Walter Bruce Saunders v. Royal & SunAlliance Insurance Company of Canada, 2007 ONFSCDRS 144

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 144

FSCO A07-000499

BETWEEN:

WALTER BRUCE SAUNDERS

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

SUPPLEMENTARY DECISION ON A MOTION FOR INTERIM BENEFITS

Before: John Wilson

Heard: June 20, 2007, by Teleconference

Appearances: Mr. Saunders appeared on his own behalf. Pamela A. Brownlee for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Walter Bruce Saunders, was injured in a motor vehicle accident on January 27, 2004. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ Royal terminated weekly income replacements. The parties were unable to resolve their disputes through mediation, and Mr. Saunders applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Saunders brought a motion, pursuant to section 67 of the Dispute Resolution Practice Code — Fourth Edition, for interim benefits to be paid to him pending the resolution of his dispute with Royal. I issued an interim decision on that issue on June 20, 2007.

In my initial decision on interim benefits I found as follows:

Absent collateral insurance payments Mr. Saunders would be entitled to a payment of $600 per week. The quantum of this payment was not in issue.

Mr. Saunders, however, revealed that he was now currently receiving CPP payments, which, as Royal pointed out, are properly deductible from any IRB payments owed by the Insurer. At the hearing of this motion, Mr. Saunders did not have the documentation with regard to the CPP payments available and consequently I am unable to calculate the amount of the interim payment to be ordered. I give the parties 14 days from the date of this decision to provide brief written submissions as to the amount of the income replacement benefit, failing which I will proceed to fix an amount based on the material on hand. A final order will be deferred until that time.

Both Mr. Saunders and Ms. Brownlee have now provided me with submissions as to the appropriate quantum and the timing of the order. After reviewing the effect of the CPP deduction from Mr. Saunders’ net income as calculated by the Insurer’s accountants, Ms. Brownlee conceded that Mr. Saunders would remain entitled to the maximum enhanced benefits under his policy; an amount of $600 per week. Mr. Saunders concurred with this result although he disputed the Insurer’s calculation of his net pre-accident income.

Ms. Brownlee also submitted that the interim benefit should be payable effective June 20, 2007, the date of my initial order on entitlement in this matter. Mr. Saunders urged me to make the order payable effective as of the date of termination of the income replacement benefit by the Insurer.

Given the unusual nature of an interim benefit application, and its goal of providing temporary relief for an insured pending the final adjudication of his claim, I find that it is more appropriate that the interim payment be effective as of the date when Mr. Saunders first applied for it. A letter from Mr. Saunders to the Commission dated March 20, 2007 appears to be the first formal notice of his claim for interim benefits, and I make the order payable as of that date.

As noted in my previous decision, this interim benefit award may be repayable by Mr. Saunders, should he be unsuccessful in his arbitration. Because of the temporary and contingent aspect of my award in this matter, I will defer any consideration of outstanding interest on the income replacement benefits to the hearing arbitrator. There will be no present order for interest on the interim benefits.

I will remain seized of the interim benefit issue, including the quantum, for the duration of the order, should there be a substantial change in the fact situation giving rise to this order.

EXPENSES:

The question of expenses is deferred to the hearing arbitrator.

July 30, 2007

John Wilson Arbitrator

Date