FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2005 ONFSCDRS 43
FSCO A04-000532
BETWEEN:
KINGSLEY AGYEM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
October 12, 13 and 14, 2004, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received up to March 16, 2005.
Appearances:
Kathryn McRae Hill for Mr. Agyem
Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Kingsley Agyem, was injured in a motor vehicle accident on March 23, 2000. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm refused to pay housekeeping expenses and certain claims for medical and rehabilitation treatment. The parties were unable to resolve their disputes through mediation, and Mr. Agyem 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 in this hearing are:
Is Mr. Agyem entitled to payment for chiropractic, massage and physiotherapy services provided by Al-Ver Rehab Centre Inc. pursuant to section 14 of the Schedule?
Is Mr. Agyem entitled to payment for housekeeping services provided by Abera Agyapongmoa from April 1, 2000 to July 31, 2000 pursuant to section 22 of the Schedule?
Is Mr. Agyem entitled to a special award pursuant to section 282(10) of the Insurance Act?
Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?
Result:
The hearing is adjourned to be heard by another arbitrator.
I remain seized on the issue of entitlement to and amount of expenses of the hearing which I heard.
EVIDENCE AND ANALYSIS:
After the conclusion of the hearing, and during my deliberations, I considered the issue of who was entitled to expenses of the arbitration proceeding. A relevant issue was an adjournment request which was denied prior to the hearing by another arbitrator. I read the correspondence the parties had filed on that adjournment request. That correspondence included a letter in which one representative quoted a settlement offer made by the other representative.
I invited the parties to make written submissions on whether I should withdraw from this case on the grounds that my knowledge of this settlement offer resulted in a reasonable apprehension of bias. Mr. Schrieder made written submissions in a letter dated January 26, 2005, which I did not receive until March 16, 2005. Ms. McRae Hill did not make any submissions.
In his reporting letter following the pre-hearing of this case, the arbitrator wrote:
A party should not advise the hearing arbitrator of any offer to settle. If a party advises the hearing arbitrator of any offer to settle, the arbitrator may terminate the hearing with serious cost consequences to the party who communicated the existence of the offer to the arbitrator.
Parties are encouraged to resolve disputes on their own. Parties must feel secure that any settlement offer they make will not be used against them and will not be disclosed to the decision maker.
I will not ask the aggrieved party whether he/it wishes to waive his/its right to privilege. I will not go into detail here, because this matter will proceed before another arbitrator.
In the circumstances of this case, I will not issue a decision where it might appear to one party that the process was unfair because my decision was influenced by a confidential settlement offer disclosed by the other party. I have sealed all correspondence dealing with the adjournment request, the settlement offer and submissions on the issue of expenses, and adjourn the hearing to be heard by another arbitrator. The parties may contact the case worker to arrange new hearing dates.
EXPENSES:
I remain seized on the issue of entitlement to and amount of expenses of the arbitration hearing which I will deal with after a decision is issued by another arbitrator on the merits.
April 5, 2005
William J. Renahan
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 43
FSCO A04-000532
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KINGSLEY AGYEM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The hearing is adjourned to a date to be arranged by the Commission.
I will determine the issue of entitlement to and amount of expenses of the hearing I heard after another arbitrator issues a decision on the merits of this case.
April 5, 2005
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 197, 1996, Ontario Regulation 403/96, as amended.