Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 41

FSCO A03-001091

BETWEEN:

JULIE WILSON

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY (Formerly: Liberty Mutual Insurance Company and Liberty Insurance Company of Canada)

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS AS A CONDITION OF ADJOURNMENT

Before:

John Wilson

Heard:

By telephone conference calls on January 19 and 26, 2006 and by written submissions.

Appearances:

Mrs. Wilson on her own behalf

Guy Hurtubise as "friend of the court"

R.W. Howard Lightle for TD Home and Auto Insurance Company

Issues:

The Applicant, Julie Wilson, was injured in the same serious motor vehicle accident on April 27, 1997 that killed her husband. She applied for statutory accident benefits from TD Home and Auto Insurance Company ("TD"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Wilson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

This arbitration has had a long history, complicated by the insistence of Mrs. Wilson that she be assisted by the services of a "facilitator" during the hearing process. As a result of the progress of this latter issue through arbitration, appeals, and onward to judicial review, the substantive hearing of Mrs. Wilson's claim for benefits has been repeatedly adjourned. Throughout this arbitration Mrs. Wilson has been self-represented. The arbitration hearing was finally, after several adjournments, scheduled to commence on November 14, 2005 in Sudbury.

On October 12, 2005, Mr. Lightle, counsel for the Insurer, wrote a letter to the Commission requesting another adjournment of the arbitration. Mr. Lightle requested that the hearing be adjourned sine die to allow time for the Divisional Court to deal with an application for judicial review of the decision of the Director of Arbitrations on an issue related to this claim.

Mrs. Wilson responded by letter, stating that she objected to the adjournment, and that she was ready to proceed with the arbitration hearing.

Although each party framed the matter of the appeal differently, whether as a question of the provision of appropriate accommodation during the arbitration process or the right of Mrs. Wilson to retain other than a lawyer or SABS representative, neither appeared to suggest that the judicial review before the Divisional Court dealt with the substantive aspects of Mrs. Wilson's claim.

In my correspondence replying to the adjournment request I noted that some 26 months had passed since the Application for Arbitration, without a hearing or a decision on Mrs. Wilson's entitlement to benefits. Absent extraordinary circumstances, this would be an unacceptable delay and not consistent with the Commission's policies on adjournments.

I found Mrs. Wilson's suggestion that an interim award of benefits might serve to address any prejudice not to be frivolous and one that could be considered as a possible option under the circumstances. However, while there may be precedents to such an order, I was not prepared to make an immediate ruling on the basis of brief submissions and the limited information contained in the Commission file.

Mrs. Wilson raised several important issues that I did not feel had been fully addressed by the Insurer. These included the question of conditions to be attached to any adjournment, whether a hearing on interim benefits could be held on a timely basis, and whether Mr. Guy Hurtubise, a Sudbury lawyer, can participate in this process as a "friend of the court."

Each of these suggested conditions, while unusual, had the potential to be constructive suggestions that could be relevant and potentially advantageous to the progress and disposition of this matter.

Given the breadth of the proposed conditions I decided that TD should have an opportunity to reply on a more complete basis. Since the adjournment request itself was more time-sensitive than the requested conditions, I made a decision to adjourn the arbitration, while reserving on any conditions to be attached to the adjournment. I wrote:

Given that Mrs. Wilson is not categorically opposed to an adjournment, providing any prejudice is addressed by an order for interim benefits or some such other relief, and the limited time remaining before the scheduled dates, I am inclined to grant a short adjournment while reserving on the question of any conditions to be placed on the adjournment, and the new dates to be set for the hearing.

While, technically, this was an adjournment sine die, I set time-lines for the parties to reach an agreement on new dates and for the provision of further materials with respect to the conditions Mrs. Wilson wished to be added to the adjournment order. Mrs. Wilson was to serve and file her request for the above conditions in motion format, with provision for formal responding materials from the Insurer. A date was also set for viva voce submissions by both parties on the issues relating to the adjournment.

The issue on this hearing is:

Is Mrs. Wilson entitled to an order appointing Mr. Guy Hurtubise as a "friend of the court"?
Is Mrs. Wilson entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act?
What date should be set for the arbitration hearing?

Mrs. Wilson also claimed interest on any amounts owing and her expenses incurred on this adjournment motion.

Result:

Guy Hurtubise is appointed as a "friend of the court."
Mrs. Wilson is entitled to interim benefits from October 21, 2005, to the date of the hearing as a condition of the adjournment.
The arbitration hearing will take place June 26, 27, 28 and 29, 2006 in Sudbury.

EVIDENCE AND ANALYSIS:

Appointment of an amicus curiae

As noted earlier, among the conditions for adjournment requested by Mrs. Wilson was the appointment of a "friend of the court" or amicus curiae. The purpose of this appointment, in Mrs. Wilson's own words, is "to assist the tribunal in obtaining the best possible presentation of evidence on my part and to assist me if I become distracted as a result (sic) from my physical and mental impairments."²

In the context of the application to appoint an "amicus curiae" it is important to note the long history of this matter, and the particular difficulties that have been presented in getting this matter to an arbitration on its merits.

Throughout this process, Mrs. Wilson has been self-represented, although assisted early on by Ms. Carolyn Champaigne, whose assistance in turn became controversial. Early on, a decision was made to bar her from acting for Mrs. Wilson, since she was not registered as a "SABS representative" and since her activities as a "facilitator" would likely necessitate her participation as a witness.³

For some time, Mrs. Wilson's arbitration claim has been bogged down in proceedings arising from this secondary issue. In the meantime, Mrs. Wilson, by choice, has remained self-represented.

She now has recognized that, however hard she may work to self-represent, the complexities of the law and practice at the Commission leave her at a disadvantage. She has suggested the participation of a "friend of the court" as a means of addressing this disadvantage, and as well, to address the need to accommodate her disabilities, in the absence of her facilitator.

Even at first glance, given the difficult history of this arbitration, the participation in the process of a lawyer knowledgeable in both the law and practice at the Commission cannot be seen as anything other than advantageous to this process since it serves to lessen the challenge to the tribunal and to the Insurer of dealing with an unrepresented litigant.

Mr. Lightle, however, opposed the appointment. He had serious reservations about the neutrality of someone who has represented Mrs. Wilson in another forum.⁴

Although there is little jurisprudence in the tribunal sector, the courts have shown a certain flexibility in such matters, appointing former counsel of a party in cases where their participation would be helpful. It is not at all from the court jurisprudence that the existence of a previous or continuing solicitor-client relationship is necessarily fatal to the appointment of a person as a "friend of the court."

At my request, Mrs. Wilson filed an acknowledgement from Mr. Hurtubise that there would be no provision for compensation in his role as amicus curiae, and that neither FSCO nor any party has undertaken to pay him for his services.

Given the utility of deciding this issue before the main motion hearing, with the consent of the parties, I issued an order that Mr. Hurtubise be allowed to participate in the arbitration as amicus curiae or "friend of the court" prior to the January 19 commencement of the interim benefits issue.

Although the appointment of a "friend of the court" or an amicus curiae is uncommon before administrative tribunals, such an appointment is not totally without precedent. In Alamin and Gracey et. al⁵, Director's Delegate Makepeace described the function of an amicus curiae.

The concept is a flexible one, and the role of amicus curiae has evolved to embrace four different functions - advising on a point of law, protecting the rights of unrepresented parties, preventing a substantial miscarriage of justice (for example, by informing the court of collusive or fraudulent suits), and protecting the public interest by presenting perspectives that would not otherwise be brought before the court.⁶

In this instance, the power invoked is "protecting the rights of unrepresented parties."

The issue of self-represented parties is one that has troubled the courts and tribunals for many years. In 1999, Chief Justice McMurtry spoke at the Opening of the Ontario Courts⁷

Judges are seeing more and more unrepresented litigants in our courts. I, therefore, believe that the major challenge facing the justice system in the next millenium will be the absence of adequate legal advice and legal representation to our society's increasing numbers of disadvantaged.

In Ontario, the Court of Appeal has identified the obligation of tribunals to accommodate unrepresented parties:

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination must, of necessity, be a matter of discretion.⁸

It goes without saying that the obligation of the tribunal to accommodate self-represented individuals risks creating a certain tension between accommodation and the necessity of the adjudicator to remain neutral and above the interests of the parties to the process.

Given the discretion of an adjudicator to fashion an appropriate response to the challenges posed by an unrepresented party, it is not surprising that courts have from time to time resorted to the appointment of an amicus curiae as a means of reducing the tension of the competing rules and to stay, as much as possible out of the fray.

While there is no provision in the Dispute Resolution Practice Code providing for the appointment of an amicus curiae, both the Practice Code and the SPPA⁹ provide generalized powers to tailor the practice to fit the process and to control the process and prevent its abuse.

A narrow view of an arbitrator's ultimate jurisdiction to deal with all matters before him or her has been founded on the theory that since arbitrators are not section 96¹⁰ courts and the Rules of Civil Procedure do not apply in arbitration, FSCO adjudicators lack the residual inherent powers of the superior courts. Arbitrators have only those powers that are granted by statute, expressly or by necessary implication.

In practice, however, the definition of the implied powers exercised by arbitrators has been interpreted quite liberally. As Director's Delegate Naylor observed in Branchaud:¹¹

I am not persuaded that an arbitrator's authority is so confined. Under a plain language reading of the Act, the arbitrator's mandate is broad. This is reinforced by section 20 which confers exclusive power on an arbitrator to address all questions of law and fact that arise in any proceeding before him or her, and by section 282(3) which requires an arbitrator to determine all issues in dispute and such other issues as the parties agree to. There is no reason to read the language awkwardly or restrictively. The plain meaning of the words confers jurisdiction on an arbitrator to deal with those questions which must be answered in order to make a ruling on an applicant's entitlement to benefits. [emphasis in original]

Given the obligation to accommodate self-represented parties within the hearing process, the power to appoint a "friend of the court" would appear to be one of those powers necessary to the hearing process and the rendering of justice between the two parties.¹²

I note as well, that Rule 1.1 of the Dispute Resolution Practice Code specifically allows an arbitrator considerable freedom to construct a hearing process that is congruent with the fundamentals of arbitration under the Insurance Act.

As noted earlier, Director's Delegate Makepeace in Alamin¹³ identified "protecting the rights of unrepresented parties" as one of the possible functions of an amicus curiae.

This function has fallen into relative disuse with the greater availability of legal services and the creation of statutory regimes intended to protect the interests of vulnerable litigants

From an examination of recent jurisprudence, and even the speeches given by the Chief Justice, what Director's Delegate Makepeace identified as "(P)rotecting the rights of unrepresented parties"¹⁴ has not fallen into disuse. In spite of early high expectations, legal aid is now so restricted as to financial eligibility and subject matter as to be unavailable to parties at arbitration. Unfortunately, "(P)rotecting the rights of unrepresented parties" remains a live concern, and a frequent reason for the appointment of an amicus curiae. Indeed, it seems to be so routine that the courts, at all levels, make such appointments without controversy.

I note as well that many of the cases relied upon by the Insurer, and indeed the Director's Delegate in Alamin must be approached cautiously since, in many, the appointment being considered is essentially that of an intervenor rather than the appointment of an amicus in representing the interests of a party.

While the concept of an outside intervenor has some similarities, it invokes the need to assist the court by bringing a point of view potentially outside of that expressed by the named parties to a lis.¹⁵ That is not the case in this matter since the appointment of an amicus curiae is focussed solely on the protection of one of those parties. Indeed, the Director's Delegate in Alamin¹⁶, perhaps inadvertently, encouraged this confusion.

The reason for granting intervenor status in accident benefit proceedings is to ensure that important perspectives, beyond those of the parties, are presented to the adjudicator.

While the decision of the Court of Appeal in Halpern v. Canada¹⁷ is frequently cited in the context of the appointment of an amicus curiae, it is noteworthy that it proceeded on the basis of the public interest criterion identified by Dubin J. A. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. It is clear however that different interests are at issue in cases "protecting the rights of unrepresented parties." Consequently, the role of an amicus curiae in such a situation also takes on a different flavour when an individual rather than a public interest is being represented.

In R. v. Ta,¹⁸ the Court of Appeal appointed Mr. Ta's former counsel as amicus curiae "to ensure that the appellant's interests were protected." It also allowed him to participate actively in the appeal, "ensuring that the necessary evidence was presented to this court." Likewise, in R. v. Jageshur, the Court of Appeal appointed an amicus curiae, and ordered the federal crown to pay his costs. In another recent reported case in the Superior Court of Justice, Durno J. stated:

However, as the case involves an important constitutional issue, if J.C. was not represented, the court would be obliged to appoint counsel as amicus curiae to oppose the crown's position. I find that Mr. Battigaglia is an acceptable and appropriate counsel, familiar with the issues, to appear as amicus. He is appointed amicus, with his fees to be paid at the Legal Aid Ontario rates, paid out of the Consolidated Revenue Fund.¹⁹

Mr. Battigaglia was trial counsel for J.C.

I note that in another case, Starson v. Swayze, both the Court of Appeal and the Supreme Court²⁰allowed former counsel to Mr. Starson to participate as amicus curiae.

In that case, Mr. Starson chose to be self-represented at the Court of Appeal and unrepresented at the Supreme Court level. Neither court had any difficulty in allowing Ms. Szigeti to participate, notwithstanding her previous role as counsel for Mr. Starson at both the Superior Court and the Consent and Capacity Board. She could not be seen as neutral, and indeed would be constrained by standards of professional conduct from taking any position in a matter involving a former client that went against his interests.²¹

In its initial decision recognizing the appeal,²² it appointed "Ms. Anita Szigeti to assist the Court by filing a factum in response to the factum of the appellant and making submissions at the hearing of the appeal." In its decision, it also notably distinguished between the amicus curiae who clearly was to address Mr. Starson's interest in this matter and other parties which it characterized as "intervenors."

It is my finding, then that, while I may not have any power to order anyone to fund the costs of an amicus curiae, I have jurisdiction to make such an appointment, with the consent of the person requesting to be named "friend of the court"²³ without funding, under appropriate circumstances.

I find such jurisdiction in Rule 1.1 of the Dispute Resolution Practice Code, section 20(2) of the Insurance Act, and more specifically the extensive power to control the process in a matter before me, rooted both in section 23 of the Statutory Powers and Procedures Act ("SPPA") and common law.

Given the complexity of this matter, the expressed desire, and indeed the absolute right of Mrs. Wilson to not retain counsel, I accept that it is both necessary to protect the rights of the parties to a fair process and useful to the efficient proceeding of this matter to appoint an amicus curiae.

I also accept that Mr. Hurtubise, notwithstanding his representation of Mrs. Wilson in another forum, is an appropriate person to be considered a "friend of the court" and should be so appointed. In so doing I take note of the fact that Mr. Hurtubise enjoys the confidence of Mrs. Wilson, and his appointment, in her mind, will serve to address the issue of the accommodation of her disabilities that has so delayed the hearing of the substantive matters in this arbitration.

Adjournment

The Introduction to the Dispute Resolution Practice Code (3rd edition, May 31, 2001) (the Practice Code), which governs arbitrations at the Commission, notes that our procedural rules aim to promote "timely, cost-effective and fair dispute resolution services."

The preamble to Practice Note 9, which deals with Adjournments, provides:

The Commission has an obligation to conduct arbitrations efficiently and speedily. Parties are contacted and agree to pre-hearing and hearing dates well in advance of the dates set. Therefore, adjournments are granted only sparingly once dates have been set.

Since the principal alternative to arbitration of accident benefits disputes at the Commission is a legal proceeding instituted in the Ontario Superior Court of Justice, the measure of the timeliness and effectiveness of arbitration must be in relation to those courts. In light of recent reforms to court procedures, including case management of most matters, every effort must be made to maintain the strict time requirements of the arbitration system.

While obviously the policy of the courts does not directly apply in the context of arbitrations, the direction is illustrative of the current general expectations of conduct in the context of fixing hearing dates. It also sets the bar which the arbitration process is meant to exceed.

Unlike the traditional rule in the courts, the arbitration system is designed to work on strict time discipline.²⁴ Hearing dates are set on the consent of both parties, and are subject to revision only in cases of personal emergencies, the prospect of imminent settlement, or the unforeseen unavailability of critical evidence, or the involvement of counsel in an ongoing proceeding that was scheduled to conclude before the time scheduled for the arbitration. Barring the occurrence of circumstances such as those described above, they are expected to be able to proceed within the agreed time frame. This is consistent with a system that is designed to be "quicker, less expensive and less formal"²⁵ than the courts.

The Dispute Resolution Practice Code²⁶ provides that:

An Application for Arbitration in FORM C will be registered and assigned to an arbitration case administrator within 5 business days of receipt of an Application completed in accordance with Rule 25.1.
Dates for holding an arbitration pre-hearing discussion (Rule 33) will be available to the parties within 6 to 8 weeks from the registration of a completed Application for Arbitration.
Dates for holding an oral arbitration hearing will be available to the parties within 4 to 6 months from the conclusion of the pre-hearing discussion.
An oral arbitration hearing is generally concluded within 3 days.
An arbitration order from an oral hearing will be issued within 60 to 85 days from the conclusion of the oral hearing.

Thus, according to the Practice Code, an insured may reasonably expect a ruling on benefit entitlements in less than a year from the commencement of the arbitration process.

The practice at the Commission with regard to adjournments has long reflected such a need to bring matters promptly to hearing. Even an actual or contemplated change of counsel does not give rise to an automatic right to an adjournment.

As noted earlier, the courts are now taking a not dissimilar approach. In a recent case, notwithstanding an agreement by a lawyer to take on a trial, if adjourned, the court not only refused the adjournment but dismissed the plaintiff's case altogether. On appeal, Doherty J.A., speaking for the Court of Appeal, outlined the importance of fixed hearing dates, even in the context of a change in counsel:

Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. Where a litigant successfully obtains the adjournment of a trial having failed to exercise due diligence in retaining counsel, that litigant must expect that absent unforseen circumstances, the trial will proceed on the new date.²⁷

This is essentially the same approach taken by the Commission in Rule 72 and Practice Note 9 of the Practice Code.

This is not to say that adjournments will not be granted in arbitration. Practice Note 9 sets out several reasons that an arbitrator may exercise his or her discretion to grant an adjournment. In addition, consideration must still be given to adjournments on the basis of fairness, provided that a way can be found to address any prejudice arising to a party from the adjournment. As Laskin J.A. stated in Khimji v. Dhanani Estate²⁸, "Under our modern Rules non-compensable prejudice plays a pivotal role in deciding whether to grant an amendment or an adjournment."

Rule 72.4 of the Practice Code specifically provides for adjournments being "on such terms as he or she [the adjudicator] considers just." Neither the Practice Code, the Schedule nor the Insurance Act provides any guidance as to the nature of the terms that an arbitrator can impose in the case of an adjournment.

Similar rules regarding adjournments exist in courts across Canada.²⁹ Indeed, the language dealing with adjournments "on such terms as he or she [the adjudicator] considers just" is almost universal. Certainly in Ontario a wide range of conditions have been applied to adjournments. In accident benefit cases, an order for some sort of interim benefits is not unheard of in this context.³⁰ In Hussein v. DeMatco, Lane J., sitting as a single judge of the Divisional Court, noted in an application for leave to appeal such an order:

Counsel for the Applicant concedes that Dempster v. Mutual Life holds that an insurer may be ordered to make such payments as a term of the adjournment, to the extent that the payment responds to the impact of the adjournment on the insured.

The Dempster³¹ case, cited by Lane J., involved an order that the insurer pay disability benefits for three months as a condition of an adjournment. In Dempster, the Divisional Court only had the brief endorsement to deal with on appeal. It examined the power to make such an order, and found that this was not the equivalent of a mandatory injunction restoring the policy to full force, but of a reasonable condition upon adjournment. The court dismissed the appeal and found the judge within his jurisdiction to make the interim order. It stated:

The term imposed was not the equivalent of a mandatory injunction restoring the policy to full force. It was clearly an interim step to ease the problem created for the plaintiff by the request for a lengthy adjournment.

For a more detailed analysis of the imposition of such terms, it is useful to look at the jurisprudence that has developed in British Columbia out of a similar provision for adjournments with conditions at the discretion of the judge.

Beginning with Serban v. Casselman³² the courts in British Columbia began to interpret both the court rules and judicial powers with regard to adjournments liberally enough to find jurisdiction to make an order requiring that advance payments be made by a defendant as a term of adjourning a trial.³³

The series of British Columbia cases suggest that, in circumstances where liability is not at issue, it may be appropriate to make an adjournment conditional on the advance payment of certain damages, or in insurance matters the reinstatement of benefits. The identification of the factor "where liability is not at issue" may seem to distinguish these cases from Mrs. Wilson's claim against TD. However, while TD clearly does not accept liability to pay the amounts claimed by Mrs. Wilson, most accident benefit cases by their very nature will satisfy the "liability" pre-condition.

The accident benefit scheme, which used to be described as "no fault" benefits, is an interesting creature. Unlike a tort action, where a plaintiff must first prove the defendant's tortious conduct and duty of care, before proving damages, in accident benefit cases those first steps are built into the nature of the benefit scheme.

Responsibility for payment of accident benefits is not dependent on the conduct of either party. With the exception of matters where contractual liability, or the very existence of an insurance contract is at issue, the disputes in accident benefits turn on whether there was a compensable disability arising from a motor vehicle accident. In the tort forum, this would be most easily classified as "proving damages." Hence, accident benefits disputes, excluding those with "coverage" issues, would find themselves in the area where, according to the B.C. courts, it is permissible to order an advance payment of "damages" as part of an adjournment. While courts in Ontario have not undertaken the same detailed analysis, this appears to be consonant with the approach used in Ontario.

Given the shared jurisdiction of arbitrators with the Superior Courts in accident benefit disputes, I find that the power of an arbitrator to adjourn a matter "on such terms as he or she considers just" must include the power to order a payment or payments of benefits, in circumstances where such an order would be appropriate.

I find that such a power, if exercised to order such benefits within a limited time period, to address a prejudice arising from the adjournment is not equivalent to a mandatory injunction nor an interim order under section 219(4.1) of the Insurance Act. It is a "stand alone" power relating to adjournments and the arbitrator's power to control the process before him or her.

Consequently, the discretion, although circumscribed by its need to be appropriate, to relate to the prejudice to the party, and the need to be "just" is not subject to those rules specifically relating to either injunctions in the court setting, or to interim benefit applications in arbitrations under the Insurance Act. Rather, providing, as in this case, the order has a specified, relatively short, duration and addresses the circumstances and the equities of the adjournment itself, it may be made as part of the adjournment order alone. In this case, I find that the conditions requested are appropriate to an adjournment and can be supported in that context, as discussed in the balance of this decision.

Interim Benefits as an appropriate Condition

In the context of an accident benefit claim and the situation of a particular arbitration, any condition imposed on an adjournment must be "just."³⁴ "Just" has been defined as "Legally right; lawful; equitable."³⁵ Likewise, it can be "acting or done in accordance with what is morally right or fair, deserved, well grounded," or "right in amount."³⁶

The ordering of conditions is within the discretion of an arbitrator, a discretion that must be exercised lawfully, fairly or equitably. The discretion of an adjudicator is a judgement call in the context of each case that provides a wide range of options in the exercise of that discretion, provided only that the order is not based on "irrelevant factors", a failure to consider "relevant factors" or if the condition itself was an "unreasonable conclusion."³⁷

Given the wide-ranging nature of judicial discretion and the necessary vagueness of the concept of "just" in the context of conditions on judicial orders, the best summary of the power would be that it must be applied on a principled basis, and its application will "depend upon the circumstances of each case."³⁸

From a principled perspective, it is important to keep in mind the purposes of the legislative statutory accident benefit scheme.

Eberhard J., in Gill v. Zurich, 1999 CanLII 36826 (ON SC), [1999] O.J. No. 4333 at p.14, made the following comments on the purposes of the statutory accident benefit scheme:

I adopt the statement of purpose articulated by Arbitrator Mackintosh at page 12 in Edgar v. Wellington Insurance Co. [1994] O.I.C.D. No. 34 File A-005441 that SABS is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a "fair and adequate income stream to those who are injured and disabled from work". The victim is to receive an approximation of wages, and not be compensated more or less.

In Smith v. Co-operators³⁹, one of the few accident benefit cases to have made its way to the Supreme Court, Gonthier J. made the following comment:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.

I adopt Eberhard J.'s and Gonthier J.'s comments on the nature of the accident benefit system.

In Ontario Securities Commission v. von Anhalt⁴⁰, S. E. Pepall J. considered in making his decision, among other things, the mandate of the Ontario Securities Commission in evaluating whether an interim order made by the Commission was proper in the context of that case. In the arbitration before me, I find that it is appropriate that consideration be given to the purposes of the accident benefit scheme, as characterized by Eberhard J. and Gonthier J. in evaluating the appropriateness of any discretionary condition placed on an adjournment.

The motor vehicle accident precipitating this case took place on April 27, 1997. Almost nine years have passed without a definitive ruling on entitlement to benefits. The arbitration has been in the system at FSCO since August 2003, without resolution. This is at least the third adjournment of this matter. The latest adjournment was requested by the Insurer to allow the issue of the use of a "facilitator" in the hearing process to be addressed by the Divisional Court. As I noted in my October 20, 2005 letter, "neither (party) suggests that the appeal deals with the substantive aspects of Ms. Wilson's claim."

Mrs. Wilson claims that she was ready to proceed to arbitration. While there is some attraction to the argument that previous adjournments have been granted, either on consent or with at the request of Mrs. Wilson, and therefore, no stringent conditions should apply to this adjournment, the continued granting of adjournments would appear to fly in the face of the standards set in Practice Note 9. Other than perhaps the migration of the issue of representation or accommodation through arbitration and appeals to the Divisional Court, there seems to be none of the extraordinary circumstances present, necessary to depart from the Commission’s adjournment policy.

Mrs. Wilson claims to have been ready to proceed in November 2005. Now the earliest dates when the Insurer's counsel is available will be late June of 2006, some eight months later. Normally such delay and the loss of preparation time for the adjourned hearing would be addressed by costs. Mrs. Wilson is self-represented and so has incurred few expenses that can be compensated by an order of expenses.

Mr. Lightle has submitted that there is a risk of having to repeat the arbitration process if the Divisional Court finds that Mrs. Wilson is entitled to rely on the services of her "facilitator" throughout the hearing process. There is some merit to this suggestion since a repetition of the hearing process would neither be efficient in time nor in use of each party's and the Commission’s resources.

However, it became clear to me that if Mrs. Wilson were to be successful on the issue of the appointment of an amicus curiae, that particular risk would evaporate. In Mrs. Wilson's own words: "the assistance of Mr. Hurtubise in the role of friend of the court will not place anyone at a disadvantage and will only level the playing field by accommodating my disabilities."⁴¹ In the context of this arbitration, at least, the provision of an amicus curiae is an appropriate substitute accommodation.

Laskin J.A.'s comment that non-compensable prejudice plays a pivotal role in deciding whether to grant an amendment or an adjournment would suggest to me that, if costs were the only available condition, I should decline the adjournment request, since such an order could not address the prejudice created by the adjournment. Indeed, his use of "compensable" rather than "compensable through a costs order" suggests that alternative means of compensating any prejudice may and should be considered.

I note that the status of Mrs. Wilson as an unrepresented party makes the consideration of an award of expenses of little benefit, since there is no way of adequately compensating her by means of a costs or expense order for her own unpaid work.

In this case, given the delays in getting this to hearing, the complexity of this matter, the Insurer's initial request for an open-ended adjournment, and the Applicant's professed readiness to proceed as scheduled, I find that the payment of certain benefits over a limited time will be the most appropriate way of addressing any prejudice accruing to Mrs. Wilson by a further delay in the hearing process.

Entitlement to a section 279(4.1) Interim Benefit Order

In the event that I am mistaken in my finding that there is jurisdiction to make an award of interim benefits in the context of an adjournment application, I will also deal with the question of whether such an order is also sustainable as an interim order.

Section 279(4.1) of the Insurance Act gives arbitrators a discretionary authority to make interim orders pending the final order in any matter.

Although neither the Insurance Act, the Schedule, nor the Dispute Resolution Practice Code provide any guidance as to the criteria for interim awards, arbitrators have not been shy about enunciating various rules and pre-conditions which frame this arbitral power. Principal among these has been the pre-condition that the Applicant must make out a prima facie case. In other cases, concepts of irreparable harm and balance of convenience, and a disregard for the process set out in the Schedule have been considered as either factors to be considered or pre-conditions to relief as the case may be.

Presumably they have drawn from the practice in the courts, including the practice surrounding interim injunctions. According to most arbitrators, an interim order is an exceptional remedy. They are supposedly not to be a routine part of the accident benefit claims process.

That there is some jurisprudential confusion concerning the principles to be applied to interim benefits is understandable, since they are unique to the arbitration process, and not dealt with by the courts, except in the context of judicial review. To date, there has been no such judicial review.⁴²

It should be remembered that an interim order is quite different from an order that is a final determination of the rights of the parties by a hearing arbitrator.

In my view, an order of interim benefits is designed to address the personal situation of the applicant in light of a preliminary determination of the merits of the case. It does not set in motion any process with respect to ongoing benefits, particularly when the nature and scope of such benefits can only be determined after a full arbitration hearing.⁴³

As I noted in Nguyen⁴⁴, the Insurance Act provides for no statutory pre-condition other than the existence of an arbitration, the appointment of an arbitrator and presumably, the willingness of the arbitrator to exercise his or her jurisdiction.

Obviously the process of making such an interim decision is subject to the normal rights of the parties to present evidence in support of their positions and to make submissions as to the proper decision for an arbitrator to make in the circumstances.⁴⁵

An arbitrator has a wide discretion to make orders, but he or she must make a decision judicially on the evidence before him or her. On a practical basis an arbitrator would be unlikely to make a preliminary order in a case where the claim was frivolous and had no chance of success. However, as a formal pre-condition to the granting of an interim order, a rigid concept such as prima facie case⁴⁶ is both difficult to apply and unjustified in law.

As discussed earlier, even if one is determined to import the prerequisites of equity and injunctive relief into interim arbitration awards, the use of the prima facie test is not justified. Since American Cyanamid⁴⁷ it has been clear that the test, in the case of injunctions at least, has been replaced by the concept of "a serious issue to be tried."⁴⁸

In support of this motion, there is a significant amount of medical material, including records, assessments and reports filed. The interpretation of this record differs substantially between Mrs. Wilson and her insurer.

TD essentially suggests that the complaint of ongoing brain injury is of recent invention, and can point to reports in the early years post-accident that seem to support such an analysis. As such, it has raised questions about whether Mrs. Wilson’s current complaints stem from the motor vehicle accident. As well, TD relies on the ambulance reports which appear to belie any suggestion that Mrs. Wilson underwent any period of unconsciousness immediately following the accident.

In TD's analysis of the case, the first suggestion of brain injury is that contained in Dr. Persinger's report some years after the accident. Even that report, it suggests, is of dubious value because of the "maverick" reputation it ascribes to Dr. Persinger.⁴⁹

While I have examined the documents referenced by both sides in their materials, I do not believe it appropriate to attempt to come to any final conclusion about reconciling all the documents filed to date by the parties. Indeed, any impression I could gain of the content of the materials would, at this point be incomplete, in the absence of updating reports and questioning about the basis of some of the conclusions put forward by the experts, and their assumptions.

To have allowed cross-examination on the medical evidence would have drastically altered the nature of this, necessarily summary, adjournment hearing. That is not to say, however, that I cannot draw any useful conclusions at this point in the process.

Mrs. Wilson, in her affidavit in support of her claim for interim benefits, states at paragraph 2:

I sustained significant multiple injuries, including but not limited to neuromusculoskeletal, TMJ, post-polio syndrome and a traumatic brain injury. I also developed a sleep disorder, panic, and anxiety disorders, and depressed mood. I have impaired listening (dichotic listening) and functional cognitive impairments, along with other cognitive communication and functional impairments.

I note in passing the discussion of the effect of the Rule in Browne v. Dunn in the recent interim benefit case of Nguyen and State Farm Mutual Automobile Insurance Company.⁵⁰ While I invited the parties to advise if they wished to cross-examine on the affidavits, neither party wished to do so. Consequently, while I do not need to specifically rely on the failure to cross-examine, I note the statement of J.W. Quinn J. in Bliss v. Van Egmond⁵¹ that "Although a court is not obliged to accept uncontradicted sworn evidence (whether given orally or by affidavit), where that evidence is not inherently improbable the failure to cross-examine invites its acceptance."

I do not accept that Mrs. Wilson's affidavit is "inherently improbable", and on its face, or unworthy of belief. I am also satisfied that there is little dispute that Mrs. Wilson was involved in a serious motor vehicle accident, with potentially significant consequences.

It is at this point, however, that the positions of both parties diverge so completely that it is difficult to find agreement on the nature and the consequences of the accident-related injuries. Mrs. Wilson has decided that her problems with concentration, sleep and pain and her difficulties in coping with any return to the workplace are due to a brain injury that took place as a result of the accident. In this position she is supported to some degree by a number of medical opinions which appear to buttress her case, including those of Drs. Persinger, Kearn and Van Reekum.

Mrs. Wilson also points to procedural irregularities and flaws in some of the DAC assessments and suggests that any adverse findings from the flawed assessments be disregarded, or minimised.

The Insurer, as mentioned earlier, disagrees strongly with the characterization of this case as a brain injury matter. Indeed, it has suggested, with the support of some of the assessors, that the brain injury theory is a late invention of a suggestible applicant, and that there is no credible evidence supporting the theory of brain injury as a mechanism for disability. I cannot reconcile the two approaches, nor need I do so at this stage of the process.

What is clear from an examination of the materials submitted by both sides is that there appears to be some sort of lingering problem with Mrs. Wilson that has limited her ability to return to the workforce. It is also clear that the disabling problems identified by the various reports, whatever their cause, seem to have occurred in the period following the accident.

The reported difficulties post-accident, other than the initial broken bones, bruising and lesions, have been associated with decreased intellectual acuity, fatigue, chronic pain, sleep disturbances and occasional dizziness and fainting.

Reading the reports from both sides of the equation, it becomes evident that there is little doubt that there are currently serious problems affecting Mrs. Wilson’s abilities to function on a daily basis. Dr. Neville Doxey,⁵² an examining psychologist, in 2003 wrote:

(T)here is little disagreement concerning the psychological repercussions of her accident. Grief and a bereavement process have been consistently identified. Dr. Ed Bassis saw her in January 1998 and felt that she was going through a normal bereavement process. However, he also cautioned that she may have been in the process of developing a Somatoform Disorder. Dr. Tuff and Dr. Bird, psychologists, saw her on two occasions, first in September 1997, and then again in April 1999. On both occasions, they felt that she was going through a bereavement process. However, on their reassessment, they were of the opinion that she was at risk of developing a "chronic pain syndrome" as her perception of disability was greater than one would expect on orthopaedic grounds. . .

Dr. Doxey continued:

In our opinion, the available data from the reviewed documentation, our clinical interview of Mrs. Wilson, and our observations of her over the course of her assessment in our office, favours the conclusion that she satisfies the DSM-IV-TR criteria for a diagnosis of Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, Chronic. While there is still a belief in some medical quarters that underlying organic pathologies are contributing to her ongoing pain and associated limitations, there seems to be no doubt that psycho-emotional factors are also prominently involved in the severity, exacerbation and maintenance of her pain and associated disability. The prognosis, unfortunately, after over six years, cannot be considered good . . .

[emphasis in original]

Dr. Doxey also addressed the consequences of his findings:

With respect to her employability, it would appear that, regardless of whether her pain disorder is considered to be largely psychological or organic, the overwhelming majority of medical experts who have commented on the matter have opined that, while Mrs. Wilson probably cannot return to her pre-accident occupation as a clerk with Revenue Canada, she should have the physical capacity to cope with a sedentary job, such as being an accountant once again.

While Dr. Doxey noted that there was evidence that Mrs. Wilson ought to be able to do some work, and that "there would appear to be no reason to believe that she lacks the intellectual and cognitive resources to perform work of this kind", he went on to consider what he thought to be the true impediment to a return to work.

Unfortunately, in spite of all of these opinions and even our own data, Mrs. Wilson, someone whose sincerity and honesty has never been called into question, believes that she cannot return to work as an accountant nor, in fact, to any work at all.

The portion of Dr. Doxey's conclusion that the Insurer relied upon in this motion hearing followed:

In our opinion, the major impediment to her ever returning to work is her deeply held belief, obviously supported by some members of the Brain Injury Association and perhaps some of her practitioners, that she has a serious brain injury and that she has been left with permanent and irreversible impairments that will not only preclude her from returning to work, but even will leave her forever in need of assistance to cope with the day-to-day demands of life.

His ultimate conclusion was, however:

Sadly, we fear that she will remain entrenched in her beliefs pertaining to her injuries and disabilities and will remain symptomatic and restricted, much as she is now, over the long term.

This is consistent with Dr. Berry's conclusion, prepared approximately in the same time-frame in which he diagnosed somatoform disorder with features of anxiety and depression. He concluded:

She can be reassured that she has not suffered any permanent brain injury and that her physical condition is of a type that can benefit from increasing activity. The prognosis for a somatoform disorder with anxiety and depression becomes poorer with the passage of time and it is over six years since the accident. Under the circumstances, therefore, it is reasonable to predict that a significant level of disability will persist.

I have focussed on Dr. Doxey's comments since he seems to have done a reasonable summary of the medical evidence to date. In addition, both sides relied on aspects of his report. Unlike some experts involved in this process, his credentials and his expertise have not been attacked by either side in submissions. In addition, at least on my reading the report, Dr. Doxey appears to have attempted to remain non-partisan and to attempt to give his frank opinion, whether it favoured the party paying for his assessment or not.⁵³ Given that both parties in this motion claimed to rely on his report, he must have succeeded, to some degree.

Dr. Doxey's report did not support Mrs. Wilson's version of events in which a closed brain injury led to disability. Nor did the report support the Insurer’s contention that Mrs. Wilson is not disabled. Dr. Doxey finds that she suffers pain disorders associated with both psychological factors, a general medical condition and an adjustment disorder. He finds that "she will remain symptomatic and restricted, much as she is now, over the long term." All this leads her to a state where her long-term employability is questionable. He also finds that her belief that she is organically dysfunctional and left with permanent and irreversible impairments is a "major impediment to her ever returning to work."

In this context, it is important to note Dr. Doxey’s comments that Mrs. Wilson is a person whose "sincerity and honesty has never been called into question" and that she has a "tendency, at least in this assessment, to minimize disclosure of psychological symptoms on testing."

Notable as well are Dr. Berry's comments that "(a)n incorrect diagnosis of brain injury has been made by a psychological examiner and it is recognized that an incorrect diagnosis can contribute to ongoing symptoms and limitations."

I am not, however, convinced that Dr. Berry’s comments necessarily assist the Insurer in avoiding responsibility for the "ongoing symptoms and limitations."

Arbitrator Alves in Saliba dealt with a case in which a person became quadriplegic following back surgery to deal with the consequences of a series of motor vehicle accidents.⁵⁴ In her decision she commented:

Medicine remains an inexact science and it would appear that there is a great deal of room for differing opinions and judgment. There is no suggestion that Dr. deVilliers failed to disclose the risks of surgery, or that he carried out the surgery in an improper manner. I find no new intervening act which would relieve Allstate and Progressive from responsibility for Mr. Saliba's statutory accident benefits. Although Mr. Saliba's disability has worsened following the surgery, this also does not relieve Allstate and Progressive from responsibility for Mr. Saliba's statutory accident benefits.⁵⁵

This also reflects the position taken by the Court of Appeal in Papp v. LeClerc⁵⁶:

Every tortfeasor causing injury to a person placing him in the position of seeking medical or hospital help, must assume the inherent risks of complications, bona fide medical error or misadventure, and they are reasonable and not too remote...

Even if Mrs. Wilson's post accident limitations were due to an incorrect diagnosis by Dr. Persinger, given the fact that the diagnosis and opinion sought may have been directly attributable to the evaluation and treatment of the motor vehicle accident associated conditions, the effect of the wrong diagnosis, on a Saliba analysis, might well be found within the chain of causation of the motor vehicle accident. As a result, it is not at all clear that any resulting disability attributed to a wrong diagnosis would not itself be a compensable disability under the Schedule.

It is quite conceivable that Mrs. Wilson, despite her "sincerity and honesty"⁵⁷, is mistaken as to the mechanism of her inability to work effectively and productively. After all, well trained experts have issued wildly diverging opinions on what drives her apparent disability. While it is possible that at arbitration further evidence might support the brain injury theory, a clear definition of the mechanism of the impairment is not necessary if the statutory test of an impairment arising "as a result of a motor vehicle accident"⁵⁸ is met.

Most of the reports identify some difficulties with productive work, whatever the cause. The chronology of this matter, as well as the balance of the evidence, seems to imply that, notwithstanding other issues such as childhood polio and problems with allergies, nothing interfered with her ability to work until the accident in question.⁵⁹ It makes some sense that an accident that saw her new husband die in the seat next to her, and left her bruised and broken, would have been the watershed between work and disability.

What counts in identifying disability is not necessarily the diagnosis and definition of the particular injury or illness that is the mechanism of the disability, but the finding that a person suffers a "substantial inability" (depending on the appropriate legislative test). Certainly agreement on the mechanism of the disability makes the finding easier, and the demonstration of a linkage to the motor vehicle accident more direct. An agreed specific diagnosis, however, is not a pre-condition to a finding of impairment or disability. Consequently, I make no finding as to the correct diagnosis and mechanism of Mrs. Wilson's condition.

From the content of Mrs. Wilson’s affidavit, the documented problems with managing grief, fatigue and concentration, and the findings of many examiners, I find that there is a reasonable possibility of a finding of an inability to perform her previous work as an accountant, as well as any other work to which she may be suited by reason of education, training and experience in any competitive commercial environment. A finding that any such disability arose from the accident is likely, if only from the timing of the onset of symptoms of disability.

Lord Denning once suggested a possible analysis for requests for mandatory relief. According to him:

the right course for a judge is to look at the whole case. He must have regard not only for the strength of the claim but also the strength of the defence, and then decide what is best to be done...the remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.⁶⁰

By any analysis of the material filed in this motion, Mrs Wilson has a case that is far from frivolous. While the ongoing argument over accommodation may have been vexing to some, the claim itself is not vexatious. It cannot be dismissed out of hand.

While the Insurer has focussed on the weakness of Mrs. Wilson's case with regard to the theory of the acquired brain injury, she has offered explanations for some of the negative reports that may well assist her. More importantly the evidence for functional disability⁶¹ is stronger than any of the evidence of its mechanism. The evidence also suggests that the motor vehicle accident in question played a key role in precipitating the onset of the functional limitations identified by Mrs. Wilson.

It is not at all unlikely, based on the current available materials, that an arbitrator would find the necessary disability arising from the accident, by whatever mechanism, to justify awarding Mrs. Wilson benefits.

Dr. Doxey may well be right that Mrs. Wilson has gone off on a tangent in putting forward the theory of brain damage, but that may well be understandable in light of her "tendency, at least in this assessment, to minimize disclosure of psychological symptoms." There is evidence that, notwithstanding Mrs. Wilson’s own theories, she may well also be disabled due to the psychological factors already identified. I leave any such finding to the hearing arbitrator who will have a better opportunity to weigh more complete evidence on this and other issues. By any estimation, however, there is a serious issue to be tried.

Mrs. Wilson has stated in her affidavit that she lives in somewhat straightened circumstances. Although she receives some disability income, as well as a widow’s benefit from CPP, she receives nothing from the Insurer by way of income replacement benefits. Accident benefits are meant to provide "prompt payment of an income benefit to replace income lost due to the accident." Poverty is not a pre-condition to the payment of accident benefits. Entitlement according to the Schedule alone is.

I note, as well, that with the hearing now scheduled for June 2006, Mrs. Wilson will have to prepare herself for that hearing in the intervening months. Even self-represented as she is, she will be put to expenses in obtaining documents and reports and in such details as providing conduct money to witnesses that she intends to summons. If her financial circumstances are limited now, they will be more straightened with the payment of such expenses.

Given that Mrs. Wilson has a case for entitlement, that the accident was some nine years ago, and that the current adjournment has further delayed the hearing of the arbitration, I am satisfied that the granting of an interim expense order would advance the purposes of this legislative scheme and be appropriate under the circumstances. In addition, given the limited period of the order, and Mrs. Wilson's recognition that she may be required to re-pay the funds, should she lose, the balance favours an award in these circumstances.

If in creating an accident benefit scheme, the "scheme of the act, the object of the act, and the intention of Parliament"⁶² is the creation of a legislative scheme that provides consumer protection and that allows for the provision of "a fair and adequate income stream to those who are injured and disabled from work", then the purposes of the accident benefit scheme, as well as the equities between the parties, are well served by an order of interim benefits pending the full hearing of this matter on the merits and I so order.

On the basis of the material filed, I would also find, should it be necessary to support this order, that Mrs. Wilson has presented at least a prima facie case of entitlement to benefits, and that she has demonstrated some urgency in her request. I also accept that she would be able to demonstrate "irreparable harm." This is usually defined as follows:

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.⁶³

I note that, in addition to the principal claim for income replacement benefits, Mrs Wilson has put forward other claims, including medical benefits, which are also "on hold" pending a determination of whether she has suffered a disability arising from the accident. She also claims to be continuing to suffer pain and distress, neither of which can be directly compensated under the Schedule, and neither of which can be mitigated without the disability finding and the resultant right to reasonable and necessary treatment funded by the Insurer.

Although I would find entitlement to an interim benefit order under the criteria I outlined in Nguyen, as well as those identified by Arbitrator Bayefsky in Kolonjari, such considerations are secondary, given the primary nature of this order as a condition to the adjournment of this matter, and supported as such by the situation surrounding the adjournment.

I find for all the above reasons that it is appropriate that the payment of interim benefits be ordered and that they commence effective October 21, 2005, the date of the original order adjourning this matter.

While there is some dispute as to the appropriate quantum, I accept that the amount of $231.81 put forward by Mrs. Wilson makes sense, since it appears to take into account the deductible collateral benefit, while not addressing the CPP benefits which she has characterized as a widow's benefit. I make no finding as to the ultimate deductibility of either benefit however, and accept that the quantum of any benefit remains in issue in this arbitration.

EXPENSES:

I leave the question of expenses to the hearing arbitrator.

March 10, 2006

John Wilson Arbitrator

Date