Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 81
FSCO A95–000168
BETWEEN:
BRONWEN NAVAGE
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
David Muir
Heard:
By telephone conference call on June 14, 2005.
Appearances:
David S. Wilson for Ms. Navage
Robert Barrett for Pilot Insurance Company
Issues:
The Applicant, Bronwen Navage, was injured in a motor vehicle accident on February 8, 1994 and February 17, 1996. She applied for and received statutory accident benefits from Pilot Insurance Company (“Pilot”), payable under the Schedule.1 Pilot terminated weekly income replacement benefits on March 14, 1995. Ms. Navage has applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The background to this current dispute is somewhat complicated but, for purposes of this decision, can be succinctly stated as follows. Ms. Navage was involved in car accidents in 1994 and 1996. She submitted applications for mediation of disputes to claims arising out of both accidents. On the eve of an arbitration hearing the parties entered into a purported full and final settlement of all their disputes. As a result of a series of court proceedings and my decision dated April 7, 2005, the parties find themselves again on the eve of an arbitration of the issues Ms. Navage raised in the two applications for mediation. The question remains what statutory accident benefit claims can now proceed to arbitration.
In my letter of June 6, 2005, I set out my characterization of the preliminary issue in more precise terms as follows:
What statutory accident benefit claims are captured in the description of issues in dispute contained in the applications for mediation of claims arising from the February 1994 and February 1996 accidents, and, as a consequence, included in the issues in dispute that may proceed to an arbitration now scheduled to begin on June 20, 2005?
Result:
Ms. Navage may proceed to arbitration of the following issues:
Is Ms. Navage entitled to receive a weekly income replacement benefit from March 15, 1995, and ongoing pursuant to section 7 of the Schedule on the basis that she suffers a substantial inability to perform the essential tasks of her employment?
What is the amount of weekly income replacement benefit that Ms. Navage is entitled to receive pursuant to section 10 of the Schedule?
Is Ms. Navage entitled to weekly loss of earning capacity benefits (LECBs) pursuant to section 20 of the Schedule?
Is Ms. Navage entitled to supplementary medical expenses claimed pursuant to paragraph 36(1) of the Schedule?
Is Ms. Navage entitled to rehabilitation benefits claimed pursuant to paragraph 40(5) of the Schedule?
Is Pilot liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, as amended because it unreasonably withheld or delayed payments to Ms. Navage?
Is Pilot liable to pay Ms. Navage’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Navage liable to pay Pilot’s expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Ms. Navage entitled to interest for the overdue payment of benefits pursuant to section 68 of the Schedule?
ANALYSIS:
No evidence was lead in respect of these issues. Both applications for mediation and subsequent reports of mediator were referred to. The outcome of this dispute turns on those documents and the relevant law.
Ms. Navage relied upon two decisions of the Superior Court. In both Woodman v. State Farm Mutual Automobile Insurance Co. [1998] O.J. No. 521 and Pilon v. Zurich Insurance Canada [1998] O.J. No. 333, wherein issues that were not expressly addressed in mediation were added or consolidated with other issues already before the court. In relying on these cases Ms. Navage expressly acknowledged that adjudicators at FSCO have taken a more restrictive view of what issues not explicitly enumerated in the mediation process can subsequently be found to not require mediation. Pilot provided no authority for its positions in respect of the various items in dispute.
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, “1994 Schedule” refers to the original O.R. 776/93, and “1995 Schedule” refers to O.R. 776/93 as amended.