Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 104
FSCO A05-000847
BETWEEN:
VINCENT RANDALL
Applicant
and
ING INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
February 23, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Randall did not appear.
Louise James for ING Insurance Company of Canada
Issues:
The Applicant, Vincent Randall, was injured in a motor vehicle accident on March 27, 2002. He applied for and received statutory accident benefits from ING Insurance Company of Canada, payable under the Schedule.1 ING terminated weekly income replacement benefits on December 31, 2003. However, due to the failure of ING's clerk to enter the termination on ING's computer, the computer continued to generate income replacement benefits until December 7, 2004, when the error was corrected and ING stopped issuing cheques to Mr. Randal.
In this arbitration ING seeks repayment of $19,542.86 plus interest. The parties were unable to resolve their disputes through mediation, and Mr. Randall 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 as set out in the pre-hearing letter of October 18, 2006 are:
Is Mr. Randall entitled to a weekly income replacement benefit from June 1, 2004 pursuant to section 4 of the Schedule?
Is Mr. Randall entitled to housekeeping expenses from December 16, 2003 to March 27, 2004, pursuant to section 22 of the Schedule?
Is ING entitled to a repayment of benefits of $19,542.86 for the period December 31, 2003 to December 7, 2004, pursuant to section 47 of the Schedule?
Is either party entitled to interest pursuant to sections 46(2) or 47 of the Schedule?
Is Mr. Randall 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:
Mr. Randall is not entitled to a weekly income replacement benefit from June 1, 2004 pursuant to section 4 of the Schedule.
Is Mr. Randall is not entitled to housekeeping expenses from December 16, 2003 to March 27, 2004, pursuant to section 22 of the Schedule.
ING is entitled to a repayment of benefits of $19,542.86 for the period December 31, 2003 to December 7, 2004, pursuant to section 47 of the Schedule.
ING is entitled to interest pursuant to 47 of the Schedule on $19,542.86 at the rate of 2.4983 % per year from December 24, 2004.
Mr. Randall is not entitled to a special award pursuant to section 282(10) of the Insurance Act.
ING is entitled to its expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act after assessment.
EVIDENCE AND ANALYSIS:
I review the history of this matter to determine whether I have jurisdiction to deal with the issues.
Jurisdiction:
The Application for Arbitration is dated April 21, 2005. Mr. Randall did not sign it. Reynold Kim, a lawyer, signed it as Mr. Randall's representative. The issues in dispute in the Application are identified as Mr. Randall's entitlement to income replacement benefits at $400 per week from January 1, 2004. ING's claim for repayment of $19,542.86 is also identified as an issue under the heading "weekly benefits." In the Application Mr. Randall also claimed housekeeping benefits of $100 per week from December 16, 2003 to March 27, 2004.
The first pre-hearing was scheduled for November 17, 2005. Due to a conflict in Mr. Kim's schedule, the pre-hearing was rescheduled on consent to February 1, 2006.
By letter dated February 1, 2006 addressed to the Commission caseworker, Mr. Kim advised that Mr. Randall was out of the country. He requested an adjournment. By Notice dated February 1, 2006, the Commission advised the parties that on consent of the parties the pre-hearing discussion would be held on August 28, 2006.
Prior to the resumption of pre-hearing, Mr. Kim applied for an order removing his firm as representative. By letter dated August 1, 2006, Arbitrator Wilson permitted Mr. Kim's firm to withdraw as representative of Mr. Randall. Mr. Wilson wrote that if Mr. Randall did not appear at the pre-hearing scheduled for August 28, 2006, ING was free to bring a motion to dismiss the arbitration on the basis of abandonment. As a pre-condition to any such motion he ordered ING to publish a notice twice in a newspaper having general circulation in the Portuguese community in Toronto that a hearing would take place that might affect his claim against ING for accident benefits, which might lead to the dismissal of his claim.
Mr. Randall did not appear at the resumption of pre-hearing on August 28, 2006. Arbitrator Bujold set dates for the parties to file materials with respect to the motion to dismiss on the grounds of abandonment. By letter dated September 12, 2006, ING advised Arbitrator Bujold that it was withdrawing its motion for an order dismissing the arbitration because it would rather proceed with a hearing. Arbitrator Bujold permitted ING to withdraw its motion and set a date for resumption of pre-hearing to identify the issues in dispute.
Mr. Randall did not appear at the resumption of pre-hearing on October 13, 2006. Arbitrator Bujold identified the issues in dispute and the matter was scheduled for hearing on January 5, 2007.
At the request of ING, Arbitrator Muir adjourned the hearing to February 23, 2007, which I presided at.
Conclusion on Jurisdiction:
Although Mr. Randall did not sign the Application for Arbitration, the Application indicates that he has an interest in the proceedings and that he was aware of the claim for repayment. The Application was signed by Reynold Kim, a member of a law firm. I have no evidence or information that Mr. Kim was not authorized to act on Mr. Randall's behalf. I therefore find that the Application for Arbitration was properly instituted and the fact that Mr. Randall did not sign it does not deprive me of jurisdiction.
Arbitrator Wilson's order that ING notify Mr. Randall of ING's application for an order dismissing the Application for Arbitration on the grounds of abandonment by publishing in a community newspaper does not refer to giving notice of this hearing. Further, section 9.1 of the Dispute Resolution Practice Code (4th Edition) requires parties to notify the Commission of any change of address and provides that the Dispute Resolution Group is entitled to rely on the last known address contained in its records. The Commission mailed the various Notices of Resumption of Pre-hearing and Notices of Hearing to Mr. Randall's address as identified in his Application for Arbitration. Although the evidence suggests that Mr. Randall is out of the country and did not receive these notices, Rule 9.1 allows me to rely on Mr. Randall's last known address for the purpose of determining whether the Commission gave him notice of these proceedings.
Therefore, although Mr. Randall did not sign the Application for Arbitration, and although he likely did not receive actual Notice of Hearing, I am satisfied that I have jurisdiction to deal with the issues of the arbitration.
Income replacement and housekeeping benefits and special award:
Since I heard no evidence on the issue, Mr. Randall's claim for income replacement benefits, housekeeping benefits and a special award are dismissed.
Repayment:
ING claims that it mistakenly paid weekly income replacement benefits for one year after it terminated those benefits.
Under section 47 of the Schedule an insurer is entitled to a repayment of any benefit paid to a person on account of, among other reasons, error on the part of the insurer. The insurer must give notice of the amount that is required to be repaid within 12 months after the payment was made. The insurer may charge interest on the amount repayable at the "bank rate" which is defined in the Schedule.
The evidence consisted of the testimony of Ms. Valerie MacDonald, an adjuster with ING, and documents that ING filed. Based on that evidence I find as follows:
One week following the accident of March 27, 2002, ING commenced paying to Mr. Randall a weekly income replacement benefit of $400. Following an insurer's medical examination in which the examiner found that Mr. Randall did not meet the test for entitlement, ING issued a "Notice of Stoppage of Weekly Benefits and Request of Assessment" dated December 12, 2003, in which it advised Mr. Randall that it would stop paying income replacement benefits effective December 31, 2003.
The independent adjuster handling the claim did not inform ING of the stoppage and ING's automatic pay system computer continued to issue cheques. About one year later the adjuster asked ING about the status of the payments and ING discovered the error and ING stopped issuing cheques.
On October 28, 2004, the independent adjuster advised Mr. Randall and his counsel of the error and that ING was seeking repayment of $17,942.86 in income replacement benefits from January 1, 2004 to November 9, 2004. It took a further four weeks to stop the automatic payments. By letter dated December 9, 2004, the independent adjuster advised Mr. Randall and his counsel that the overpayment was now $19,542.86. The adjuster also advised that ING was seeking interest at 2.4983% which was the bank rate of the Bank of Canada on December 9, 2004.
Conclusion on repayment:
I find that ING overpaid Mr. Randall $19,542.86 income replacement benefits due to its error and that it gave Mr. Randall notice of the overpayment within 12 months after the payment was made. It is therefore entitled to a repayment of $19,542.86.
Conclusion on interest:
I accept that the "bank rate" as defined in the Schedule was 2.4983% per year on the date notice was given and that ING is entitled to interest on $19,542.86 from 15 days after it gave notice, which is, interest from December 24, 2004 at 2.4983% per year.
EXPENSES:
ING is entitled to its expenses of the arbitration proceeding. The parties may make written submissions on the amount of expenses in accordance with section 79.2 of the Dispute Resolution Practice Code (Fourth Edition).
May 24, 2007
William J. Renahan
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 104
FSCO A05-000847
BETWEEN:
VINCENT RANDALL
Applicant
and
ING 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:
Vincent Randall's application for arbitration is dismissed.
Vincent Randall shall pay ING Insurance Company of Canada $19,542.86.
Vincent Randall shall pay ING Insurance Company of Canada interest on $19,542.86 from December 24, 2004 at 2.4983% per year.
May 24, 2007
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.