Neutral Citation: 2004 ONFSCDRS 130

FSCO A03-001344

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JERRY CHAMPAIGNE

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

Lawrence Blackman

Heard:

July 19 and 20, 2004, in Sudbury, Ontario

Written submissions received by August 17, 2004

Appearances:

Carolyne Champaigne for Mr. Champaigne

Bruce A. Keay for Co-operators General Insurance Company

Issues:

The Applicant, Mr. Jerry Champaigne, submits that he was injured in accidents on August 22, 2002 and October 31, 2003. He applied for statutory accident benefits from Co-operators General Insurance Company ("Co-operators") payable under the Schedules,¹ at least in respect of the first incident. Co-operators rejected certain of these claims. The parties were unable to resolve their disputes through mediation. Mr. Champaigne thus applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act"). The arbitration hearing was scheduled for July 19, 20, 21 and 22, 2004, in Sudbury, Ontario.

PROCEDURAL ISSUES

Much of the first day of the hearing was spent endeavouring to clarify the issues in dispute. Most of the procedural matters which follow were addressed in my letter to the parties dated July 29, 2004.

The February 12, 2004 pre-hearing letter herein had addressed only the August 22, 2002 accident. No letter of correction or clarification was sent to the Commission seeking to amend that correspondence to include the second incident. At the arbitration hearing, however, Mr. Champaigne indicated his wish to include the October 31, 2003 incident in this proceeding. During the two hearing days, however, the Applicant's view varied as to the extent to which the previously identified entitlement issues pertained to the October 31, 2003 incident.

The Co-operators was prepared to add the October 31, 2003 incident in this arbitration, but with specific defences in this regard, including whether the Applicant was an insured person, and if so, whether there indeed was an accident, as defined in section 2 of the 2003 Schedule. The Insurer queried, however, its ability to marshal its defence to this incident on such short notice.

However, even regarding entitlement issues which flowed solely from the August 22, 2002 accident, necessary particulars of the Applicant's claims remained outstanding until after the hearing began and, indeed, changed as the hearing progressed.

It is my understanding that Mr. Champaigne was self-employed at the time of the August 22, 2002 accident, and that he continued to work for some time thereafter, earning some measure of post-accident income. The Applicant had, I am advised, submitted to the Insurer on or about March 31, 2004 a schedule indicating approximately $1,500 in claimed income replacement benefits ("IRBs") which Co-operators paid in or about May 2004. Approximately two hours into the arbitration hearing, Mr. Champaigne presented Co-operators with an amended schedule which indicated, I am advised, about $14,000 in claimed IRBs. A further amended schedule of claimed IRBs was provided by the Applicant on the second day of the arbitration hearing.

I was further advised that a significant amount of supporting IRB documentation had been provided to the Insurer only a few days before the start of the hearing, and that there perhaps still remained some measure of outstanding production regarding the IRB quantum issue. Counsel for the Insurer indicated that he had only received this material the Friday before the hearing and had had insufficient time to review same with the Insurer's proposed accounting expert. This late production was in contravention of the Dispute Resolution Practice Code (Fourth Edition – Updated October 2003) ("DRPC"), specifically the thirty-day notice rule, details of which were set out in the February 12, 2004 pre-hearing letter which was sent to both parties.

The Applicant submitted that the reason for the delay in production was that he lacked the financial resources to photocopy his supporting documentation. I was advised that this dilemma had been sorted out only the prior week by the documents being photocopied at the Insurer's offices. The Applicant also submitted that he had not received full production disclosure from the Insurer.

Regarding the Applicant's claim for housekeeping expenses, very few particulars appeared to be available. The Applicant submitted that documents supporting this claim had been given early on to the Insurer, which it had lost, but that copies had not been retained by the Applicant. During the course of the two-day hearing, the Applicant was only able to guess as to the amount in issue and the period covered.

The Applicant was assisted at the hearing by his sister, Ms. Carolyne Champaigne, and two other individuals, Ms. Jill Stevens and Ms. Julie Wilson. They are not legally trained. Each confirmed that they were not receiving any compensation in this case, in accordance with section 19 of Ontario Regulation 664, R.R.O. 1990, amended to O. Reg. 210/94. They did not intend to give oral evidence. They were struggling, apparently as best they could, to assist the Applicant. However, they appeared to have difficulty grasping certain fundamental concepts, including onus of proof.

I indicated to the parties that although some accommodation might be made for essentially unrepresented applicants in presenting their case, fundamental precepts still apply. These include providing reasonable notice to the other side of the particulars of one's claim, including timely production. Fairness must mean fairness to both sides. A claim cannot be a moving target, with the issues, and the particulars thereof, in a continuing state of flux.

i. Adjournment Ruling

Accordingly, given:

– the additional accident and issues now raised;

– the benefit in having one hearing (as opposed to multiple hearings) to avoid unnecessary expense, delay and the possibility of inconsistent results;

– the fluctuating particulars of certain claims; and,

– late, or non production of, specifically, source documentation pertaining to the IRB claim,

I ultimately ruled that the hearing should be adjourned, notwithstanding the Applicant's submission of financial urgency and the Commission's refusal of the Insurer's request on July 9, 2004 for an adjournment. I allowed, however, the Applicant to bring a motion for interim benefits, which occupied most of the second day of the hearing.

The balance of the hearing consisted of finalizing the issues in dispute and dealing with a variety of procedural matters.

ii. Confirmation of the Issues in Dispute

By the end of the second day of the hearing, the parties agreed that the issues to be heard at the main hearing were as follows:

5. Regarding the October 31, 2003 incident:

(a) is Mr. Champaigne an insured person for the purposes of the 2003 Schedule;

(b) if so, is Co-operators not required to pay benefits to Mr. Champaigne, pursuant to section 59 of the 2003 Schedule;

(c) if not, did Mr. Champaigne suffer an impairment in an accident on October 31, 2003, as the term "accident" is defined in section 2 of the 2003 Schedule?

The Insurer undertook to provide the Applicant with copies of the pertinent legislation pertaining to the 2003 incident.

2. Is Mr. Champaigne entitled to receive a weekly income replacement benefit, ongoing from June 17, 2003, claimed pursuant to section 4 of the 1996 and/or 2003 Schedules?

The Insurer conceded the Applicant's entitlement to IRBs from August 29, 2002 until June 16, 2003. The IRB claim from October 31, 2003 to January 4, 2004 is based on injuries sustained on both August 22, 2002 and October 31, 2003. Otherwise, the Applicant's IRB entitlement is based solely on the August 22, 2002 accident.

3. What is the amount of the weekly income replacement benefit that Mr. Champaigne is entitled to receive pursuant to section 6 of the 1996 Schedule?

The Applicant's claim includes 80% of losses from self-employment, in accordance with subsection 6(5) of the Schedules.

On the second day of the hearing, the Applicant confirmed that he is not seeking an IRB quantum based on the October 31, 2003 incident, and that IRB quantum is based solely on the August 22, 2002 accident less income received after the August 22, 2002 accident.

It is my understanding, however, that the Applicant's claim pursuant to subsection 6(5) of the Schedules for the limited period October 31, 2003 to January 4, 2004 is based on injuries sustained both on August 22, 2002 and October 31, 2003.

4. Is Mr. Champaigne entitled to payment of the following treatment plans, claimed pursuant to section 14 of the 1996 and/or 2003 Schedules:

(a) a treatment plan dated May 9, 2003, from Mr. Michael De Angelis, physiotherapist, for an enhanced one year membership at the YMCA as a result of the August, 22, 2002 accident, the claim being the sum of $738.56 less such monies Co-operators has paid in this regard;

(b) a treatment plan for massage therapy dated March 26, 2003, from Ms. Debra Kawa, massage therapist, in the amount of $663, claimed as a result of the August 22, 2002 accident;

(c) a treatment plan for physiotherapy dated November 10, 2003, from Mr. Michael De Angelis, physiotherapist, in the amount of $3,750, claimed as a result of injuries sustained on both August 22, 2002 and October 31, 2003;

As indicated below, it is to be clarified whether this account is indeed still in dispute, as it may have been paid by the Workplace Safety and Insurance Board ("WSIB").

(d) treatment plans for chiropractic treatment dated November 21, 2003 and January 26, 2004 from Dr. Clark Michlowski, D.C., in the amounts of $865.05 for November 21, 2003 and $443 for January 26, 2004, both claimed only as a result of injuries sustained on August 22, 2002?

5. Is Mr. Champaigne entitled to payment of a rehabilitation benefit, claimed pursuant to section 15 of the 1996 Schedule, for the following:

a. for a rehabilitation worker/assistant to help locate and co-ordinate treatment for Mr. Champaigne as a result of injuries sustained on August 22, 2002;

Co-operators raises a specific defence regarding this issue, pursuant to subsection 50(a) of the 1996 Schedule.

b. for a driver's helper, Mr. Tyler Vincent, from August 30 to September 27, 2002, in the amount of $1,000, claimed in the alternative as a loss from self-employment pursuant to subsection 6(5) of the 1996 Schedule;

c. for truck rentals from Budget on August 23, 2002 and on September 12, 2002, in the amount of $227.61, claimed in the alternative as a loss from self-employment pursuant to subsection 6(5) of the 1996 Schedule; and,

d. for replacement drivers Mr. Dan Paquin, Mr. Ron Sarazin and those provided by Transport Placement Services from August 23 to September 13, 2002, in the amount of $1,382.55, claimed in the alternative as a loss from self-employment pursuant to subsection 6(5) of the 1996 Schedule?

6. Is Mr. Champaigne entitled, as a result of the August 22, 2002 accident, to payment of $800 for housekeeping and/or home maintenance services provided between August 22 and December 31, 2002 by Josh Boric, Shawnda Loney, Paulette Michel and Lucy Harnett, claimed pursuant to section 22 of the 1996 Schedule?

Co-operators raises a specific defence regarding this issue pursuant to subsection 50(a) of the 1996 Schedule.

7. Is Co-operators liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Champaigne?

8. Is Co-operators liable to pay Mr. Champaigne's out-of-pocket disbursement expenses in respect of the arbitration proceeding under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

The Applicant confirmed that he is not seeking payment of any legal expenses regarding the time provided by his assistants in this proceeding. The claim is solely for out-of-pocket legal disbursements.

9. Is Mr. Champaigne liable to pay Co-operators' legal expenses in respect of the arbitration proceeding under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

10. Is Mr. Champaigne entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedules?

iii. Further Production Exchange

The following production matters were also addressed at the hearing:

Production requests by the Applicant:

1. the Insurer undertook to produce to the Applicant:

(a) the contents of any conversations that have been reduced to writing between, on the one hand, the Insurer and, on the other hand, treating medical practitioners, Designated Assessment Centres ("DACs") and/or insurer medical examiners; and,

(b) a copy of its complete accident benefits file (other than reserve information) up to the date mediation was first sought by the Applicant, being June 20, 2003.

The Applicant disputed only the Insurer's refusal to produce reserve information up to June 20, 2003. The Insurer submitted that such information was not relevant to the issues at hand. The Applicant argued that such information was relevant to the issue of a special award.

Order:

Arbitral decisions have been divided as to whether information regarding reserves is producible.

The decision of Nigro and State Farm Mutual Automobile Insurance Company (FSCO A99-000656, April 28, 2000) ordered production, for the purposes of pre-hearing production only, of the adjuster’s notes pertaining to reserves to the date of the application for mediation. The decision as to admissibility at the hearing was left to the hearing arbitrator. Arbitrator Wilson was concerned with the unfairness of requiring an applicant to argue the relevance of such documents in a vacuum, without access to the entire Insurer’s file. He held that it was sufficient for the applicant to demonstrate a reasonable possibility that a document in the insurer’s possession was relevant to issues in arbitration.

The decision in Griscti and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A01-000471, October 5, 2001), however, held that "reserve information is confidential and should generally be protected from disclosure to promote settlement and business efficiency." Arbitrator Renahan referred to the decision of Contos v. Kingsway General Insurance Co. 2001 CanLII 62787 (ON SC), [2001] O.J. No. 1327 wherein Master Dash, after noting the specific lack of reference to reserves in the pleadings, that "I would grant such [a production] order in only the clearest of cases, as it is equivalent to asking a party or its representative what it believes its case is worth." In Griscti, it was held that the insurer "need not produce reserve information at this time" [emphasis added].

Master MacLeod, in Rex v. General Accident Assurance Co. of Canada, 2001 CanLII 62792 (ON SC), [2001] O.J. No. 348, stated that:

The setting of reserves per se does not have a semblance of relevance. This is not to say that the level of reserves may not become relevant in response to proper questions put on discovery not that the reserve information is entitled to any particular special treatment. I am simply not persuaded on the evidence before me that there is a semblance of relevance to 'all documentation relating to reserves as requested in the notice of motion.

The Commission does not provide for pleadings equivalent to that in the Courts. As stated in Campeau and Liberty Mutual Insurance Company (FSCO A00-000522, March 12, 2001), "[t]he Commission's process does not allow for examinations for discovery or affidavits of documents as part of our pre-hearing procedure." Hence, the basis for establishing relevance required by Master MacCleod is not present in this system.

I adhere to what was said in Campeau, that arbitration, which is intended to be cheaper and faster than the court process, calls for a more streamlined broad stroke approach regarding production exchange. In determining production of clinical notes and records, a certain period of production (from one year pre-accident) is considered, at first glance, relevant and producible notwithstanding that such records may contain entries that may ultimately be entirely irrelevant, extremely confidential and highly prejudicial to the applicant. It is for the party resisting production of documents falling within the broad category during the generally applicable time frame to persuade the adjudicator why such documents should not be produced.

The generally accepted practice at the Commission is to allow production of the Insurer's file up to the date mediation was sought. This was generally accepted by the parties herein. Information regarding reserves may be intertwined with other comments such as to foreclose a neat, simple division between reserve and non-reserve information. I take the same approach as previously taken in Campeau, that:

Up to the date of mediation, it is for the insurer to establish privilege, sensitivity particular to the claim, or some other reason to exclude production of the reserve information.

In this case, no argument particular to the facts of this case were argued. The Insurer simply argued that it was clear from the case law that information on reserves is irrelevant. Having not received any evidence as to the Insurer's actual notes and records in this file, I am not prepared to assume that any and all reserve information that may be contained in those notes and records is irrelevant and should be excised from the generally accepted relevance of the adjusting file. Accordingly, for the purposes of pre-hearing production I am allowing production of a copy of the Insurer's complete accident benefits file (without restriction) up to the date mediation was first sought by the Applicant, being June 20, 2003, without prejudice to the submissions of the parties as to whether or not such information may be entered as evidence at the main arbitration hearing.

2. the Insurer undertook to use its best efforts to obtain copies of the notes and records of Mr. Jacques Bonin, kinesiologist, including copies of any correspondence between Mr. Bonin and the Insurer, and to produce copies of same to the Applicant upon receipt.

3. the Insurer undertook to provide the Applicant with a copy of its medical index and, further, to provide to the Applicant a copy of whatever documentation is listed therein that he is currently missing.

4. the Applicant sought production of the complete file of SCS Insurance Adjusters Ltd./McLarens Toplis Canada ("SCS"). The Insurer stated that it had requested SCS's complete file and that it had forwarded to the Applicant what the Insurer had been advised by SCS was their complete file. The Applicant submitted that there were documents missing in what SCS is purported to have forwarded to the Insurer.

Order:

the Applicant shall write to the Insurer’s counsel advising what documents were missing in the SCS package of documents. The Insurer shall pass that information on to SCS, and again request a copy of SCS's entire file.

Production requests by the Insurer:

5. the Applicant undertook to provide to the Insurer, for the latter to photocopy at their expense, the source documentation which the Insurer does not have for the year 2002 regarding the issue of IRB quantum.

Following a discussion between the parties as to how best to determine whether other documentation pertaining to the IRB quantum issue exists, I held as follows:

Order:

the Insurer will write to the Applicant indicating what source documentation it is missing. The Applicant will forthwith respond indicating what documentation exists, and whether it will be produced, or will confirm in writing that the documentation does not exist.

6. the Applicant undertook to provide the Insurer with the insurance particulars of the October 31, 2003 incident, and specifically the identity of the insurer of the involved vehicle.

7. the Insurer sought production from January 1, 2001 of copies of the Applicant’s complete WSIB files, submitting that the Applicant had injured himself in several accidents. The Applicant objected to this production request, arguing that there was a WSIB file regarding a hernia problem, a condition which was unrelated to the injuries sustained in this accident.

Order:

the Applicant shall request from the WSIB, and produce to the Insurer upon receipt, a copy of the complete WSIB medical records from January 1, 2001 pertaining to any accidents and/or incidents involving himself, and shall further request, and produce to the Insurer upon receipt, and a copy of anything reduced to writing by the WSIB pertaining to the Applicant subsequent to August 22, 2002. I was persuaded as to the prima facie relevance of the medical records pertaining to the Applicant's general state of health prior to this accident, Mr. Champaigne's admission of some pre-accident WSIB problems warranting, in this case, the requested production from a date slightly further back than the normal one-year pre-accident rule.

Given the issues of post-accident income, causation and disability, I was persuaded that broader disclosure was warranted for the period after August 22, 2002.

The Applicant thereupon gave an undertaking to sign a release allowing these records to be produced. This was agreeable to the Insurer.

8. the Applicant undertook to obtain confirmation from Mr. De Angelis as to whether he was in fact paid for his November 10, 2003 treatment plan by the WSIB; and,

9. the Applicant undertook to provide the Insurer with copies of receipts in support of his claim for housekeeping expenses.

iv. Time Lines

In order to facilitate this proceeding, I set the following specific time lines:

– by Friday, September 3, 2004,

1. the Applicant shall confirm in writing to the Insurer whether he is continuing to claim IRBs after August 22, 2004, being approximately104 weeks after the August 22, 2002 accident;

– by Monday, September 20, 2004,

2. the parties shall have complied with the production orders herein and with their respective production undertakings confirmed above, or shall provide proof of best efforts to the other party of their attempts to comply with the orders and undertakings;

3. the Insurer shall confirm in writing to the Applicant what it has paid regarding Mr. De Angelis' May 9, 2003 treatment plan;

– by Monday, October 18, 2004,

4. the parties shall confirm in writing to the other party their list of intended witnesses for the resumption of the arbitration hearing;

5. the Applicant shall confirm in writing to the Insurer whether there are any changes in the weekly IRB amounts being sought, and if so, provide the particulars of same;

6. the Applicant shall provide to the Insurer copies of all documentation upon which he is relying regarding his claim for payment of housekeeping and/or home maintenance services;

7. the Applicant shall,

– confirm in writing to the Insurer the particulars pertaining to his claim for a rehabilitation worker/assistant to help locate and co-ordinate treatment as a result of injuries sustained on August 22, 2002; and,

– provide to the Insurer copies of the documentation upon which the Applicant is relying with regard to this claim;

8. the Applicant shall confirm in writing to the Insurer whether he is continuing to claim as a section 15 expense the expenses referable to Mr. Tyler Vincent, Budget, Mr. Dan Paquin, Mr. Ron Sarazin and drivers provided by Transport Placement Services;

9. the Applicant shall confirm in writing to the Insurer the particulars of his claim for a special award as are then within his knowledge; and,

10. the Insurer shall confirm in writing to the Applicant the particulars of its specific defences regarding the October 31, 2003 incident (listed as Issue #1 above).

v. Witnesses

Further, the following witnesses for the continuation of the hearing were confirmed:

for the Applicant:

11. the Applicant, himself;

12. Ms. Debra Kawa, massage therapist;

13. Mr. Jacques Bonin, kinesiologist, for cross-examination;

14. Ms. Jennifer Gauthier, adjuster, for cross-examination;

15. Mr. Michael De Angelis, physiotherapist;

16. Dr. Clark Michlowski, D.C.;

17. Mr. Andy Pellerin, job foreman/former co-worker; and,

18. possibly Dr. Dubé, a treating general practitioner.

for the Insurer:

1. Dr. Dubé, if not called by the Applicant - to review his notes, not as an expert witness;

2. Mr. John-Paul Strasler, chartered accountant;

3. Ms. Kaija Jalbert, adjuster;

4. possibly other witnesses regarding the October 31, 2003 incident to be identified, including a representative of the WSIB; and,

5. assessors who participated in a disability DAC assessment or in a medical/rehabilitation DAC assessment.

The parties were specifically reminded at the hearing of Rule 42.4 of the DRPC which provides that no party may call more than two expert witnesses to give opinion evidence at a hearing, unless otherwise ordered by an arbitrator. The parties are also advised that under subsection 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, an adjudicator may "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes." It is my intent to resume the hearing by telephone discussion approximately twenty days prior to the hearing resumption date, to confirm and narrow the intended list of witnesses.

vi. Hearing Dates

The main hearing was adjourned to November 15, 16, 17 and 18, 2004, in Sudbury, Ontario. These dates were available to both parties.

MOTION FOR INTERIM BENEFITS

In the interim, Mr. Champaigne brought the following motion pursuant to subsection 65 of the DRPC pending the resolution of his dispute with Co-operators:

1. Is Mr. Champaigne entitled to interim benefits pursuant to subsection 279(4.1) of the Insurance Act?

Result:

1. Mr. Champaigne is not entitled to an award of interim benefits.

EVIDENCE AND ANALYSIS:

Subsection 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

Regarding interim benefits awards, Senior Arbitrator Rotter stated in Cripps and AXA Insurance (Canada) (OIC A-013360, August 8, 1997) that:

It is settled law that interim benefits are not ordered as a matter of course. Normally, arbitral orders are made only after the evidence and positions of the parties have been fully and thoroughly canvassed at an arbitration hearing. However, in certain cases, interim benefits can be ordered before a full hearing on the merits of the claim. The evidence considered on interim applications is usually less than complete. The arbitrator hearing the motion for interim benefits is required to deal with it in a summary fashion, and to make an order as expeditiously as possible. That order may be reversed or overturned after a full hearing of the matter.

Senior Arbitrator Rotter further stated that "[i]n determining whether interim benefits should be awarded, two major criteria have been identified:

(1) the merits of the case for entitlement

(2) the existence of an element of necessity or urgency"

However, as stated by Arbitrator Renahan in Kulasekarampillai and State Farm Mutual Automobile Insurance Company (FSCO A03-001063, January 21, 2004):

Arbitrators do not agree on the standard of proof they should apply to the merits of the applicant’s case. On one end of the spectrum, the test is expressed as:

. . . an Applicant must establish a prima facie case, in the sense that "the insured person must produce evidence which, if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement."²

On the other end of the spectrum, the test is expressed as:

. . . the standard of proof should be somewhat higher than at a hearing . . . the arbitrator should find it not only reasonable, but also very probable, that an applicant will be found to be entitled to the benefits sought.³

In Federow and Kingsway General Insurance Company,⁴ I said: "I believe the standard of proof varies depending on the urgency and the potential prejudice to the insurer in granting an interim order."

Arbitrator Renahan went on in Kulasekarampillai to posit a further approach to determining entitlement to interim benefits involving three criteria, namely, the merits of the case (that the applicant must demonstrate that it is more probable than not that he will achieve success at trial), that irreparable harm will be suffered, and balance of convenience. With respect, I adhere to the longer standing approach of the Commission, namely, the existence of urgency or necessity, and the merits of the case for entitlement.

Urgency or Necessity

I accept that there is financial urgency or necessity in this case, based on the following unchallenged sworn oral testimony of the Applicant:

(1) that the Applicant's only present source of income is $525 a month from welfare;

(2) that since the August 22, 2002 motor vehicle accident, the only monies that he has received from the Co-operators is approximately $1,500;

(3) that his ongoing monthly expenses include $600 for rent for the home where he has lived for ten years and $75 for hydro; that he pays approximately $1,200 to $1,300 a year to heat his home;

(4) that he has no savings left;

(5) that to pay for the necessities of life, he has borrowed money from relatives and friends, pawned his personal effects, and has taken loans or has charged items;

(6) that he owes his landlord $2,400 for rent; and,

(7) that because of financial difficulties, Dr. Michlowski, D.C. and Ms. Kawa, his massage therapist, are treating him without payment.

The Insurer relied on the decision in Coutu and Wawanesa Mutual Insurance Company (FSCO A01-00144, June 21, 2002) wherein Arbitrator Renahan stated that "the routine financial suffering that one expects in these circumstances, by itself, is not grounds to satisfy the urgency requirement." This would seem to be a somewhat different approach than, for instance, was taken by Arbitrator Wilson in Singh and Coseco Insurance Co./HB Group/Direct Protect (FSCO A01-000245, February 14, 2002), namely, whether there was credible prima facie evidence supporting continued disability and some measure of urgency (the latter, however, not requiring the applicant to be in extremis). However, even following Coutu, I am not persuaded that having Applicants reduced to applying for welfare and being dependent for food and shelter upon the charity of friends and relatives is "the routine financial suffering that one expects in these circumstances." I am persuaded that urgency or necessity has been established by the Applicant.

Entitlement

The difficulty with the Applicant's interim claim for benefits is that the "less than complete" evidence, to use the words from Cripps, presented at the motion raises significant questions, while largely not addressing key questions in this hearing, such as for what period did the Applicant suffer substantial inability to perform the essential duties of his occupation or employment and what is the correct quantum of the weekly IRB.

I have little evidence regarding IRB quantum presently before me. Largely what I have from the Applicant is a schedule as to how he has calculated his IRB claim. I do not have a report by someone with appropriate expertise who has reviewed the pertinent documentation in order to support an opinion. Nor do I have in evidence the Applicant’s supporting documentation. The oral evidence necessary to confirm the Applicant’s claimed post-accident earnings and expenses would perhaps take as long as a regular hearing. Motions for interim benefits were not intended to be replicas of the main hearing.

The Applicant’s arguments supporting his claim for interim benefits were restricted to the IRB claim. The documentary evidence filed by the Applicant at the hearing can be divided into the following categories:

– do not address symptoms or disability:

1. a letter from Ms. J.A. Gauthier of SCS to Dr. M. Dubé, dated September 30, 2002, seeking clarification as to when Mr. Champaigne should be fit to return to work;

2. a letter from Ms. Gauthier, dated October 4, 2002, to John-Paul Strasler, C.A. briefly confirming documentation received from the Applicant;

3. a letter from Ms. Gauthier to Ms. J. Murdock, O.T., dated October 22, 2002, indicating that the latter had recommended a job site analysis;

4. a December 5, 2002 letter from Mr. Champaigne authorizing Apex Motor Express to provide information regarding his earnings and deductions to date;

5. e-mails from Mr. C. Racicot of Co-operators to Ms. Gauthier, hoping that the IRB can be calculated;

6. a letter dated September 5, 2003 from Mr. Champaigne and Ms. Champaigne to Ms. K. Jalbert clarifying documentation provided and treating practitioners;

7. a letter dated June 29, 2004 from Work Able Centres Inc. to Mr. Champaigne offering him an opportunity to provide any additional information he feels may have an impact on the findings of the DAC assessors;

8. statements from Apex Motor Express Ltd., re broker transaction audit trail, which the Applicant submits shows that he was responsible for lifting of approximately 100,000 pounds per delivery. It was unclear how someone in the best of health could lift, by themselves, individual items weighing up to 3,700 pounds;

9. unsworn schedules indicating the Applicant's submissions as to his calculated loss of income, without supporting documentation;

– confirm symptoms and/or treatment, but do not address disability:

10. consultation note of Dr. W. Nolan, dated January 28, 2003, which states that the Applicant suffered a minor head injury and an acceleration/deceleration injury producing neck and left shoulder pain, together with symptoms of sleep disturbance and sore eyes;

11. an MRI report of February 7, 2003, from the Sudbury Regional Hospital, noting multilevel degenerative disc disease, most severe at C5-6 disc level;

12. a nerve conduction study of February 25, 2003, from the Sudbury Regional Hospital, showing "an incidental finding of a carpal tunnel syndrome" as well as "some chronic denervation/reinnervation changes in the deltoid muscle . . . which could reflect chronic C5 radiculopathy."

13. a consultation note of Dr. W. Nolan, dated March 4, 2003, stating that Mr. Champaigne may have a C6 nerve root impingement;

14. a four-page statement from Dr. C. Michlowski, D.C., dated May 6, 2004, indicating dates of treatment;

15. a June 17, 2004 referral slip for a December 2004 spinal consultation with Dr. Y.R. Rampersaud, orthopaedic surgeon at Toronto Western Hospital;

16. clinical notes re massage treatment which continue to December 2003; the notes do document complaints but offer little assistance regarding the issue of disability or the Applicant’s alleged losses incurred as a result of the incidents in question.

As stated by Arbitrator Makepeace in Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997), "[p]ain on its own is not compensable in the statutory accident benefit scheme." Entitlement to IRBs is based on impairment of function, not on symptoms or diagnosis.

• address disability, but raise significant questions:

17. a letter from Ms. Kawa, massage therapist, dated November 27, 2002, stating that Mr. Champaigne is regressing as help is no longer available to him and he has returned to full work duty; the report is written during a period entitlement is not disputed (August 31 to December 21, 2002) but when the Applicant is working and his own IRB schedule indicates that he is not entitled to a weekly IRB because of post-accident income being received;

Mr. Champaigne, however, further claims the cost of a replacement worker and truck rental during this period. The Insurer commissioned an accounting report dated December 23, 2002 by Mr. John-Paul Strasler, of H + A Forensic and Investigative Accounting. The report differs from the Applicant's submissions, specifically regarding the method of calculating losses from self-employment as a result of the accident and the application of post-accident income. Curiously, Mr. Strasler found the Applicant entitled to a weekly IRB of $400 based on prior earnings (wiped out by post-accident income), whereas the Applicant claims a weekly IRB of $266.90. I have insufficient evidence or submissions to make an informed finding, interim or otherwise, regarding IRB quantum.

18. a brief letter from Michael De Angelis, physiotherapist, dated February 13, 2004, with an attached treatment plan of even date. The correspondence states that the Applicant's injuries affect his ability to carry out the tasks of his employment, but does not address the statutory disability test as to whether the impairment is sufficient to cause substantial inability to perform the essential tasks of the Applicant's occupation or employment. The treatment plan also states that Mr. De Angelis is unable to say whether the employer (being the Applicant himself) is able to provide suitable modified employment.

Mr. De Angelis states that Mr. Champaigne had not developed any other disease, condition or injury not related to the automobile accident that could affect his response to treatment. It is not clear whether Mr. De Angelis was aware of the October 31, 2003 incident (or a work-related accident on June 16, 2003, noted below), and if he was not, what, if any, impact those incidents might have on his opinion.

Mr. De Angelis, however, also noted that Mr. Champaigne had an impairment which affected his ability to carry out his activities of normal life, separate from his employment. However, a letter filed by the Insurer dated November 5, 2002 from Ms. Murdock, O.T., states that Ms. Champaigne had declined an O.T. assessment for her brother "as he had returned to all activities of daily living around the house." Some clarification would seem to be required.

19. a consultation note of Dr. C.S. Lindsay, dated May 3, 2004, which very briefly indicates that the Applicant’s symptoms "have been persistent and quite disabling;" it is uncertain the degree to which the doctor’s opinion is simply based on the Applicant having graded his difficulties as 10 out of 10. Dr. Lindsay states that the Applicant is quite genuine in his frustration and desires "to continue working as he has to this point." However, the Applicant's submission at the hearing was that he has not worked since in or about February 2004, some two months earlier. Again, clarification would be helpful.

20. a half-page letter from Dr. C. Michlowski, D.C., dated December 3, 2003 stating that the Applicant’s job is very labour intensive and is constantly aggravating his condition. Dr. Michlowski indicates that the Applicant has now sustained an additional injury to his left knee as a result of falling off the tail gate of his truck, because of residual dizziness from "the MVA." Dr. Michlowski recommends that the Applicant stay off work until a case manager has been appointed to oversee his rehabilitation and he has recovered enough that he is fit for work.

The report does not indicate whether the disability arises from injuries sustained on August 22, 2002 or on October 31, 2003. There are fundamental jurisdictional issues regarding the October 31, 2003 incident, including whether there was an accident as defined. The impromptu nature in which the motion for interim benefits arose, the new issues only now identified as being in dispute and the summary nature of the proceeding did not allow for evidence to be entered regarding the various jurisdictional issues particular to the October 31, 2003 incident.

By letter dated August 9, 2004, the Applicant forwarded to my attention eleven further documents. By letter dated September 1, 2004, the Applicant forwarded three more documents. I have not read, nor am I considering these additional documents at this time. The Applicant had an opportunity on July 20th to present his case for interim benefits. He should have been fully prepared as this was to have been the actual hearing of this matter. The Insurer would then have had an opportunity to respond. To accept these documents as evidence at this time would be unfair to the Insurer, not having an opportunity to cross-examine the Applicant and/or file additional materials. I am not prepared to reopen the interim expense hearing, given that same would necessitate further delay and expense. As stated above, an applicant's case cannot simply be a moving target, with evidence being served for the first time during or after the hearing. The DRPC rules regarding disclosure exist to enhance fairness and avoid surprise.

The Applicant testified at the hearing that he has been treated for depression and that he has been referred to an ophthalmologist as well as to a brain injury clinic. I have no particulars of same in evidence before me. Mr. Champaigne further testified that he has seen a Dr. Ogundimu, orthopaedic surgeon, but does not have a report from him. He is to see a specialist, Dr. Rampersaud on December 7, 2004, in Toronto. What, if anything, the doctor may determine at this point is unknown. Mr. Champaigne testified that he looks for employment every day, but that he has not actually applied for any jobs. He testified that he cannot stand, sit or lift; that when he bends over he brings up, yet I have in evidence little medical documentation in evidence created after February 2004, which is when the Applicant submits he stopped working.

The Insurer submitted into evidence a disability DAC report dated June 9, 2003 which concluded that Mr. Champaigne had no significant physical or psychological impairment that would stop him from performing his occupation. The report stated that the Applicant continued to work at his job four out of five days on most weeks and on some weeks, five out of five days. The Assessment team opined that Mr. Champaigne was capable of working at his occupation on regular duties and hours. The Applicant argued that he was only able to continue working with the assistance of additional labour. However, the IRB schedule provided by the Applicant in May and June 2003, being the approximate period of the assessment, shows monthly payments for alleged replacement workers, as opposed to payments previously made weekly. One can speculate as to the reasons for the change in payments, but that is not evidence.

The Applicant relied on the DAC Functional Abilities Evaluation conducted May 14 and 15, 2003, which stated that on testing, the Applicant was unable to perform the lifting, carrying and pushing requirements of his job, as understood by the assessors. The latter, however, stated that the Applicant was currently performing these job demands at work. The Applicant disputed this statement. This question of credibility is best left to the main hearing, when a former co-worker is also expected to give evidence.

However, in any event, the DAC assessment also relied on the report of Dr. J.A. Finklestein, orthopaedic surgeon, that there was no objective reason that Mr. Champaigne could not continue with his activities. Dr. Finklestein’s seeming reliance on the comment that Mr. Champaigne would not harm himself carrying on these activities and his seeming dismissal of subjective complaints does, however, raise concerns as to whether Dr. Finklestein was cognizant of the case law regarding disability, specifically as set out by Arbitrator Makepeace in Quattrocchi.

The Insurer also submitted into evidence a medical/rehabilitation DAC letter dated September 9, 2003, which indicates that Mr. Champaigne was scheduled to attend for this assessment on June 17, 2003, but called the day of the assessment to cancel, reporting that he had sustained a low back injury at work on June 16, 2003 after bending over to push something. The letter reports that Mr. Champaigne was off work for six weeks. A subsequent medical/rehabilitation DAC report of Dr. A.D. Graham, physiatrist, dated September 16, 2003, states that the Applicant had "a period of prolonged rest during the summer of 2003," referring to his six weeks off work following the June 16, 2003 accident.

However, the IRB schedule prepared by the Applicant shows continuing significant post-accident income in the six weeks, and in the subsequent weeks, following the June 16, 2003 accident, notwithstanding the allegation that the Applicant was off work. Again, clarification is required. Further, the Applicant’s first entry in his IRB schedule after May 23, 2003 claiming a replacement worker is June 27, 2003. The question arises as to the extent, if any, to which subsequent replacement workers relate to the June 16, 2003 work accident rather than the August 22, 2002 motor vehicle accident.

The Insurer also submitted into evidence a DAC medical/rehabilitation report of Work Able Centres Inc., completed March 4, 2004. Dr. Baryshnik, a neurologist, opined that there were no abnormal neurologic findings. He noted, however, that a CAT scan of the neck and an ultrasound examination of the left shoulder had been scheduled. I do not know the results of same.

The DAC physiotherapy report found no significant impairments justifying the treatment proposed by Dr. Michlowski, D.C., and Mr. De Angelis, physiotherapist. The report indicated, curiously, that Mr. Champaigne had not returned to work since the work accident on October 31, 2003. At the hearing, however, the Applicant submitted that he continued working until February 2004. The report also indicated that Mr. Champaigne asserted that his ongoing disability was related both to the August 22, 2002 car accident and the October 31, 2003 incident. At the hearing, the Applicant submitted that the October 31, 2003 incident (which is the subject of jurisdictional issues) was a contributing factor only until January 4, 2004. Again, clarification is needed.

After the hearing, by facsimile transmission sent August 10, 2004, the Applicant forwarded a thirty-four paragraph unsworn "affidavit" which he wished me to consider as part of his evidence. I decline to do so. Firstly, it is not sworn. More importantly, the time for evidence on this motion has closed. The Insurer is not able to respond, either by submitting its own affidavit, calling its own witnesses, or cross-examining the Applicant. Although not stated by the Applicant, this is in effect a request to reopen the interim benefit hearing, in accordance with Rule 43 of the DRPC. I again decline to exercise my discretion to do so.

I further wish to caution specifically the Applicant that he should have his case ready to proceed on the presently set hearing dates of November 15 to 18, 2004. The Applicant should not expect that he will have a right to continue to file evidence subsequent to the end of the hearing.

Given the limited evidence before me, and the significant questions arising from this evidence, I am unable to conclude, at this point, that it is very probable or even more probable than not that the Applicant will be found entitled to IRBs, either because of questions regarding entitlement or because of questions regarding post-accident income. Nor am I even able to say that the Applicant has established a prima facie case by entering evidence sufficient to render reasonable a favourable conclusion. Accordingly, I find that the Applicant is not entitled to an award of interim benefits.

MOTION FOR INTERIM EXPENSES

At the conclusion of the two days of hearing, having heard the evidence set out above, I indicated that as the Applicant was essentially unrepresented, he may not be aware of other possible interim remedies available to parties in arbitration at the Commission, namely, an interim award of expenses.

The Applicant thereupon sought an award of interim expenses. I set out time lines that the Applicant shall serve on the Insurer and file with the Commission his submissions in this regard by Tuesday, August 10, 2004. The Insurer was to serve the Applicant and file with the Commission its submissions by Tuesday, August 17, 2004.

xxi. Law

The basis for awards of legal expenses are set out in the following provision of the Insurance Act, R.S.O. 1990, c. I.8, as amended:

Expenses

(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses, incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations. [emphasis added]

Interim award of expenses

(11.1) The arbitrator may at any time during an arbitration proceeding make an interim award of expenses, subject to such terms and conditions as may be established by the arbitrator.

In his recent decision of Pembridge Insurance Company (Pafco Ins. Co.) and Howden (FSCO P02-00031, May 17, 2004), Director Draper confirmed that the words "in the regulations" now refers to new criteria introduced in October 2003 in Ontario Regulation 275/03 amending Ontario Regulation 664. Director Draper went on to state that this new criteria continued "the move toward a more-results-based approach to expenses."

An interim award of expenses, since this remedy was introduced in the Insurance Statute Law Amendment Act, 1993, has been applied, in part, in circumstances where an applicant submitted that he or she was unable to bear the legal expenses of preparing for an arbitration hearing.

The leading decision in this regard has been that of Arbitrator Manji in Bernicky and Guardian Insurance Company of Canada (OIC A-006268, July 6, 1994). Arbitrator Manji held that as the proper time for the question of expenses was after all the issues, evidence and arguments had been placed before the arbitrator, a pre-hearing arbitrator should exercise his or her discretion to award interim expenses only in restricted circumstances.

Arbitrator Manji held that an interim award of expenses incurred for medical appointments was appropriate in the following circumstances:

(i) where the Application for Appointment of an Arbitrator raises a bona fide issue;

(ii) where the expenses claimed are reasonable and necessary for the conduct of the arbitration; and,

(iii) where the applicant is unable to carry the expenses claimed until the arbitration hearing.

Senior Arbitrator Naylor, in Haile and Old Republic Insurance Company (OIC A-008657 et al, January 6, 1995), held that "raising a bona fide issue" meant addressing "the merits of the application, not merely the good faith of the applicant in bringing it." In upholding the arbitration decision, Director Sachs (OIC P-008657, April 24, 1995) held that:

The criteria set out in the Bernicky case are a useful touchstone for assisting arbitrators in exercising their discretion to make interim expense awards. In some cases, greater weight may be placed on one of the listed factors over another. In others, it may be appropriate for all of the considerations to be met. There may be, in some cases, as yet unconsidered matters which will weigh in the balance. The category of what may be relevant or appropriate criteria for making such interim orders cannot be considered closed, or limited by the Bernicky case.

The overriding principle, it seems to me, is that the arbitrator's discretion should be exercised judicially having regard to the usually limited information available on such motions.

Notwithstanding the introduction of criteria in Ontario Regulation 664, as amended by Ontario Regulation 464/96, Arbitrator Alves held in Adu-Agyei and Zurich Insurance Company (FSCO A97-001546, June 16, 2000) that the "Bernicky criteria remain helpful to an arbitrator in exercising the discretion to grant or refuse an applicant's request for interim benefits." Arbitrator Alves held that in her view, "the thrust of the Bernicky criteria is to facilitate applicants' access to the adjudication of legitimate disputes." However, as stated by Director's Delegate Draper in Kotak and CAA Insurance Company (Ontario) (FSCO P-00019, March 27, 1997), the "interim expenses section of the Insurance Act is not intended to guarantee paid legal representation."

Arbitrator Evans agreed, in Clipperton and Zurich Insurance Company (FSCO A97-001771, August 22, 2000), that the Bernicky criteria were appropriate, notwithstanding amendments to the legislative scheme. He also agreed with Arbitrator Alves that "it would be premature to express an opinion on the merits" when entertaining a motion for interim benefits. I also note the decision of Arbitrator Miller in Nadem and Coseco Insurance Co./HB Group/Direct Protect (FSCO A00-000628, May 10, 2001), that the onus of establishing one's entitlement to an award of interim benefits rests with the Applicant.

I also note that notwithstanding the various amendments to the Insurance Act, subsection 282(11.1) (which pertains to interim awards of expenses) has not been amended since its inception in 1993. Although the ultimate award of expenses may, to use the words of Director Draper, "continue the move toward a more results-based approach to expenses," the question of interim expenses in this context appears to be more concerned with process than results. The present subsection 12(2) of Ontario Regulation 664 states that the set criteria (regarding entitlement to legal expenses) shall be considered by the arbitrator "under subsection 282(11) of the Act." Given the absence of any reference in subsection 12(2) of Ontario Regulaton 664 to subsection 282(11.1) of the Insurance Act, or any reference in subsection 282(11.1) to Ontario Regulation 664, I take the intention of the legislature to be that the Bernicky criteria remain.

The Applicant sought an interim award of expenses of the following items:

(i) arbitration filing fee

$ 100.00

(ii) optometrist referral for Ophthalmologist's assessment and report

$ 75.00

(iii) psychological report

$2,000.00

(iv) physical demands analysis and work site analysis

$1,800.00

(v) summons to witness and conduct money for seven witnesses

$ 487.20

(vi) process service fees

$ 800.00

(vii) legal consultation fees

$3,000.00

(viii) neuropsychological report

$3,000.00

(ix) clinical notes and records - 5x

$ 500.00

(x) mail and courier charges

$ 200.00

(xi) typing, printing and copying charges

$ 150.00

(xii) facsimile charges

$ 60.00

(xiii) long distance charges

$ 300.00

(xiv) expert reports from Drs. Robinson, Bell and Rampersaud

$1,500.00

I am satisfied, based on the evidence received under oath on July 20, 2004, as set out above, that the Applicant is not able to carry the expenses claimed until the arbitration hearing. Given the Insurer's agreement as to an initial period of disability, legitimate questions as to the weight one should afford the DAC disability report and evidence of continuing symptoms if not disability, I am satisfied that there are bona fide issues in dispute. The third criteria is whether the expenses claimed are reasonable and necessary for the conduct of the arbitration. I find that a further criterion in this case is whether the expenditure will assist me in fairly determining the issues in dispute.

I am persuaded that without financial assistance, the Applicant will be unable to present evidence which might assist in fairly determining the issues in dispute. I am persuaded that the following expenses are reasonable and necessary for this hearing, and will assist me in fairly determining whether or not the Applicant is entitled to the benefits in issue and the quantum of same:

(a) $208.80 for a summons to witness and conduct money for Mr. Andy Pellerin, job foreman and former co-worker, as identified under the proposed witnesses above, and for two expert witnesses, to be determined and identified to the Insurer by the Applicant at least thirty days before the hearing resumption date (the monies payable to the latter witnesses being subject to possible later increase in accordance with subsection 5(3) of the Expense Schedule in section F of the DRPC). The monies are to be made payable directly to the witnesses.

It appears to me that Mr. Pellerin, who allegedly worked with Mr. Champaigne, may have relevant testimony regarding the Applicant’s ability to perform the essential tasks of his occupation or employment. The Insurer is proposing to possibly call several expert witnesses. I find that it is reasonable in the circumstances of this case that the Applicant be able to call two expert witnesses, as allowed under Rule 42.4 of the DRPC.

(b) reasonable, professional, process server fees for the said individuals, pursuant to subsection 4(4) of the Expense Schedule of Section F of the DRPC. The monies are to be payable directly to the process server, upon receipt of his or her account.

I find this to be a reasonable and necessary expenditure to assist in ensuring the appearance of the said witnesses at the arbitration hearing.

(c) an expert report addressing the Applicant's physical condition, up to the maximum $1,500, as allowed in subsection 5(5) of the Expense Schedule of Section F of the DRPC, subject to the account being reasonable. The monies are to be made payable directly to the expert upon receipt of his or her report and account.

Given the concerns at the hearing raised regarding the accuracy of the workplace assessment prepared by Insurer's evaluator, Mr. J. Bonin, and further, given the concerns expressed regarding the report of Dr. Finklestein, orthopaedic surgeon, who conducted a DAC disability assessment, I find it reasonable and necessary that the Applicant be able to have an expert report prepared addressing the entitlement and causation issues in dispute from the perspective of his physical injuries.

(d) an expert report addressing the issue of IRB quantum, up to the maximum $1,500, as allowed in subsection 5(5) of the Expense Schedule of Section F of the DRPC, subject to the account being reasonable. The monies are to be payable directly to the expert upon receipt of his or her report and account.

The Insurer has retained an expert regarding the IRB quantum issue. A further report from this expert is expected to be served on the Applicant. Mr. Champaigne advises that Ms. Wilson is assisting him, without remuneration, regarding his IRB quantum. The Applicant advises that the delays and changes regarding his quantum claim are, in significant part, due to an alleged head injury sustained by Ms. Wilson. I am not persuaded that Ms. Wilson has any expertise regarding questions of IRB quantum. I do note, however, the recent decision of Director Draper in Wilson and Liberty Mutual Insurance Company (FSCO P04-000007, July 2, 2004), wherein the same Ms. Wilson states that she has "impaired dichotic word listening and impaired memory, organization and cognitive-communication skills, with a below average neurocognitive proficiency."

I am persuaded that an expert report from the Applicant addressing the IRB quantum issue is not merely both reasonable and necessary to fairly understand the positions of both parties, but is also necessary to assist the expeditious and cost-efficient conduct of the hearing.

(e) legal consultation fees: 10 hours at the legal aid rate of $73.87 an hour, in accordance with Rule 78.1 of the DRPC, including 7% GST = $790.41. The monies are to be paid directly to the legal counsel, upon receipt of his or her account.

The Insurer submits that "to date, Mr. Champaigne has been ably assisted by his family and friends who have represented him throughout the process and are amply aware of the provisions of the Insurance Act, the Accident Benefits Schedule, and the Dispute Resolution Code." I respectfully disagree, for the reasons set out throughout this decision. I find that assistance from counsel in preparing for this hearing is reasonable and necessary in order, again, to assist in ensuring that the arbitration hearing runs as expeditiously and, ultimately, as cost effectively as possible. I find that the hours of legal assistance requested are reasonable and necessary. I am not advised of the experience factor of the proposed counsel. I, accordingly, award the Tier 1 hourly legal aid rate of $73.87.

I am not presently persuaded as to the necessity or reasonableness of the other requested expenses. Regarding photocopying of documents for service upon the Insurer and the Commission, I would hope that the Insurer will continue to be appropriately accommodating. Regarding the clinical notes and records sought by the Applicant, the Insurer states that it has requested same and undertakes to provide the Applicant with copies of any documentation received from the third parties.

September 3, 2004

Lawrence Blackman Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 130

FSCO A03-001344

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JERRY CHAMPAIGNE

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, upon hearing the Applicant's motions for interim benefits and interim expenses, it is ordered that:

1. Mr. Champaigne is not entitled to an award of interim benefits.

2. Mr. Champaigne is entitled to an award of the following interim expenses:

(a) $208.80 for a summons to witness and conduct money for Mr. Andy Pellerin and two expert witnesses, to be determined and identified to the Insurer by the Applicant at least thirty days before the hearing resumption date. The monies are to be made payable directly to the witnesses;

(b) reasonable, professional, process server fees for the said individuals; the monies to be payable directly to the process server, upon receipt of his or her account;

(c) an expert report addressing the Applicant's physical condition, up to the maximum $1,500, as allowed in subsection 5(5) of the Expense Schedule of the DRPC, subject to the account being reasonable. The monies are to be made payable directly to the expert upon receipt of his or her report and account;

(d) an expert report addressing the issue of IRB quantum, up to the maximum $1,500, as allowed in subsection 5(5) of the Expense Schedule of the DRPC, subject to the account being reasonable. The monies are to be payable directly to the expert upon receipt of his or her report and account; and,

(e) legal consultation in the amount of $790.41. The monies are to be paid directly to the legal counsel, upon receipt of his or her account

September 3, 2004

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1For the August 22, 2002 accident, the Schedule is 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 (the "1996 Schedule"). For the October 31, 2003 incident, the Schedule is further amended to Ontario Regulation 458/03 (the "2003 Schedule").
2. 2Ramalingam and State Farm Mutual Automobile Insurance Company (FSCO A02-001646, September 5, 2003).
3. 3Cripps and AXA Insurance (Canada) (OIC A-013360, August 8, 1997).
4. 4(FSCO A00-001032, October 20, 2000).