Fernanda Monteiro v. Aviva Canada Inc., 2004 ONFSCDRS 47

Neutral Citation: 2004 ONFSCDRS 47 FSCO A02-000055

BETWEEN:

FERNANDA MONTEIRO Applicant

and

AVIVA CANADA INC. (FORMERLY CGU GROUP) Insurer

DECISION ON A MOTION

Before: Anne Sone Heard: By telephone conference call on January 30, 2004.

Appearances: David A. Payne and Joseph Pileggi for Mrs. Monteiro Robert H. Rogers for Aviva Canada Inc. (formerly CGU Group)

Issues:

The Applicant, Fernanda Monteiro, was seriously injured in a motor vehicle accident on November 21, 1996. She applied for and received statutory accident benefits from Aviva Canada Inc. (formerly CGU Group) ("Aviva"), payable under the Schedule.¹

At a resumption of the pre-hearing in this case on January 30, 2004, Mrs. Monteiro brought a motion to add issues to her arbitration hearing. On that date, I gave an oral decision, with written reasons to follow.

The issues are:

Should additional issues concerning the expenses of managing Mrs. Monteiro's estate, including substitute decision maker and guardianship services, be added as issues to this arbitration proceeding?
Should additional issues concerning out-of-pocket travelling expenses for Mrs. Monteiro's family members be added to this arbitration proceeding?

Result:

Additional issues concerning the expenses of managing Mrs. Monteiro's estate, including substitute decision maker and guardianship expenses, will not be added at this time to this arbitration proceeding.
Additional issues concerning out-of-pocket travelling expenses for Mrs. Monteiro's family members will not be added at this time to this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Fernanda Monteiro wishes to add various claims for the expenses of managing her affairs, and for out-of-pocket travelling expenses for family members who came to visit her, to an arbitration proceeding that was scheduled to be heard on February 9, 10, 11 and 12, 2004. Aviva objects to adding these issues to the arbitration so close to the hearing date.

It is not disputed that on November 21, 1996, Mrs. Monteiro was struck by a motor vehicle while she was attempting to cross a street in Toronto. She had immigrated to Canada from Portugal in or about 1965. At the time of the accident, she was 59 years old, widowed and all her family members, except for her son, resided in Portugal. In July 1997, her son relocated to Portugal to live with Mrs. Monteiro's sister and her family.

As a result of the accident, Mrs. Monteiro sustained serious injuries including a severe closed head injury. This injury renders her entirely dependent on others for all aspects of her personal care.

After the accident, Mrs. Monteiro was transported to Sunnybrook Health Science Centre where she remained until she was transferred to the Special Care Unit at the Toronto Rehabilitation Institute's Queen Elizabeth Centre on August 20, 1997. She has remained a patient at that facility since that time.

After Aviva disallowed her medical benefit claim for transportation to Portugal to be closer to family members, and for an attendant care benefit, Mrs. Monteiro applied for mediation of these and some other related issues.

After the mediation failed, a pre-hearing was held by teleconference on July 11, 2002. In her pre-hearing letter dated August 8, 2002, Arbitrator Miller confirmed that the following issues in dispute had been identified and agreed to as follows:

Is Mrs. Monteiro entitled to receive a medical benefit for transportation expenses to Portugal, claimed pursuant to section 14 of the Schedule?

Mrs. Monteiro's claim for expenses is to move her from Toronto Rehabilitation Institute, Queen Elizabeth Centre, to a long-term care facility in Portugal where she will be close to family and be communicated to in her native Portuguese language.

Is Mrs. Monteiro entitled to attendant care benefits, pursuant to section 16 of the Schedule?
Is CGU liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, because it unreasonably withheld or delayed payments to Mrs. Monteiro?
Is CGU liable to pay Mrs. Monteiro's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mrs. Monteiro liable to pay CGU's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mrs. Monteiro entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Mrs. Monteiro had applied for arbitration on these issues on December 25, 2001. Aviva filed a Response by an Insurer to an Application for Arbitration dated February 14, 2002, regarding these same issues.

Estate Management Services:

Mrs. Monteiro wishes to formally add an issue relating to the expenses of estate management services to the arbitration. I understand Mrs. Monteiro clarified these expenses on October 15, 2002. This issue has been mediated. The cover letter enclosing the mediator's report is dated April 15, 2003. It states as follows:

Ms. Monteiro claimed entitlement to a Rehabilitation Benefit, pursuant to s.15 of the SABS for the following estate management services:

funding in the amount of $20,000.00 per year for estate management services ongoing from November 21, 1996 as set out in the Estate Management Report of October 15, 2002.

an outstanding amount of $3,366.50 for estate accounting services provided by Reynolds Estate Accounting Services from November 21, 1996 to January 18, 2002.

an outstanding amount of $450.00 for transaction records and expense report provided by Sonia Lopes, Bank of Montreal, on June 8, 2002.

an outstanding amount of $12,490.87 for services provided by Jordan Atin, solicitor representing Cary Monteiro (co-guardian of Ms. Monteiro) from March 7, 2001 to August 30, 2002.

an outstanding amount of $5,817.53 for services provided by Dan Lokun, solicitor representing Jorge Antunes (co-guardian of Ms. Monteiro) from February 6, 2002 to September 12, 2002.

CGU Insurance raised the following preliminary issues:

i. The above claims are not benefits provided for in the SABS.

ii. Mediation should not proceed pursuant to s.50(a) and s.38 of the SABS as no treatment plans were submitted for benefits claimed.

Mrs. Monteiro never applied for arbitration on these issues. She is now seeking to add these issues to the arbitration. She states that Aviva was aware of these issues through discussions and correspondence with its counsel, Mr. Robert H. Rogers. In a memorandum dated July 29, 2003, Joseph Pileggi states as follows:

On July 14, 2003, I had a long discussion with Mr. Rogers (the solicitors representing CGU in the no-fault action).

I reviewed with Mr. Rogers the issues that should take place at the scheduled arbitration in January of 2004.

Issues

Whether or not the insurer should pay for the cost of Mrs. Monteiro['s] hospitalization in Portugal where her family lives. Based on the Bob Lychenko report, the cost is

a) $129,544.60 per year at the H.S.L.F; and

b) $ 13,358.43 per year for med/equipment/supplies.

The one-time cost of actually flying to Portugal $26,746.40. and the one time cost of equipment and supplies needed to be sent to Portugal as noted in the Lychenko report (pg 13) $16,285.28.

The original request for Mrs. Monteiro to go to Portugal was made by Mr. Taberner on January 24, 2000. He also requested certain sundry items and the cost of Case Management services. To date, nothing has [been] paid.

Interest at the rate of 2% per month from January 24, 2000.

On October 15, 2002, we formally remitted to the insurer the following estate expenses:

i. Eric Reynolds-Chartered Accountant $3,366.00;

ii. (Sonya Lopes-Bookkeeper $450.00;

iii. Jordan Atin - Solicitor $12,490.87);

iv. Dan Lokun $5,817.53;

v. Family expenses_[amount left blank in original]

vi. Interest at the rate of 2% per month from October 15, 2002 to [sic]

Paul Colangelo in his report estimates that the average cost of Estate Management is $16,500.00. The bank and Mr. Antunes have been providing this service. It's our position, that $16,500.00 per year should have been paid from the date of the accident (November 21, 1996 to the present - approximately seven years) which equals $115,500.00.

This memorandum was provided to me with a covering letter, which indicates that it was copied to Mr. Rogers on December 15, 2003. However, there is a responding letter from Mr. Rogers dated November 25, 2002, which indicates that he saw this memorandum earlier. In it he states the following:

I am responding to your correspondence dated October 15, 2002.

The expenses itemized in your correspondence do not fall within the parameters of the Statutory Accident Benefits Schedule. If you disagree with this position, please provide reference to the specific sections you claim support this request. Alternatively, if you are relying on the provisions of either Section 15 or 16, please make application in the form contemplated by Section 38 and 39 of the Schedule. If you seek to characterize these services as case management, please comply with Section 17 of the Schedule.

Although I am advising you of my client's current position, this should not be treated as a formal denial pursuant to the S.A.B.S. CGU's formal response will await a proper submission of expenses on behalf of Mrs. Monteiro.

I trust this satisfactorily explains my client's current position.

To my knowledge, Mrs. Monteiro did not formally respond to this letter.

Mrs. Monteiro argues that since Aviva was aware of these claims, they should be included in the arbitration. She states that a witness will be coming from Portugal, and that it would be most convenient to have all issues dealt with at one arbitration hearing. She also states that pursuant to Rule 33.1(d) of the Dispute Resolution Practice Code, Fourth Edition, May 31, 2001, I have jurisdiction, in pre-hearing discussion, to deal with procedural and preliminary issues, and that pursuant to Rule 33.1(h), I may deal with any matter that I consider appropriate.

Aviva objects to adding the estate management issues to the hearing starting on February 9, 2004 on the basis that it will be prejudiced if these issues are added at this late date. It points out that there is a difference between being aware of issues for the purpose of settlement discussions, and being prepared to deal with issues at an arbitration. It submits that Mrs. Monteiro had ample opportunity to apply for arbitration on these issues, and Aviva would have had an opportunity to properly respond by, for example, hiring an expert to review Mrs. Monteiro's estate claims. Up to now, it has denied the claim on the basis that it is not recoverable under the Schedule. It also submits that it is not restricted to this basis for denial.

Under most circumstances, it is best to have one arbitration proceeding to deal with all outstanding issues between the parties. However, in this case, I concur with Aviva that the potential prejudice to it outweighs this consideration. This is a complex matter dealing with accounts from a number of people, including two lawyers. Should the evidence of the witness from Portugal be necessary for a second hearing, there is a precedent for doing this by telephone.² I also note that the Notice of Pre-Hearing sent by the Commission dated July 10, 2002 points out that one of the purposes of the pre-hearing is to "assist the parties to prepare for arbitration by (a) identifying and obtaining agreement as to the issues for arbitration." For these reasons, I am not prepared to order that the estate management issues be added as issues to the arbitration at this time.

Out-of-Pocket Travelling Expenses:

Mrs. Monteiro acknowledges that this issue has not been mediated. She submits that since there have been a number of private settlement discussions regarding this matter, it is unnecessary to have a Commission mediation. I disagree. Private settlement discussions are not a substitute for a formal mediation. The purpose of this requirement is to avoid surprising the opposing party. In this case, out-of-pocket travelling expenses do not flow naturally and consequentially from the issues already in dispute. Section 281(1) of the Insurance Act does not allow an insured person to refer issues in dispute to an arbitrator, unless mediation has been sought and failed.

Under these circumstances, I cannot add this issue to the arbitration unless and until the mediation fails. Furthermore, I have no evidence that Mrs. Monteiro has particularized the amounts she is claiming under this heading. As noted above, Mr. Pileggi's memorandum of July 29, 2003 leaves a blank beside the heading "Family expenses." While I might not have refused to add this issue to the arbitration on this basis alone, it supports my concern that adding issues so close to the arbitration date is prejudicial to Aviva. For these reasons, I am not prepared to add the issue of out-of-pocket travelling expenses to the arbitration at this time.

March 31, 2004

Anne Sone Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 47 FSCO A02-000055

FINANCIAL SERVICES COMMISSION OF ONTARIO