Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 188
FSCO A04-002455
BETWEEN:
CLARENCE LARRY FISHER
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
MOTION DECISION
Before: John Wilson
Heard: Written submissions were received on October 16, 2006.
Appearances:
Michael Bennett for Mr. Fisher
Ian D. Kirby for Allstate Insurance Company of Canada
Issues:
The Applicant, Clarence Larry Fisher, was severely injured in a motor vehicle accident on August 31, 2002. He applied for and received certain statutory accident benefits from Allstate Insurance Company of Canada ("Allstate").
As part of his claim for further accident benefits, Mr. Fisher's litigation guardian requested that he be assessed for catastrophic impairment in accordance with section 40 of the Schedule.
The Insurer arranged for an assessment by a DAC centre in London Ontario, which took place. However, in a decision dated July 19, 2006 I found, the assessment to have been not in compliance with the norms set out in the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines. I found, as well, that Mr. Fisher was entitled to a proper CAT DAC assessment that respected the standards set for such examinations. I left it to Allstate to make the necessary arrangements for the DAC. To date no arrangements have been finalized. Now the question that bedevils the parties is just where this assessment should take place.
The issue is:
- Where is the new CAT DAC to take place?
Result:
- The CAT DAC assessment shall proceed as soon as possible at the Kaplan & Kaplan CAT DAC assessment centre at 1612 Main Street West, in Hamilton Ontario.
EVIDENCE AND ANALYSIS:
I noted in my earlier decision that "Since the Insurer is charged with the responsibility to make arrangements for all DAC assessments, the formal order will be directed at the Insurer to make the appropriate arrangements as indicated above."
It may be that the Insurer has refused to carry out my order, or it may be simply that there has been a further significant unresolved dispute about where the assessment should take place. In the absence of any action by the Insurer or any agreement between the parties, no assessment has been undertaken. I will now deal with this further problem, arising from my earlier order. This is not an academic dispute. Only the Insurer can set up a DAC assessment. To date it has not. Mr. Fisher's ongoing claim is dependant upon the finding of such a catastrophic DAC assessment. While there may be some dispute as to his entitlement to a catastrophic designation, the details of the claim on record to date make it clear that Mr. Fisher's safety and well-being may be in question if the further services arising out of a catastrophic designation are not provided.
Although the details of how a particular DAC assessor is selected have changed over the years, the underlying principle has always been that parties are to be assessed at the qualified DAC that is the nearest to their residence.
A further complication in this matter is that following the abolition of the DAC system, the number of DAC's qualified to perform catastrophic assessments has diminished. It is agreed that there is no appropriate assessment facility in Thunder Bay or indeed anywhere in Northern Ontario.
If the assessment in this matter was not already itself the subject of ongoing arbitration, Mr. Bennett, counsel for Mr. Fisher, quite rightly points out that the task of choosing the appropriate assessment facility would have been performed by an automated programme put in place by FSCO. The process is set out in a Superintendent's guideline, issued by FSCO. Needless to say, that facility has not been accessed in this dispute and the Superintendent has not selected a further DAC.
While Mr. Bennett has pointed out that the guidelines provide for a plan of action on the part of the Insurer with regard to the referral for DAC selection, I am not convinced that resort to that process is either necessary or appropriate at this late stage in the arbitration.1 Indeed, a DAC assessor had already been selected. Unfortunately its assessment was bungled and Mr. Fisher now has the right to a new assessment, in accordance with my order of July 19, 2006.
Whether the right to a DAC assessment is a procedural or a substantive right, it is clear in this case that Mr. Fisher has and continues to have such a right. The assessment must be held somewhere whether in Mississauga, as the Insurer wishes, or Hamilton as is the choice of Mr. Fisher.
Both sides have submitted detailed Mapquest print-outs outlining the distances involved in reaching the proposed assessment sites. Both sides agree that according to Mapquest, the Hamilton site is closer to Thunder Bay. I accept that Mapquest can be seen as neutral and has no apparent interest in this matter and that the distances shown in that context appear to be an acceptable means of defining the distances between cities in Ontario for both counsel for the Insured and the Insurer.
Allstate argues that given the distance from Thunder Bay to either assessment location, Mr. Fisher will be flying to Toronto from Thunder Bay. Mississauga is closer to the Toronto Airport than Hamilton, so the elapsed distance and time of travel will be less to the Mississauga facility than for Hamilton.
Does it really matter? While I have no evidence of the competency of either establishment, both are listed as approved sites for CAT DACs. Significantly, the London DAC which provided the earlier impeached assessment no longer is listed. Although I can infer from the positions taken by each party that there is a presumed strategic advantage/disadvantage for each assessment group, I have no evidence that either will perform an incompetent or unfair assessment.
That said, however, unless there are to be two assessments one must be preferred over the other. Mr. Bennett's submission indicates that FSCO's automatic system for choosing DACs works simply on a distance measurement. This is consistent with the information on DACs published by the Commission itself. General Guideline -5 states that:
A referral to a DAC must be made to the one closest to the claimant's residence that is qualified to conduct the requested DAC.
The guideline further clarifies that "NEAREST refers to the distance from a DAC facility to the claimant's residence." This is the governing principle for the choice of DAC's, whether done electronically or otherwise. Neither time of travel or the most practical routes are necessarily relevant.
Thus, the distance from Thunder Bay to Hamilton being acknowledged by both parties as the lesser, Hamilton should be chosen in the absence of reasons suggesting another more appropriate site. Given the default of distance as the governing factor in choice, the burden for arguing that the choice should be other than the default would lie with the proposer of the alternative site, in this case, the Insurer.
Based on the criteria that the legislation specifically identifies, expertise and conflict of interest, I have no information that the Hamilton group is in any way disqualified or will not perform the assessment within the norms set out in the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines.
While Allstate has suggested that travel time to Mississauga may be marginally less, and that the convenience factor would favour assessors from Mississauga rather than Hamilton should they be called to testify at an arbitration, I do not find such marginal differences convincing. Certainly they are insufficient to displace the presumptive choice of Hamilton.
Consequently, I order that the DAC assessment proceed as soon as possible at the Kaplan & Kaplan CAT DAC Assessment Centre at 1612 Main Street West, in Hamilton Ontario.
EXPENSES:
While I view the Insurer's insistence on deviating from the general scheme for the choice of assessors as unfounded and, indeed, troubling, I leave it to the parties to agree on any further expenses of this motion. In the event that the parties are unable to agree on the disposition of expenses, the parties may make brief submissions as to expenses in this matter.
November 30, 2006
John Wilson
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 188
FSCO A04-002455
BETWEEN:
CLARENCE LARRY FISHER
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Allstate shall forthwith make the necessary arrangements for a CAT DAC assessment of Mr. Larry Fisher to proceed as soon as possible at the Kaplan & Kaplan CAT DAC assessment centre at 1612 Main Street West, in Hamilton Ontario.
November 30, 2006
John Wilson
Arbitrator
Date
Footnotes
- The protocol for the choice of DAC's is set out in a series of Superintendent's Guidelines. However, section 268.3 (20) of the Insurance Act states: "Subject to section 268.2, a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule. 1993, c. 10, s. 27". While the guidelines must be considered, and applied as appropriate, they are not ultimately binding on an arbitrator.