Neutral Citation: 2004 ONFSCDRS 83

FSCO A04-000102

BETWEEN:

DAVID GRUNBERG

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

David Muir

Heard:

May 10, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Christopher D. Finlay for Mr. Grunberg

Darrell March for Wawanesa Mutual Insurance Company

The Applicant, David Grunberg, was injured in a motor vehicle accident on July 3, 1991. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated weekly income benefits effective September 25, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Grunberg applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Grunberg by letter dated March 23, 2004 has brought a motion, pursuant to Rule 67 of the Dispute Resolution Practice Code - Third Edition, for interim benefits to be paid to him pending the resolution of his dispute with Wawanesa. Joined with the request for interim benefits was a motion seeking reinstatement of income replacement benefits based on an alleged failure on Wawanesa's part in complying with the termination provisions of the Schedule. In particular Mr. Grunberg alleged a violation of section 37 of the Schedule in that Mr. Grunberg was not informed of his right to an assessment by a designated assessment centre (DAC) when the benefits were terminated, or that he had the right to dispute the termination contrary to section 49. Wawanesa opposed both bases for relief in the most strenuous of terms. Just prior to the motion being heard, Mr. Grunberg withdrew his demand for interim benefits.

The issue raised in this motion requires the consideration of three different regimes of statutory accident benefits. For ease of reference I will refer to these succeeding regulatory schemes by their commonly used designations: Ontario Regulation 672/90 will be referred to as Bill 68; Ontario Regulation 776/93 as Bill 164; and Ontario Regulation 406/96 as Bill 59.

Preliminary Objection

Wawanesa objected to the motion proceeding primarily because of what it claimed was a failure on the part of Mr. Grunberg to comply with the provisions of Rule 67.3 of the Dispute Resolution Practice Code.

Rule 67.3 provides as follows:

A party making such a request must, in writing:

(a) describe the order being sought, the grounds for the order, and provide any documentation to be relied on;

(b) set out the time, date and manner in which the party seeks to have the motion heard; and

After hearing submissions, I ruled that there had been substantial compliance with these provisions such that there was no appreciable prejudice to Wawanesa in the manner in which this motion was brought on, although there were more than a few shortcomings on Mr. Grunberg's part as well as the Commission in the manner in which this matter has been dealt with.

In particular, I note that the letter of Mr. Edson dated March 23, 2004 sets out, somewhat inelegantly, the issue for determination and the basis for it. Although Wawanesa claims not to know what the issue is, I also note that its materials filed in response to Mr. Grunberg's motion indicate a complete understanding of the issues raised in the motion.

Accordingly, I held that the motion would proceed.

At the conclusion of the submissions of Mr. Grunberg, a further ground for the motion was raised based on the decision of the Supreme Court of Canada in the case of Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] S.C.J. No. 34. Wawanesa objected to this new argument being raised without any notice. I agreed and accordingly will confine this determination to the grounds raised in Mr. Edson's letter as set out below.

Because of the somewhat unusual manner in which this motion was brought on and to ensure that Wawanesa had a fair opportunity to respond to the arguments made, I allowed Wawanesa a further period of time to make written submissions on an argument made by Mr. Grunberg which drew on constitutional principles and as well as to respond to the many cases filed by Mr. Grunberg on the issue of remedy.

The issue on this motion is:

Is Mr. Grunberg entitled to the reinstatement of weekly income replacement benefits because Wawanesa improperly terminated those benefits. In particular, Wawanesa did not comply with section 37(3)(b) and section 49 of the Statutory Accident Benefits Schedule -Accidents on or After November 1, 1996.

Result:

Mr. Grunberg is not entitled to the reinstatement of weekly income replacement benefits because Wawanesa improperly terminated those benefits.
The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

Mr. Grunberg submits that Wawanesa did not comply with section 37(3) of the Statutory Accident Benefits Schedule (Bill 59) in that it failed to advise Mr. Grunberg of his right to an assessment at a designated assessment centre and that it did not advise him of his right to dispute the termination as required by section 49 of the same Schedule. Accordingly, Mr. Grunberg submits, the termination of benefits was improper and he is entitled to a reinstatement of the benefits pending a proper termination in accordance with the requirements of sections 37 and 49.

Wawanesa's position is that it followed the proper procedure for terminating the benefits it was paying to Mr. Grunberg. It submitted that it was not required to follow the procedures set out in section 37 of Bill 59 because the provisions governing the adjustment of Mr. Grunberg's claims are not those of the current Bill 59, but the provisions of the Schedule in existence at the time of the motor vehicle accident giving rise to Mr. Grunberg's injuries and pursuant to which benefits were paid to him for roughly 12 years.

I agree with Wawanesa's view of the matter. The essential question being which of Bill 59 or Bill 68 governs the claims of Mr. Grunberg. I find that the regulation under which Mr. Grunberg is (or was) paid benefits provides the procedure for the resolution of disputes regarding those benefits. The Schedules, Bill 68, Bill 164 and Bill 59, are in the nature of a statutory contract with rates set, in part, in relation to the content, substantive and procedural of the Schedules. In my view, these Schedules, as each have been amended from time to time, are more or less complete codes governing the adjusting of claims arising in accordance with their terms.

Moreover, section 3 of Bill 59 is clear and unambiguous. It provides that its provisions apply to contracts of insurance in respect of accidents occurring on or after November 1, 1996. Equally, Bill 68, as amended, provides in section 4 that it applies to liability policy in respect of accidents occurring before January 1, 1994. It is significant that the language of this latter section was amended by Ontario Regulation 781/94 to clarify that with the introduction of a new Schedule (Bill 164), claims arising out of accidents occurring under Bill 68 would continue to be dealt with under the terms of that Schedule.

Mr. Grunberg was injured in an automobile accident in 1991. He was paid benefits to August 2003. The claims arise under Bill 68 and must be determined in accordance with Bill 68 procedures. Bill 68 contains no provision for assessments by Designated Assessment Centres and hence no requirement that an applicant be informed of their right to such an assessment. Equally, Bill 68 did not require that an insurer inform an applicant of their right to dispute a termination of benefits as is required for claims under Bill 59 in section 49 of that Schedule.

Mr. Grunberg relies on a decision of Director's Delegate Draper in GAN Canada Insurance Company and Lehman,² which considers an issue of retrospective application of an amendment to Bill 164. The parties made extensive submissions about the impact of this decision to these circumstances. However, to my mind this decision is clearly distinguishable in that it considers the effect of the timing of an amendment to one scheme of accident benefits, Bill 164, and not whether or not the procedural requirements of one statutory scheme are applicable to another. I agree with Mr. Grunberg that the decision does not stand for the proposition that "new regulations are only effective within regimes and not between" them. Equally, I find that it does not stand for the proposition that a new regulation is effective between two or more legal regimes. In short, I find that the reasoning in Lehman, supra, is not applicable to these circumstances.

Mr. Grunberg, in making the argument about retrospective (or prospective) application of a statutory provision, relied upon section 15 of the Canadian Charter of Rights and Freedoms as supporting the interpretation of the effect of the passage of these successive statutory accident benefit schemes.³ The rhetorical question was asked, "Why should Mr. Grunberg have fewer rights than another applicant whose benefits were stopped at the same time, but whose accident occurred on or after November 1, 1996?" Mr. Grunberg was clear that he was not challenging the provisions of either Bill 59 or Bill 68 on Charter grounds, hence Notice to the Attorneys General were not required.

Nonetheless, Wawanesa objected to this argument being made without notice. Given the nature of the argument I allowed Mr. Grunberg to make the submission and afforded Wawanesa an opportunity to respond to this argument in writing. In any event, having found that the legal rules governing the termination of the benefits claimed by Mr. Grunberg are those of Bill 68 and not Bill 59, the section 15 argument in aid of his primary submission does not advance the argument unless section 3 of Bill 59 is read down or out of the Schedule. That was not the position of Mr. Grunberg and would have required Notice of Constitutional Question being made to the Attorneys General for Canada and Ontario.

Having found that Wawanesa was not required to follow the procedures in section 37 or section 49 of Bill 59 in terminating the benefits of Mr. Grunberg, there is no need to go further and consider the appropriate remedy for such a failure.

EXPENSES:

Wawanesa seeks its expenses of the motion on a substantial indemnity basis. The authority to award expenses flows from section 282(11) of the Insurance Act and Regulation 664, R.R.O. 1990, as amended. There is no authority to make an award of expenses on a substantial indemnity basis. Mr. Grunberg made no submissions on expenses.

If the parties cannot agree on the expenses of this motion, they may raise the matter in accordance with the provisions of the Dispute Resolution Practice Code.

June 3, 2004

David Muir Arbitrator

Date