Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 122
Appeal P06-00028
OFFICE OF THE DIRECTOR OF ARBITRATIONS
ING INSURANCE COMPANY OF CANADA Appellant
and
MARIA ANDRE Respondent
Before: David Evans
Representatives: Brian Evoy-Smith Monique Rae Bennett for Mrs. Andre
Hearing Date: May 23, 2007, in London, Ontario
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal from the arbitrator's order dated July 27, 2006 is allowed with respect to the date from which interest accrues. Paragraphs 1 and 2 of the order are amended by removing from them the words "calculated commencing September 18, 2003."
The matter is remitted to the arbitrator to determine the benefits due date.
June 15, 2007
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
The arbitrator found that Mrs. Andre is entitled to death and funeral benefits under the SABS–19961 relating to the death of her husband on September 18, 2003. ING only appeals the arbitrator's award of interest "calculated commencing September 18, 2003."
II. ANALYSIS
The parties agree that the arbitrator erred in awarding interest from the date of Mr. Andre's death. Death does not determine the benefits due date for death and funeral benefits but rather the date of application for their payment. In particular, these benefits are only due "within 30 days after the insurer receives the application for the benefit" [s. 41(1) of the SABS], and interest only accrues from the date the benefit becomes "overdue" [s. 46(2)]. Accordingly, the benefits were not overdue on September 18, 2003, and the arbitrator's order requiring interest to be calculated from that date cannot stand.
Although the parties agree that interest should not run from the date of death, they disagree on the benefits due date. ING submits it is 30 days after it received the application on January 6, 2004. Mrs. Andre submits it is 30 days after her husband's death on September 18, 2003, based in part on events that occurred immediately after his death. To that end, she wanted to give me fresh evidence such as letters from the adjuster to show when the application for the benefits should be considered to have been received. However, since I was not at the arbitration hearing, no arbitration transcripts were filed, and the arbitrator provided no discussion with respect to the benefits due date, I find I can neither determine the benefits due date nor whether in the circumstances it would be appropriate to allow fresh evidence. The arbitrator is in the best position to determine the benefits due date. Therefore, that issue shall be remitted to him.
III. EXPENSES
If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
June 15, 2007
David Evans Director’s Delegate
Date