated Assessment Centre (DAC). According to the letter from Ms. Holland to the FSCO, dated December 16, 2002, "both parties are amendable to an adjournment until all issues are ripe for determination."

The adjournment was granted to allow the parties time to add and prepare for the additional issue of the applicant's entitlement to IRBs. The hearing was rescheduled to begin on May 5, 2003.

In a letter dated March 3, 2003, Ms. Holland advised Ms. Takahashi that she planned to take the IRB issue to mediation if the disability DAC assessment was not in Mr. Jalili Babakandi's favour. Ms. Holland also advised that she had instructions to withdraw the IRB issue from arbitration and add it to the tort action.

Royal filed a Notice of Motion, dated March 5, 2003, for an order compelling the Applicant to produce previously requested medical and financial documentation. A further Notice of Motion, dated March 21, 2003, requested an order to add the IRB claim as an issue in the arbitration.

Ms. Takahashi's list of requested documents were sent to Ms. Holland in letters dated February 25 and March 5, 2003.

In a letter dated March 21, 2003, Ms. Holland confirmed that the Applicant agreed to sign authorizations to obtain the requested medical documents.

The parties have not received the report from the DAC assessment.

FINDINGS:

After reviewing the case history and hearing the parties submissions, I concluded that it was premature to consider whether the IRB issue ought to included in this arbitration because it was not clear yet whether there continues to be a dispute over payment of IRB benefits without first reviewing the DAC report.

Although I make no finding on the question of whether the IRB issue ought to be included in this application for arbitration, I refer the parties to the case of Mangat and Non-Marine Underwriters, Mbrs. Of Lloyd's (FSCO P00-00020, August 1, 2000), which held that an insured person does not have an unfettered discretion to make a separate choice of forum for each issue. The decision notes the need for a pragmatic balancing to determine whether the issues are sufficiently related that they should proceed together and, if so, in what forum.

Regarding the issue of production of documents, Mr. Jalili Babakandi had provided consents for Royal to obtain the requested medical documents. The requests for documents related to the IRB claim were premature because that issue had not been included in this proceeding.

EXPENSES:

Royal requested an order for the cost of obtaining the documents it requested and an order for the expenses it incurred in this motion hearing.

Given that Royal was the party that requested the documents, I declined to order that Mr. Jalili Babakandi pay the costs of obtaining them. I also declined to make an order for expenses and leave that issue to the discretion of the hearing arbitrator.

April 11, 2003

Janice Sandomirsky Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 58 FSCO A01-001033

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FARIBORZ JALILI BABAKANDI 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:

1. Mr. Jalili Babakandi has agreed to provide consents for the release of all requested medical documentation.
2. The question of ongoing entitlement to IRB payments will not be added as an issue in this arbitration at this time.
3. The issue of expenses is left to the discretion of the hearing arbitrator.

April 11, 2003

Janice Sandomirsky Arbitrator

Date

Footnotes

1. 1The 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.