Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 18

Variation/Revocation: P04-00037

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JULIE WILSON Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY Respondent

Before: David R. Draper

Representatives: Julie Wilson R.W. Howard Lightle for Liberty Mutual

Hearing Date: January 11, 2005

VARIATION/REVOCATION ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The application for variation/revocation is dismissed.
Julie Wilson shall pay Liberty Mutual Insurance Company expenses fixed at $300, payable forthwith.

February 15, 2005

David R. Draper Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF THE APPLICATION

This application involves Julie Wilson’s contention that she suffers from disabilities that must be accommodated by having Ms. Carolyne Champaigne act as her “facilitator” during the arbitration hearing. By letter dated February 27, 2004, the pre-hearing Arbitrator denied this request. He found that Mrs. Wilson had the mental capacity to conduct her own case, and that Ms. Champaigne’s appropriate role was as a witness. Mrs. Wilson appealed. For reasons set out in my decision dated July 2, 2004, I dismissed the appeal. Shortly before the arbitration hearing was scheduled to begin, Mrs. Wilson filed an application for variation/revocation. After hearing the parties’ submissions by telephone on November 5, 2004, the application for variation/revocation was allowed to proceed and the arbitration was postponed.

For reasons that follow, the application is dismissed.

II. ANALYSIS

Variation/revocation is a specific procedure under s. 284 of the Insurance Act. An arbitration or appeal order can be varied if:

(a) there has been a material change in the circumstances of the insured;

(b) evidence not available on the arbitration or appeal has become available; or

Variation/revocation is not a chance to reopen an unsuccessful appeal. After reviewing Mrs. Wilson’s lengthy submissions and documents, I conclude that is what she is attempting to do. While I do not question her sincerity or the obvious effort that went into her submissions, the application cannot succeed.

First, there is no suggestion that Mrs. Wilson’s circumstances have materially changed. Second, of the 13 “new” documents Mrs. Wilson presents in support of her application, only two post-date the appeal hearing – a report from Dr. Raymond Gottschaulk, dated September 22, 2004, and an EEG, dated August 29, 2004. I agree with Liberty Mutual that neither of these documents shed much, if any, light on the issues decided in the appeal. With respect to the other documents, there is no evidence they could not have been obtained for the appeal. However, even if they are considered, which I have done because Mrs. Wilson is representing herself, I am not persuaded they would have materially affected the outcome. They reinforce the conclusions I reached in the appeal, not undermine them. Finally, although Mrs. Wilson points to many alleged errors, “error” has a narrow meaning in the context of an application for variation/revocation. As an example, the order might be inconsistent with the reasons for the decision. Again, variation/revocation is not a second appeal.

For these reasons, the application is dismissed.

In her submissions, Mrs. Wilson states that she failed to raise the issue of interim benefits and further productions at the telephone conference held to determine whether the application for variation/revocation should proceed. Even if she had raised these issues, I would not have decided them. Interim benefits and productions are arbitration issues that should be raised with the pre-hearing or hearing arbitrator.

The matter should now proceed to arbitration. The hearing arbitrator is responsible for controlling the process and will make any further orders required to ensure that the parties are treated fairly.

IV. EXPENSES

Liberty Mutual was successful in this application. It asks for expenses fixed at $2,000. Although I agree that Liberty Mutual should recover some of its expenses, this amount is excessive. Liberty Mutual is only entitled to Legal Aid rates and, although the hearing took most of the morning, the issues were not difficult and Mr. Lightle’s submissions were brief. I must take into account, however, the lengthy material filed by Mrs. Wilson that had to be reviewed. Expenses are fixed at $300, payable forthwith.