Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 26

FSCO A05-000493

BETWEEN:

JASMIN THEVASAGAYAM

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

William J. Renahan

Heard:

October 31, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David S. Wilson for Mrs. Thevasagayam

Lorraine Takacs for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

The Applicant, Jasmin Thevasagayam, was injured in a motor vehicle accident on April 24, 2004. She applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc., payable under the Schedule.¹ Security terminated weekly income replacement benefits on May 16, 2005. Mrs. Thevasagayam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

After I opened this hearing, the parties advised me that they had resolved all substantive issues in dispute. They did not agree on the form of order to dispose of this Application for Arbitration. I made two rulings and advised the parties that I would provide written reasons.

Form of Order:

Ms. Takacs introduced a letter in which Security agreed to reinstate and pay income replacement benefits to Mrs. Thevasagayam subject to Security's rights to administer the claim under the provisions of the Schedule. She argued that since nothing was in dispute, Security was entitled to an order dismissing the Application for Arbitration.

Mr. Wilson argued that Security had conceded entitlement and that therefore Mrs. Thevasagayam was entitled to an order that she was entitled to income replacement benefits.

Normally, the parties agree on how to dispose of the Application for Arbitration when they resolve the substantive issues, and, normally, that agreement includes a request for an order dismissing the arbitration. However, the parties are free to negotiate a request for another order.

An agreement to pay benefits is not the same as an order to pay benefits. Under the Schedule, the parties have different rights under an agreement and order. Particularly, where the Insurer agrees to pay weekly benefits, the Insurer has certain rights to terminate those benefits. Where the Insurer is ordered to pay weekly benefits, its rights to terminate those benefits are more restricted.

Here, the parties have not agreed on the order disposing of the arbitration. The Applicant has asked for an order that she is entitled to income replacement benefits and housekeeping expenses and she is entitled to a decision on whether she is entitled to that order.

At the resumption of the hearing, I will consider Security's agreement to pay weekly benefits as evidence on the issue of entitlement. I invite the parties to provide me with authority as to what weight I should attach to the agreement as an admission against self-interest. If Security intends to provide evidence as to why it entered the agreement, I invite the parties to make submissions on the admissibility of any such evidence.

The hearing is adjourned to March 13 and 14 and April 18 and 19, 2006.

Non-production of documents:

Mr. Wilson complained that Security had not complied with its agreement to produce certain documents at least 90 days before the hearing. I ruled that since the hearing was adjourned for more than 90 days, the issue was moot as Security had time to satisfy any undertaking it had made.

Result:

The hearing concerning whether Mrs. Thevasagayam is entitled to income replacement benefits after May 16, 2005 and housekeeping expenses after March 4, 2005 is adjourned to March 13 and 14 and April 18 and 19, 2006.

February 14, 2006

William J. Renahan Arbitrator

Date