Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 143 FSCO A04-001585

BETWEEN:

SASE NARINE BASDEO Applicant

and

CITADEL GENERAL ASSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Fred Sampliner

Heard: August 10, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Patrick DaSilva for Mr. Basdeo Claude Blouin for Citadel General Assurance Company

Issues:

The Applicant, Mr. Sase Narine Basdeo, was injured in a motor vehicle accident on October 7, 2003. He claimed accident benefits under the Schedule¹ from Citadel General Assurance Company (Citadel) pending the determination of his eligibility for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. Citadel paid some and refused other claims by Mr. Basdeo during the period before he was granted workers' compensation benefits. He applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended, to determine his eligibility for housekeeping and attendant care claims.

The preliminary issues are:

1. Is Mr. Basdeo entitled to housekeeping expenses under section 22 of the Schedule and his attendant care claims under section 16 of the Schedule?

2. Is Mr. Basdeo or Citadel entitled to recover their expenses of the arbitration under subsection 282(11) of the Insurance Act?

Result:

1. Mr. Basdeo is precluded from receiving all further accident benefits pursuant to subsection 59(1) of the Schedule.

2. Mr. Basdeo is entitled to his expenses of the arbitration, fixed at $169.

EVIDENCE AND ANALYSIS:

The accident benefits scheme requires an insured person who is injured in a work-related motor vehicle accident that is covered by Ontario's Workplace Safety and Insurance Act to first apply to the Workplace Safety and Insurance Board (the Board) for determination of eligibility.² In this case, a good deal of confusion arose about Mr. Basdeo's intention to pursue his claims with the Board over the year following the accident, and he appealed the Board's initial refusal to accept his eligibility. Mr. Basdeo also sought an order from this tribunal that his automobile insurer, Citadel, pay him accident benefits pending his request for the Board's re-determination.

On March 7, 2005, Arbitrator Muir at this tribunal decided that Citadel was required to pay Mr. Basdeo accident benefits pursuant to subsection 59(5) of the Schedule, and it subsequently paid Mr. Basdeo's income replacement benefits and medical and rehabilitation expenses in accordance with that Order. However, Citadel did not pay Mr. Basdeo the housekeeping expenses and attendant care benefits he had claimed.

On July 25, 2005, the Board reversed itself and accepted Mr. Basdeo's eligibility for workers' compensation benefits. The parties agree that the Board's decision ends Mr. Basdeo's claims for further accident benefits from Citadel after that date. This does not resolve the novel legal question posed by Mr. Basdeo of whether Citadel was required to pay all of his claims he submitted before this date.

Mr. Basdeo first argues that Arbitrator Muir ordered Citadel to pay him the requested benefits in his March 7, 2005 order. I reject this submission. The pertinent part of the Order states:

1. The Citadel is required to pay benefits to Mr. Basdeo in accordance with section 59(5) of the Schedule, pending the resolution of the dispute respecting Mr. Basdeo's entitlement to WSIB benefits.

The order does not specifically state Citadel must pay an amount or particular benefit, and there is nothing in the body of the reasons for his decision indicating he considered any evidence from either party about the substance of Mr. Basdeo's claims. It is not within my authority to interpret or correct³ or act to enforce⁴ another arbitrator's order.

Mr. Basdeo's second argument is based on interpretation of subsections 59(1) and 59(5) of the Schedule, which state:

(1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers' compensation law or plan.

(5) Despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if,

(a) the person makes an assignment to the insurer of any benefits under any workers' compensation law or plan to which he or she is or may become entitled as a result of the accident; and

(b) the administrator or board responsible for the administration of the workers' compensation law or plan approves the assignment.

(emphasis added)

He urges me to accept the underlined language as obliging his automobile insurer to pay all his accident benefits claims while he awaited determination of his eligibility for workers' compensation at the Workplace Safety and Insurance Board.⁵

The previous Schedule, known as Bill 164, guides me because it contains specific provisions to address these types of situations. The drafters used clear and unambiguous language in mandating insurers to pay specific medical and rehabilitation benefits during periods that benefits are disputed⁶:

36. (4) Subject to subsection (5), clause 39(11)(b) and subsection 39 (12), the insurer shall pay an expense under subsection (1) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act. (emphasis added)

(5) The insurer is not liable to pay more than $3,000 in respect of an expense under clause (1) (d), (e) or (f) pending the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act.

40. (7) Subject to subsection (8), clause 45 (11) (b) and subsection 45(12), the insurer shall pay an expense under subsection (5) pending resolution of a dispute relating to the expense in accordance with section 279 to 283 of the Insurance Act. (emphasis added)

(8) The insurer is not liable to pay an expense under clause (5) (c) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act unless the insurer agreed to the appointment of the case manager before the expense was incurred.

Bill 164 demonstrates through its specific amounts and types of expenses a clear intention to ensure that people who are injured in automobile accident have access to certain types of critical services.

Conversely, in the current Bill 59 regime, the phrase "shall pay full benefits" does not clearly express the same intention as "pay an expense." Every benefit category in the Schedule uses the phrase "the insurer shall pay" followed by mention of the particular benefit. The similarity of the subsection 59(5) use of the word "benefits" with the other benefit categories indicates the drafters did not intend to distinguish between them, or intended to equate the same meaning to the word "expense" in Bill 164.

Benefits under the Bill 59 regime are adjusted through the analysis of the information requested of claimants⁷, the review of professional opinions on insurer examinations⁸, followed by acceptance or denial of claims.⁹ The use of the word "benefits" signals that the drafters retained the adjusting provisions, and did not intend for insurers to automatically pay all claims as submitted while workers' compensation eligibility is being determined.¹⁰

Moreover, the result of Mr. Basdeo's interpretation would create an absurd, impractical and unintended distinction between claimants' rights awaiting workers' compensation eligibility and the rights of other claimants. An absolute obligation to pay all claims for any amount, whether properly documented or not, removes the balances between the parties' rights that are contemplated throughout the Schedule.¹¹

I rely on this practical policy reason as well as on the interpretation of the words in rejecting Mr. Basdeo's arguments and interpretation of subsection 59(5). I find that subsection 59(5) does not mandate Citadel to pay Mr. Basdeo's claims for housekeeping/home maintenance under section 22 of the Schedule or his attendant care claims under section 16 of the Schedule.

However, the Legislature's use of the words "full benefits" requires insurers to use utmost care in adjusting benefits while claimants are caught in these types of situations. I draw this conclusion from the use of the adjective "full", meaning complete or utmost.¹² The word's significance becomes apparent when compared to other provisions of the Schedule dealing with interaction to other systems.¹³ For accidents occurring outside Ontario the relevant words are¹⁴:

...the insurer shall pay, as the person may elect,

(a) benefits provided by this Regulation, other than the benefits referred to in clause (b); or

(b) benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.

(Emphasis added)

Similar to the language for claimants on social assistance it states¹⁵:

(1) The insurer shall pay benefits under this Regulation even though the insured person is entitled to, or has received, benefits under an Act administered by the Ministry of Community and Social Services for Ontario or under similar legislation in another jurisdiction. (Emphasis added)

The Legislature could have easily avoided the word "full", and used the above language again in subsection 59(5). The choice to highlight the available benefits under the Regulation with an adjective meaning "complete or utmost" indicates an intention to not only afford the complete range of benefits, but to indicate that insurers owe a duty of care to scrupulously ensure utmost access to them while the claimant awaits determination of eligibility for workers' compensation benefits. I reasonably infer that the underlying policy seeks to protect vulnerable wage earners from falling through cracks in the social safety fabric where people in these situations are often under great physical and emotional strain from their injuries and not able to independently sustain themselves and their families.

Conclusion:

While I have some sympathy for Mr. Basdeo's claim that he was in a financial predicament over the last year, he could have filed a motion requesting an order for payment of specific interim benefits.¹⁶ I find that Mr. Basdeo is not entitled to payment for housekeeping expenses under section 22 of the Schedule and attendant care expenses under section 16 of the Schedule.

Expenses:

Mr. Basdeo argues his claims are legitimate and that he should be granted his expenses of the preliminary issue hearing in accordance with the Expense Regulation.¹⁷ Citadel also requests reimbursement for its arbitration expenses, contending that Mr. Basdeo's claims are frivolous now that the Board has accepted his eligibility and the hearing was unnecessary.¹⁸ Neither party advised me of any relevant settlement offers¹⁹ or obstructionist conduct²⁰ to be considered.

Although Mr. Basdeo was unsuccessful²¹, the legal question is novel and worthy of bringing to hearing.²² I find he is entitled to his expenses in accordance with the relevant criteria.

However, I do not accept the hours Mr. Basdeo's representative submits for his work in preparation for and attendance at the July 12, 2005 hearing. His submissions were simple, not particularly helpful and his brief was not relevant to the legal issue.

I allow a total of 3 hours for file review, research and client consultation and attendance at the hearing (3 x $23/hr. = $69), and $100 for his arbitration filing fee. I find that Mr. Basdeo is entitled to $169 for reimbursement of his expenses in this preliminary issue.

October 11, 2005 Fred Sampliner Arbitrator Date

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 143 FSCO A04-001585

BETWEEN:

SASE NARINE BASDEO Applicant

and

CITADEL GENERAL ASSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Basdeo's claims for accident benefits under the Schedule are dismissed.

2. Citadel shall pay Mr. Basdeo $169 for his expenses of this arbitration.

October 11, 2005 Fred Sampliner Arbitrator Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Subsection 59(1) of the Schedule
3. 3Rule 65, Dispute Resolution Practice Code (4^th edition - Updated October 2003)
4. 4Rule 66, Dispute Resolution Practice Code (4^th edition - Updated October 2003)
5. 5The WSIB has exclusive jurisdiction to decide eligibility for workers' compensation benefits. Falahi and ING Halifax Insurance Company (FSCO A01-000103, February 5, 2002), Roblin and The Co-Operators General Insurance Company/Zurich Insurance Company (OIC A-004942, OIC A-005827, March 14, 1994)
6. 6Murray and Wawanesa Mutual Insurance Company (OIC A-003224, August 23, 1996), Argirovski and Allstate Insurance Company of Canada (FSCO A98-000816, March 14, 2000)
7. 7Section 33 of the Schedule
8. 8Section 42 of the Schedule
9. 9Section 37 of the Schedule
10. 10Subsection 37.1(13) of the Schedule does abrogate Insurer examinations under section 42 of the Schedule.
11. 11Section 42 of the Schedule-Insurer Examinations, Section 43 of the Schedule-Assessments at Designated Assessment Centres, Section 24 of the Schedule-Cost of Examinations
12. 12The Concise Oxford Dictionary (8^th ed. 1990)
13. 13Part XIII of the Schedule
14. 14Section 57(1) of the Schedule
15. 15Section 58 (1) of the Schedule
16. 16Subsection 279(4.1) of the Insurance Act and Rule 67 of the Dispute Resolution Practice Code
17. 17O. Reg. 275/03
18. 18Rule 75.2(e), Dispute Resolution Practice Code (4^th edition, October 2003)
19. 19Rule 75.2(b), Dispute Resolution Practice Code (4^th edition, October 2003)
20. 20Rule 75.2(d), Dispute Resolution Practice Code (4^th edition, October 2003)
21. 21Rule 75.2(a), Dispute Resolution Practice Code (4^th edition, October 2003)
22. 22Rule 75.2(c), Dispute Resolution Practice Code (4^th edition, October 2003)