Neutral Citation: 2004 ONFSCDRS 58

FSCO A02-001277

BETWEEN:

BASIL McINTOSH

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Eban Bayefsky

Heard:

August 12 and 13, 2003, in Kitchener, Ontario.

Appearances:

Mark S. Grossman for Mr. Mcintosh

John Pavoni for Allstate Insurance Company of Canada

The Applicant, Basil Mcintosh, was injured in a motor vehicle accident on April 21, 2000. He applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate denied Mr. Mcintosh benefits on the basis that he had allegedly failed to submit an application for benefits within 30 days after receiving the relevant application forms. The parties were unable to resolve their disputes through mediation, and Mr. Mcintosh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Is Mr. McIntosh precluded from proceeding to arbitration because, without a reasonable explanation, he failed to submit an application for benefits to Allstate within 30 days after receiving the application form, as set out in sections 32(3) and 50(a) of the Schedule?
Is either party entitled to their expenses of the preliminary issue hearing?

Mr. McIntosh complied with section 32(3) of the Schedule and is entitled to proceed with his arbitration.
The issue of expenses is reserved to the Arbitrator presiding at the main hearing.

Section 50(a) of the Schedule provides, in part, that an insured is precluded from commencing a mediation unless he or she submitted an application for a benefit within the time limits prescribed by Part X of the Schedule. Section 32(3) states that a person shall submit an application for a benefit within 30 days after receiving the application forms. Section 31(1) of the Schedule states that a person's failure to comply with these time limits does not disentitle the person to a benefit if the person has a reasonable explanation.

The parties addressed various issues in respect of Mr. McIntosh's compliance with section 32(3) of the Schedule, including whether Allstate had waived its reliance on the relevant time limits. In my view, this matter can be disposed of on the basis of the simple question of whether Mr. Mcintosh provided an application for benefits within 30 days of receiving the application forms.

The parties' interaction between April 2000 and January 2001

The dealings between Mr. Mcintosh and Allstate spanned a period of two years, from April 2000 to April 2002. In my view, the facts relevant to his compliance with section 32(3) occurred between April 2000 and January 2001. These facts are as follows.

Mr. Mcintosh was injured in a motor vehicle accident on April 21, 2000. He testified that he called his insurance broker and Allstate, and that he told them about the accident. Mr. Mcintosh stated that Allstate paid him money to repair his car. He said that he continued to suffer pain as a result of the accident. He stated that the independent adjuster retained by Allstate, Mr. Mark Potts of Crawford Adjusters Canada, met with him and gave him an accident benefits package. Mr. Mcintosh said that he also received the package from Allstate's Mississauga office. Mr. Doug Morgan, a senior staff claims consultant with Allstate, testified that, initially, two claims had been set up for Mr. Mcintosh's accident, because it was first reported by the third-party adjuster and then reported by the insured's agent. Mr. Morgan stated that when Allstate realized this, they merged the two files. Mr. Morgan further testified that Allstate's computerized "diary" of Mr. Mcintosh's claim shows that he was sent an Application for Accident Benefits on May 2, 2000, along with documents explaining the need to send the completed Application within thirty days.

The insurer's diary shows that, on May 2, 2000, Ms. Jane Yeung of Allstate spoke with Mr. Mcintosh on the phone about the accident and advised him of the accident benefits process, including the need to fill out and return the Application as soon as possible. The diary further shows that on May 31, 2000, Mr. Mcintosh told Ms. Yeung that he had mailed the Application for Accident Benefits the previous Thursday. Ms. Yeung notes that she advised Mr. Mcintosh to give the Employer's Confirmation of income form to his employer, to get the Disability Certificate form filled out and to get collateral benefits from his wife. Mr. Mcintosh testified that he did not recall ever speaking with Ms. Yeung.

On June 1, 2000, Allstate's diary shows that Ms. Yeung spoke with the passenger in the other vehicle involved in the accident in order to collect information about the accident. It indicates that, on June 2, 2000, Ms. Yeung spoke with Mr. Mcintosh and that he said that he had mailed the first page of the Application to her. The diary states that Ms. Yeung advised him that this was incomplete and that she mailed him another copy of the Application. Allstate's diary also shows that, on June 12, 2000, Allstate's Mississauga office sent Mr. McIntosh another Application for Benefits.

Mr. Mcintosh testified that he dropped one Application off at Crawford's Kitchener office and that he mailed three to Allstate's Mississauga office. Mr. Mcintosh stated that he could not recall when he sent the other two Applications to the Mississauga office, but that as soon as he got them, he sent them back the same week.

On June 22, 2000, Allstate sent Mr. Mcintosh an Explanation of Benefits Payable stating, in part, that Allstate had received a Disability Certificate but not a completed Application for Accident Benefits, and that Mr. Mcintosh had not returned several phone messages to him over the previous two months. Allstate's diary confirms that a number of phone messages were left for Mr. Mcintosh which he did not return.

Mr. Mcintosh testified that he did not recall the Explanation of Benefits. He said that he filled out the application package forms and sent them to Allstate's Mississauga office in a big envelope, which cost more than a usual letter. He said that he never received any messages on his answering machine and that no one ever called him.

On June 27, 2000, Ms. Yeung recorded in Allstate's diary that she spoke with Mr. Mcintosh on the phone and that he said that he had mailed the Application the previous week and that he was upset there were so many forms to fill out. Ms. Yeung noted that this might have been due to the duplicate claims that had been set up for Mr. Mcintosh. Ms. Yeung noted that Mr. Mcintosh was hard to understand and the he did not understand English very well. Mr. Mcintosh testified that English was his "mother tongue" and that he could read and write English.

On June 30, 2000, Mr. Potts wrote to Mr. McIntosh confirming that he needed to complete the Application that he had been sent. Mr. McIntosh testified that he filled out the Application for Benefits, and mailed one to Allstate's Mississauga office about a week after the accident. He said that he also dropped an Application off at Crawford's Kitchener office (where Mr. Potts worked). He said that, about a week or two after the accident, he went to the Kitchener office to deliver the Application and that he left it with the receptionist since Mr. Potts was not there at the time. He also said that he did this within a month of the accident. Mr. McIntosh said that he left a lot of messages for Ms. Yeung, but that he could not contact her.

On July 6, 2000, Mr. Potts met with Mr. McIntosh at his home and interviewed him in regard to the circumstances of the accident. Mr. McIntosh testified that he saw Mr. Potts at his office and denied seeing Mr. Potts at his home. Mr. Potts prepared a five-page hand-written transcript of the interview, as well as a drawing of the intersection where the accident occurred. Mr. McIntosh signed each page of the document. He also provided Mr. Potts a signed Permission to Disclose Health Information form. Mr. Potts noted both that Mr. McIntosh had a reasonable command of the English language, and that Mr. McIntosh had a "difficult time with the use of the English language." Mr. Potts noted that Mr. McIntosh answered all questions put to him, but that he had to be "quite specific when asking questions for specific answers."

In July or August 2000, Allstate offered to settle Mr. McIntosh's claim for accident benefits and sent him a Full and Final Release for this purpose. Mr. Morgan testified that Allstate knew Mr. McIntosh had been off of work for two weeks following the accident and that he needed some housekeeping. Mr. Morgan said that, based on this information, a small amount was involved and that they could, therefore, discuss a settlement. Mr. McIntosh testified that Mr. Potts advised him to contact Ms. Yeung in Toronto regarding the settlement and that he left a message for her, but could not contact her. Mr. McIntosh did not sign the release and did nothing further in response to Allstate's offer.

In September 2000, Mr. Potts wrote to Mr. McIntosh, stating that he understood that Mr. McIntosh may still be suffering from his accident-related injuries. Mr. Potts stated that "[w]e require the Accident Benefit Application be completed and returned to our office as soon as possible" and that "we would also request that you contact the Adjuster to discuss the current status of your recovery and your intentions on making Accident Benefit claims." Mr. McIntosh testified that he did not recall seeing this letter.

Allstate's records show that it closed Mr. McIntosh's file on January 31, 2001. Mr. McIntosh testified that, in May 2001, he was the victim of an assault, leading to a brief hospitalization. He testified that he has had memory and other problems since the assault. In November 2002, Mr. McIntosh's family physician, Dr. Manwel Bedessee, reported that Mr. McIntosh had ongoing pain arising from the right and left fractures of the mandible and that, as a result of the assault, he had post-traumatic stress disorder and chronic pain syndrome. In June 2002, Dr. Bedessee reported that Mr. McIntosh was a "simple and honest person" who was "just below average intelligence" and who had "difficulty remembering in detail, his past activities, but generally speaking, he remembers some events of his past, but not in detail."

In late 2001 or early 2002, Mr. McIntosh retained Mr. Grossman, who obtained a new Application form and who completed and returned the form to Allstate on January 30, 2002, along with an Employer's Confirmation of Income form, an Activities of Daily Life form and a Permission to Disclose Health Information form.

The extent of Allstate's knowledge of Mr. McIntosh's claim

In cross-examination, Mr. Morgan was asked a number of questions about the extent of Allstate's knowledge of Mr. McIntosh's claim, despite the fact that Allstate maintained that he had not submitted a completed Application for Accident Benefits within the initial 30-day period. Mr. Grossman took Mr. Morgan through the Application form that had been sent to Mr. McIntosh.

Mr. Morgan testified that Allstate knew Mr. McIntosh's claim number and policy number. Mr. Morgan said that, based on the May 2, 2000 entry in Allstate's diary, the adjuster would have asked Mr. Mcintosh various questions regarding his insurance coverage, the details of the accident, the extent of any property damage, the identity of the parties involved in the accident, the nature of any injuries Mr. Mcintosh suffered and the details of his employment, if any.

Regarding Part 1 of the Application, Mr. Morgan stated that Allstate knew Mr. Mcintosh's name, address, phone number, date of birth and wife's name. Regarding Part 2 of the Application, Mr. Morgan testified that Allstate did not know whether Mr. Mcintosh was represented, but that he did not need to have a representative.

Regarding Part 3, Mr. Morgan said that, for some time, Allstate did not know the details of the accident, but that they eventually learned this. He said that this was important to determining liability. He also said that, based on Allstate's diary, as of June 2, 2000, they had the information they needed to determine liability. Mr. Morgan acknowledged that Allstate had received a treatment plan, although he said that they did not know whether Mr. Mcintosh had gone to the hospital. However, Mr. Morgan acknowledged that Allstate had a detailed statement from Mr. Mcintosh, in which he said that he had gone to a walk-in clinic the day after the accident. Mr. Morgan said that Allstate did not know whether the accident was work-related or whether a workers' compensation claim had been made, which would have triggered another type of coverage.

Regarding Part 4 of the Application, Mr. Morgan said that Allstate knew the details of Mr. Mcintosh's automobile insurance and that, to his knowledge, there were no concerns in this area. Regarding Parts 5, 6, 7 and 8, Mr. Morgan testified that Allstate knew that Mr. Mcintosh was employed, that they knew where he worked and how much he earned. They also knew that he was seeking housekeeping benefits. However, Mr. Morgan said that Allstate needed the section on caregiver benefits to be filled out, that Mr. Mcintosh needed to make an election and that Allstate did not receive information on this until much later. Mr. Morgan also said that Allstate needed the section on income replacement determination fully filled out, since it was not sufficient to know that Mr. Mcintosh made $9.00 an hour in his pre-accident job.

On Part 9, Mr. Morgan stated that Allstate knew that Mr. Mcintosh had collateral benefits available to him. However, he also said that Allstate needed the specific information sought in Part 9 regarding other insurance or collateral payments. Mr. Morgan stated that Allstate did not receive any information on Part 10 regarding Mr. Mcintosh's income tax status until the completed Application was filed.

Mr. Morgan testified that, while Mr. Mcintosh's statement contains a lot of information, it was not sufficient for the purposes of the Application for Accident Benefits. Mr. Morgan said that the Application is, in essence, Mr. Mcintosh's declaration regarding the accident, as required by the Statutory Accident Benefits Schedule. Mr. Morgan noted that Allstate required Mr. Mcintosh to provide an Application signed in Part 11, but that this was not done, despite offers of assistance in the correspondence sent to Mr. Mcintosh. Mr. Morgan acknowledged that there are indications throughout the file that Mr. Mcintosh did not speak English very well, that he was hard to understand and that communication was an issue. However, Mr. Morgan stated that Allstate only received sufficient information when the completed Application was received in January 2002. Mr. Morgan noted that Allstate needed the Employer's Confirmation of income form, since Mr. Mcintosh's losing his job went to calculating his benefits. Allstate only received this form in February 2002. Similarly, Allstate only received the Activities of Daily Living form in February 2002, and this was needed to determine various items related to Mr. Mcintosh's recovery. Mr. Morgan stated that Mr. Mcintosh's reference to a group plan through his spouse was not sufficient to process his application.

Findings

On the evidence before me, i find that Mr. Mcintosh did not submit an Application for Benefits on the forms provided by Allstate until January 30, 2002. i acknowledge that Mr. Mcintosh may have suffered some cognitive difficulties since his assault in May 2001 and that this may have interfered with his testimony on returning the application forms he received from Allstate. However, while he maintained that he mailed an application form to Allstate and delivered one to Mr. Potts' office, there is no evidence that either of these was received. On the contrary, both Allstate and Mr. Potts continued to request that Mr. McIntosh submit them. I note, as well, that during his interview with Mr. Potts, which occurred only two and a half months after the accident, Mr. McIntosh stated that he had completed and sent in an application form, but he was unable to say when he had done so. I, therefore, conclude that Mr. McIntosh did not submit a completed application form to Allstate.

However, the jurisprudence is somewhat at odds as to what, precisely, an insured must submit to an insurer in order to comply with section 32(3). On the one hand, there are certain arbitration cases which suggest that an insured must return the application form sent by the insurer with sufficient information to enable the insurer to process and assess the claim. As stated in H ng et al. and Allstate Insurance Company of Canada (OIC A96-000988, March 7, 1997),

I agree that an "application for the benefits," if it is to be useful and meet the requirements of section 59, must provide sufficient particulars to reasonably assist the insurer to identify the benefits that an applicant may be entitled to. An application is not limited to a particular form. It may include additional information contained in a covering letter, and documentation enclosed or appended.

The applicant need not, at this stage, name or identify the benefit as it appears in the Schedule. It will suffice if the applicant completes the appropriate application forms. The forms do not require the applicant to choose a benefit category. However, the forms should provide the essential information required by the insurer to allow it to determine whether an applicant may be entitled to a benefit under the Schedule.

In this case the appropriate application for death benefits was completed and submitted. The Application for Death or Funeral Benefit should, as noted on the form itself, be submitted together with a completed Application for Accident Benefits form. I was not provided with any indication that this form (OCF1) had been submitted with the Application for Death or Funeral Benefit form.

For any other benefit, a completed OCF1 would be essential. In the special circumstances of a death benefit, where a special form has been approved for this type of claim, it may not be necessary for an applicant to submit the two forms together. In some cases, the information normally collected on the general form can be provided through other means. As long as the specific death benefit claim form has been submitted, the insurer can decide whether it has sufficient information for its purposes. An insurer can, however, insist that the general application form be submitted before dealing with the claim.

(emphasis added, except the word "may" in the first paragraph)

Similarly, in Lopez and Canadian General Insurance Group (FSCO 96-001035, June 20, 1997), it was stated that:

The parties agree that an application for accident benefits must be reasonably complete, and must provide sufficient information to permit the insurer to properly assess the claim. On behalf of Canadian General, Mr. Blouin submits that the second application was not reasonably complete because it was not accompanied by an Employer's Confirmation of Income form. Counsel for Mr. Lopez contends that the application contains sufficient information to enable the Insurer to properly assess Mr. Lopez' claim.

Having reviewed the contents of the application, the additional information supplied by Mr. Lopez and the conduct of Canadian General following the receipt of the second application, I find that Mr. Lopez has complied substantially with the requirements of section 59(3) of the Schedule.

As stated in several arbitration decisions, an application for accident benefits meets the requirements of the legislation if it provides sufficient particulars to reasonably assist the insurer to process the application and assess the claim fairly and expeditiously. In the circumstances of this case, I find that the second application is complete, and along with information contained in documents supplied by Mr. Lopez, provides Canadian General with sufficient information to start processing the claim and to assess the claim, despite the absence of the Employer's Confirmation of Income form. Accordingly, I find that Mr. Lopez has complied with section 59 of the Schedule.

(emphasis added)

On the other hand, in the case of Liberty Mutual Insurance Company v. The Commerce Insurance Company, [2002] I.L.R. 7366 (Ont. Sup. Ct.), which dealt with the issue of which insurer first received a "completed application" for benefits for the purposes of the priorities regulation, the Court reviewed the Commission's cases on what constitutes an "application for benefits" under the predecessor provisions to section 32(3) and held as follows:

A "completed application" is not limited to a specific form, and as long as the insured provides the essential information with sufficient particulars required by the insurer to allow it to process and assess the claim, an application for accident benefits can meet the requirements of the legislation.

In my view, section 32(3) does not require an insured to submit an application for a benefit on the application form supplied by the insurer. While the provision implies that, in the normal course of things, an insured ought to complete and return the application form provided by the insurer, it does not specifically require this. in my view, it would have been a simple matter for the Legislature to provide that an insured must submit an application for benefits within 30 days of receiving "and using" the application forms supplied by the insurer. To the extent that Liberty Mutual suggests a more liberal approach than that contained in H'ng and Lopez, I prefer to rely on the reasoning in Liberty Mutual. in my view, this approach is consistent with the absence of a specific requirement in section 32(3) that an insured submit an application for benefits on the application forms sent by the insurer. in my view, the focus of the analysis is not the form in which the information is provided, but the adequacy of that information and whether it is sufficient to allow the insurer to process and assess the claim.

As is apparent in Liberty Mutual, this approach will focus not on one or two documents, but on the totality of the parties' dealings with each other. Further, in my view, section 32(3) of the Schedule establishes a less rigorous standard than section 33(1) regarding what an insured must provide an insurer. While, as Liberty Mutual and Lopez suggest, an insured must provide sufficient information to allow the insurer to process and assess the claim, it must be understood that an insured's application is simply the beginning of the process. In this regard, I note the conclusion in Lopez to the effect that the insured had provided sufficient information to the insurer to allow it to "start processing the claim and to assess the claim" (emphasis added). In my view, section 33(1), which states that an insured must provide "any information reasonably required to assist the insurer in determining the person's entitlement to a benefit," is the more important provision in terms of facilitating an insurer's investigation and assessment of a claim.

Similarly, section 32(3), in conjunction with section 50(a), has the potential to exclude an insured from engaging the dispute resolution process at all, whereas section 33(1) can result in an insured being disentitled to benefits during the period of non-compliance. In my view, therefore, section 32(3) must be interpreted as requiring an insured to provide sufficient information to permit an insurer to commence the process of adjusting a claim.

In the present case, I find that Allstate had ample information to begin the process of adjusting Mr. Mcintosh's claim and that this material was received by July 6, 2000, within thirty days of Mr. Mcintosh receiving the application forms. Allstate had information from various sources about the nature of Mr. Mcintosh's claim. Allstate obtained information over the phone from Mr. Mcintosh concerning various details of his accident, injuries, employment and insurance coverage. Allstate obtained a signed statement and permission to disclose health information from Mr. Mcintosh, as well as a disability certificate and treatment plan from Mr. Mcintosh's family doctor. Based on this material, Allstate had much of the information requested in the Application form itself, and specifically had been provided with the essential information required by Allstate to begin to process Mr. Mcintosh's claim. Therefore, I find that Mr. Mcintosh, in accordance with section 32(3) of the Schedule, submitted an application for benefits within the prescribed time limit.

I acknowledge that Mr. Mcintosh did not provide some of the information requested in the Application form. For example, he did not indicate whether there was a workers' compensation element to the claim, he did not make an election regarding caregiver benefits and he did not provide information concerning his income tax status. in my view, however, this did not preclude Allstate from beginning the process of assessing Mr. Mcintosh's claim. On the contrary, shortly after Mr. Potts interviewed Mr. Mcintosh, Allstate offered to settle his claim. Mr. Morgan testified that since Mr. Mcintosh's claim only involved small sums, Allstate could proceed to discuss settlement. in my view, Allstate cannot maintain that it did not have enough information to assess Mr. Mcintosh's claim, but that it did have enough information to settle Mr. Mcintosh's entitlement to statutory accident benefits on a full and final basis, particularly so early in the process. While the process of settlement is, of course, a fluid one, in the context of a first-party insurance relationship in which an insurer is attempting to resolve its insured's entitlement to benefits on a global basis, I find that an insurer cannot legitimately assert that it requires more information to even consider its insured's claim. Therefore, despite the absence of some of the information requested on the Application form, I find that Allstate had sufficient information to commence the process of adjusting Mr. McIntosh's claim.

What Allstate was, in fact, saying to Mr. McIntosh was that they did not have sufficient information to determine his entitlement to benefits. However, this is the more demanding requirement under section 33(1) of the Schedule, one with less final, though still significant, consequences for non-compliance. This is precisely what was set out in the only Explanation for Benefits Payable which Allstate sent to Mr. McIntosh before closing his file in January 2001. The Explanation of Benefits Payable stated that "to date we have not received a completed application for accident benefits nor an employers form" and that "as per section 33 of the policy you have 14 days to provide us with the above information [failing which] no benefits will be made until you do comply and benefits are not retroactive." In my view, Allstate was, in essence, attempting to obtain further information to determine Mr. McIntosh's entitlement to benefits under section 33(1) of the Schedule, not to obtain the information required to commence the process of adjusting his claim. In any event, I have found that, by early July 2000, Allstate had sufficient information to begin adjusting Mr. McIntosh's claim.

Roughly a week after Allstate sent its Explanation of Benefits Payable, Mr. Potts sent Mr. McIntosh a letter stating that the Application form must be complete and that "if we do not hear from yourself within the next 30 days you will prejudice your right to make a claim." This raises two problems. The first is that it suggests something quite different from the Explanation of Benefits Payable, namely, that Mr. McIntosh has 30 days to act, as opposed to 14 days, and that Mr. McIntosh may lose his right to make a claim at all, as opposed to simply losing the right to the benefits payable during the period of non-compliance. This is confusing on its face, and would be no doubt be confusing to Mr. McIntosh, an "unsophisticated" claimant.

Related to this is the problem that at no time did Allstate properly explain to Mr. Mcintosh the consequences of failing to submit an application for benefits (whether by returning the forms provided or in some other manner). In this regard, I note the recent arbitration decision of Horvath and Allstate Insurance Company of Canada (FSCO A02-000482, June 9, 2003)², in which it was stated that:

As I understand the Smith decision, the goal of consumer protection is promoted by requiring insurers to provide "basic information" outlining the "most important points of the process" using "straightforward and clear language, directed towards an unsophisticated person." There is no doubt that the time limit imposed by section 32(3) is one of the most important points or parts of the process for claiming benefits. In my view, basic information about this time limit includes information about the potential consequences of failing to either comply with it or to provide a reasonable explanation for non-compliance. Without this information, insured persons may think that the only consequence of their own delay will be delay in receiving benefits. As I read the principles enunciated in the Smith case, section 32(2)(c) should be interpreted in a way which protects consumers by requiring insurers to inform insured persons of the far more serious potential consequences of their failure to comply with section 32(3).

Nevertheless, there is no evidence before me that, at any point prior to receiving her application forms on October 19, 2000, Allstate informed Ms. Horvath of the potential consequences of her failure to comply with section 32(3) or to provide a reasonable explanation for her non-compliance. Nor is there any evidence that Ms. Horvath was, or should have been, made aware of these consequences by someone other than Allstate. In this regard, I acknowledge that the Package supplied to Ms. Horvath by Allstate also failed to inform her of the potential consequences of non-compliance with section 32(2).

Accordingly, I find that Allstate did not discharge its obligation under section 32(2)(c) to inform Ms. Horvath of the potential consequences of her failure to comply with the time limit imposed by section 32(3) or to provide a reasonable explanation for non-compliance. I conclude that Allstate is not, therefore, entitled to rely upon that time limit to defeat Ms. Horvath's claims for statutory accident benefits.

(emphasis added)

Similarly, I find that Allstate failed to discharge its obligation under section 32(2)(c) of the Schedule to inform Mr. McIntosh of the potential consequences of failing to comply with the time limit imposed under section 32(3) or of failing to provide a reasonable explanation for non-compliance. This is particularly the case in light of the two inconsistent, if not contradictory, documents sent out by Allstate and Mr. Potts in late June 2000. I, therefore, find that Allstate is not entitled to rely on section 32(3) to bar Mr. McIntosh from proceeding to arbitration.

EXPENSES:

The parties did not make submissions on the issue of expenses. in my view, this matter is more appropriately addressed at the end of the day by the Arbitrator presiding at the main hearing.

April 23, 2004

Eban Bayefsky Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 58

FSCO A02-001277

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BASIL MCINTOSH

Applicant

and

ALLSTATE 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:

Mr. Mcintosh may proceed with his arbitration.