Neutral Citation: 2005 ONFSCDRS 155

FSCO A04-000210

BETWEEN:

AMINA SALAH Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

MOTION

Before: Joyce Miller

Heard: October 28, 2005, by teleconference. Written submissions were received on October 28, 2005.

Appearances: David Carranza for Ms. Salah Paul Giuliano for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Amina Salah, was injured in a motor vehicle accident on July 23, 2002. Her application for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule, was denied on August 18, 2003.¹ The parties were unable to resolve their disputes through mediation, and Ms. Salah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues are:

Should the arbitration hearing commencing on November 7, 2005 be adjourned so that Ms. Salah can attend for an Examination Under Oath pursuant to section 33(1.1) of the Schedule?
Is Ms. Salah entitled to her expenses pursuant to section 282(11) of the Insurance Act with respect to the preparations for the Motion brought by State Farm regarding its request that Ms. Salah attend for an Examination Under Oath pursuant to section 33(1.1) of the Schedule?

Result:

The adjournment request is denied.
The issue of expenses is left to the hearing arbitrator.

On October 28, 2005, I provided the parties with a brief oral decision with full reasons to follow. The following are my reasons:

BACKGROUND AND SUBMISSIONS:

By letter dated October 6, 2005, the Insurer wrote to FSCO and requested a resumption of the pre-hearing of December 22, 2004, "so that an order can be made pursuant to section 33 of the Statutory Accident Benefits Schedule." Through the case administrator I advised the Insurer that a motion should be brought to hear this issue. On October 7, 2005, the Insurer formally requested a motion hearing date. The parties agreed that a telephone hearing would be held on October 28, 2005. Prior to the Motion hearing, I received written submissions from both parties regarding the issue of whether an order should be made to compel the Applicant to attend an Examination Under Oath pursuant to section 33.

On October 28, 2005, the Insurer advised in writing that it was not proceeding with the Motion hearing - instead it was asking for an adjournment of the arbitration hearing. The Applicant, however, was objecting to the adjournment of the hearing.

The Insurer submits that it was advised on October 27, 2005 that the Applicant was no longer objecting to attending the Examination Under Oath and accordingly, it is requesting that the arbitration hearing be adjourned so that the Examination Under Oath can be completed.

The Applicant objects to the adjournment on the basis that the Insurer has not as yet provided her with proper notice for the Examination Under Oath and the Insurer's request for the examination is too close to the hearing date.

Although the Insurer concedes it did not provide the Applicant with a proper notice for the Examination Under Oath as required by subsection 33(1.3) of the Schedule, it submits that this was "as a result of the applicant's actions and not of its own." The Insurer submits that the Applicant had ample notice of its request for an Examination Under Oath.

The Insurer submits that by letters to the Applicant's representative, Mr. David Carranza, dated July 6, 2005 and July 20, 2005, it had requested an Examination Under Oath of the Applicant pursuant to section 33(1.1) of the Schedule. The Insurer submits that by letter dated August 11, 2005 Mr. Carranza advised that he did not believe that an Examination Under Oath was required. The Insurer again wrote to Mr. Carranza on August 18, 2005 requesting the Examination Under Oath and stating that if the Applicant refused to attend, it would ask for a resumption of the pre-hearing.

The Insurer submits that if the Applicant had agreed to go to an Examination Under Oath in July, it would not have required an adjournment of the hearing. The Insurer submits the purpose of the Examination Under Oath is to find out the reasons why the Applicant waited until August 2003 to apply for accident benefits when the accident happened in December 2002. The Insurer submits its request for an Examination Under Oath would streamline the arbitration hearing if it were to get this information before the hearing.

DECISION

It is very clear that the issue of the lateness of the Applicant's filing for accident benefits is not new information. The Insurer has known about this issue since its denial of the Applicant's claim for benefits in August 2003. The power to require an Examination Under Oath under section 33.1 has existed since October 2003. The Insurer had ample time to make its request to deal with this issue. I further note that although the Insurer advised the Applicant by letter on August 18, 2005 that if she refused to attend the Examination Under Oath it would ask for a resumption of the pre-hearing, it did not make this request until October 6, 2005 - one month before the hearing date.

The Applicant's concession that she will now attend the Examination Under Oath if proper notice is given is an odd concession, especially in the light of the fact that she is opposing the adjournment based on the lateness of the Insurer's request. Nevertheless, I agree with her objection to adjourning the arbitration hearing because of the lateness of the Insurer's request for the Examination Under Oath. The hearing is to commence in a week's time. Whatever information the Insurer is hoping to get under the Examination Under Oath can be just as easily be obtained under oath at the arbitration hearing.

In addition, even if the Insurer's request for an Examination was made in a timely manner, I agree with the Applicant's written submission that I do not have the jurisdiction to adjourn an arbitration hearing where an insured has failed to attend an Examination Under Oath.

In the case of Balanki and Zurich Insurance Company (Commercial Business), (FSCO A04-002286, April 11, 2005), Arbitrator Muir, in denying the insurer's request for a stay of the arbitration because the insured did not attend an Examination Under Oath, stated that "where a legislative provision provides for an express remedy, a statutory decision maker has limited jurisdiction to fashion other remedies." I agree.

Section 33 of the Schedule provides an express remedy for an insured's failure to comply with his or her obligation to attend an Examination Under Oath. Pursuant to subsection 33(2), the insured faces a suspension of benefits² and pursuant to subsection 33(4), if non-compliance is unreasonable, the loss of those benefits for the period of non-compliance.³ Accordingly, I find that I do not have the jurisdiction to grant an adjournment of an arbitration hearing as a remedy where an insured has failed to attend an Examination Under Oath.

Accordingly, for all these reasons State Farm's request for an adjournment is denied.

EXPENSES:

The Applicant's request for her expenses for the preparation of the Motion brought by the Insurer is left to the hearing arbitrator.

November 2, 2005

Joyce Miller Arbitrator

Date

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