Neutral Citation: 2004 ONFSCDRS 153
FSCO A04-000300
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
RAVEENDRAN THAMBIMUTHU
Applicant
and
ING INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
Lawrence Blackman
Heard:
By telephone conference call on October 5, 2004.
Appearances:
David S. Wilson for Mr. Thambimuthu
Ryan M. Naimark for ING Insurance Company of Canada
Issues:
The Applicant, Mr. Raveendran Thambimuthu, was injured in an October 18, 2002 motor vehicle accident. He applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.1 ING subsequently terminated payment of certain benefits, specifically weekly income replacement benefits ("IRBs"). The parties were unable to resolve their disputes through mediation, and Mr. Thambimuthu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
This matter was scheduled to proceed to a four-day arbitration hearing starting October 4, 2004. Shortly before the commencement of the hearing, the case settled. The Applicant, however, now wishes to adjourn the arbitration hearing to a new set date, should an issue arise regarding his entitlement to post-104 week IRBs. The Insurer opposes this adjournment request. Accordingly, the present issue is:
- Should the arbitration hearing be adjourned to a new date?
Result:
- The arbitration hearing is not adjourned to a new date. I hereby give notice of the Dispute Resolution Group's intention to close this file in ninety days on the basis of the reported settlement. Should a party object to the closure of the file, the party must, no later than December 6, 2004, notify the Dispute Resolution Group and the other party, in writing, of its reasons for objecting to the file being closed. The other party will have until December 20, 2004 to serve and file its submissions in response. I will remain seized of any dispute regarding closure of this file.
EVIDENCE AND ANALYSIS:
The parties agree that all issues in dispute in this proceeding have presently settled. The agreed resolution includes the present reinstatement of payment of IRBs to the Applicant.
The Applicant notes that his Application for Arbitration herein includes a claim for post 104-week IRBs. The significance of 104 weeks is that the disability test for the purpose of entitlement to IRBs changes at that point from "one's own occupation" test to an "any employment" test.
The May 27, 2004 pre-hearing letter in this matter, however, indicates that regarding the IRB entitlement issue:
The parties agreed that, although the Applicant's claim is ongoing, the dispute being referred to arbitration at this time relates to his entitlement to income replacement benefits prior to the two year mark.
The Applicant submits that the Insurer may terminate payment of IRBs at or around the 104-week mark, which occurs on October 18, 2004. Mr. Thambimuthu submits that as post-104 week IRB entitlement has not yet been addressed, that remains a potential issue in dispute.
To avoid any delay in having this matter heard should IRBs indeed be subsequently terminated, the Applicant submits that a new hearing date should now be set for the possible post-104 week IRB issue.
ING maintains that as there are no issues presently in dispute, the Commission does not have jurisdiction to allow this matter to proceed. ING further states that should there in fact be a dispute between the partes at some future date regarding IRB entitlement, while it is not necessary to again mediate the issue, the Applicant would have to reapply for arbitration.
Decision
This Commission is a creature of statute. Its governing statute is the Insurance Act, R.S.O. 1990, c.I.8, as amended. Section 279 thereof provides that disputes in respect of any insured person's entitlement to statutory benefits or in respect of the amount of the statutory benefits "shall" be resolved in accordance with sections 280 to 283 of the Act and in accordance with the Statutory Accident Benefits Schedule.
The Applicant was unable to provide any legislative authority which affords the Commission jurisdiction when there are no issues in dispute. The Applicant did note a November 14, 2003 letter in Mootoo and Allianz Insurance Company of Canada (FSCO A02-001765) wherein the file was kept open and new hearing dates were set for a potential post-104 week IRB issue. The arbitrator in that case, however, noted that "most" (i.e., not all) of the matters in dispute had been resolved. It is my further understanding that the setting of new dates in that matter proceeded on consent, and that the file was ultimately closed without an actual hearing.
The Applicant also referred to the matter of Balasundaram and Guarantee Company of Canada (FSCO A03-000611). However, it is my understanding that a decision in that file is still pending.
On the basis of the present arguments and factual situation, I am not persuaded that I have jurisdiction to adjourn this matter to a new hearing date, given what I am advised is a settlement of all of the live issues. Simply put, I am unable to find the authority allowing the Commission to take reservations pending the emergence of an actual (as opposed to a potential) issue. The question then becomes, how shall the Commission dispose of this matter?
Rule 69.4 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003) (the "Code") provides that either party may request that an arbitrator issue an order dismissing the proceeding, on the consent of the parties, upon the filing of a signed Settlement Disclosure Notice, together with a signed consent that the proceeding be dismissed and that no party to the proceeding is under a disability. The requirements of this provision have, obviously, not been met.
Rule 69.2, however, also provides that if a dispute is settled, the Dispute Resolution Group "will" close its file either immediately upon receipt of written confirmation from the parties that the entire matter is settled (which has not yet been forthcoming) or twenty days following notice of the Dispute Resolution Group's intention to close the file on the basis of a reported settlement.
Having been advised that there are presently no issues in dispute, I hereby advise the parties of the Dispute Resolution Group's intention to close this file. Pursuant to Rule 81 of the Code (which pertains to waiver of procedural requirements), given that we are presently at the 104-week mark, I exercise my discretion to vary the requisite notice period from twenty days to ninety days to allow the parties a reasonable period to clarify matters. I further exercise my discretion in setting a December 6, 2004 time limit for any party objecting to the closure of the file, in accordance with Rule 69.3 of the Code, to so notify both the Dispute Resolution Group and the other party, in writing, with reasons. The other party will then have until December 20, 2004 to serve and file its responding submissions, if any.
I will remain seized of any dispute regarding closure of this file.
October 18, 2004
Lawrence Blackman
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 153
FSCO A04-000300
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
RAVEENDRAN THAMBIMUTHU
Applicant
and
ING 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 arbitration hearing is not adjourned to a new date. I hereby give notice of the Dispute Resolution Group's intention to close this file in ninety days on the basis of the reported settlement. Should a party object to the closure of the file, the party must, no later than December 6, 2004, notify the Dispute Resolution Group and the other party, in writing, of its reasons for objecting to the file being closed. The other party will have until December 20, 2004 to serve and file its submissions in response. I will remain seized of any dispute regarding closure of this file.
October 18, 2004
Lawrence Blackman
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.