Neutral Citation: 2007 ONFSCDRS 163 FSCO A07-000898

BETWEEN:

ERICA VANDYK Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Joyce Miller Heard: August 15, 2007, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Nestor E. Kostyniuk for Ms. VanDyk Robert Robertson for State Farm Mutual Automobile Insurance Company

Background:

The Applicant, Erica VanDyk, was injured in a motor vehicle accident on October 11, 2004. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm paid Ms. VanDyk an income replacement benefit for one month after the accident. Ms. VanDyk returned to work on November 17, 2004 on a part-time basis on modified duties. On January 15, 2005, she returned to full-time work on modified duties. Ms. VanDyk worked until December 12, 2006. Ms. VanDyk claims she stopped work on the advice of her doctor due to increased symptoms from the injuries she incurred in the car accident. Ms. VanDyk made a claim for further income replacement benefits. State Farm denied her claim for weekly income replacement benefits and alleges that she is out of time pursuant to subsection 281(2) of the Insurance Act. The parties were unable to resolve their disputes through mediation, and Ms. VanDyk applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing has not been held in this case. Ms. VanDyk applied for arbitration on May 28, 2007. State Farm responded on May 29, 2007. Mr. March, counsel for State Farm, was not available for a pre-hearing until September 11, 2007 as he would be away on holidays for the month of August. On June 27, 2007, Ms. VanDyk filed a motion for interim benefits on the basis that State Farm was not able to provide an earlier pre-hearing date and that she was in urgent financial need.

Issues:

The issues in this hearing are:

Is Ms. VanDyk entitled to interim benefits pursuant to subsection 279(4.1) of the Insurance Act?
Is either party entitled to its expenses of this motion for interim benefits?

Result:

Ms. VanDyk is not entitled to interim benefits.
If the parties cannot agree on the issue of entitlement or amount of expenses of this motion, they may make a written request for a determination of these issues within 30 days of the date of this order.

THE LAW

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter. As pointed out by Arbitrator Feldman in the case of Ananthamoorthy and TD Home and Auto Insurance Company,² "The Act itself does not give any guidance as to what factors an arbitrator ought to consider in deciding whether or not to exercise this discretion in favour of an applicant."

In the Ananthamoorthy decision, Arbitrator Feldman undertook an analysis of the various cases on interim benefits and provided the following analysis with which I agree.

Arbitrators have wrestled with this issue for over a decade. It is extraordinary (even in the realm of consumer protection) to grant monetary relief to a party prior to a full hearing on the merits of the case. Therefore, on a motion such as this, arbitrators have generally considered whether or not the applicant has demonstrated a compelling reason for the Commission to grant interim relief.

As part of this analysis, arbitrators have given some consideration to the apparent merits of the application, the majority of arbitrators finding that the applicant must at least demonstrate a prima facie case.³ Arbitrators have not always agreed on what this means.⁴

Arbitrators have also generally considered whether the applicant has demonstrated some compelling need or urgency.⁵ In other words, "Is there a good reason why the applicant cannot wait until the hearing order is issued to receive any benefits (plus interest) to which he or she may be entitled?"

Ioannidis and Canadian General Insurance Group⁶ was a relatively early decision on this issue in which certain basic principles were enumerated (at pages 6 and 7 of the decision). Over time, different schools of thought began to develop concerning the criteria that ought properly to be considered on motions such as these. Different "tests" have developed and some have been applied rather strictly. More recently, there has been some indication of a shift by the Commission away from the rigid application of any particular "test" or "threshold". Bearing in mind the principles enunciated in Ioannidis, arbitrators are beginning to return to a consideration of whether or not the applicant has demonstrated a compelling reason or reasons for the granting of interim benefits. The reasons may vary from case to case and the approach adopted must be flexible.⁷ For instance, a blatant disregard of the Insurance Act or the Schedule by the insurer may give rise to an order for interim benefits.⁸

A motion for interim benefits is summary in nature and does not constitute a full hearing on the merits of the application. As such, these motions are determined on limited evidence and submissions. These motions are meant to be resolved expeditiously and ought not to add substantially to the expense of the parties or delay the ultimate hearing. Since the power to grant interim benefits is discretionary, the arbitrator hearing the motion must simply exercise his or her discretion in a reasonable manner. That discretion extends not only to whether or not to grant interim benefits, but also to the amount and duration of those benefits.

EVIDENCE AND ANALYSIS

Ms. VanDyk submits that she has presented a prima facie case along with sufficient evidence of urgent financial need to justify being awarded interim weekly income replacement benefits.

For the following reasons, I find that Ms. VanDyk has failed to establish on a balance of probabilities a compelling reason for entitlement to interim benefits.

I do not find that Ms. VanDyk has established a prima facie case of entitlement on the medical evidence she presented. Ms. VanDyk's relevant medical evidence is as follows:

A disability certificate from her family physician, Dr. S.L. Munro, dated November 5, 2004, which stated that Ms. VanDyk is substantially able to perform the essential tasks of employment at the time of the accident as a result of and within 104 weeks of the accident.
A disability certificate from her chiropractor, Dr. Mezei, dated July 25, 2006, which stated that Ms. VanDyk is substantially able to perform the essential tasks of employment at the time of the accident as a result of and within 104 weeks of the accident.
A disability certificate from a physiatrist, Dr. A. Kachooie, dated November 29, 2006, which gives an ambiguous response, in that Dr. Kachooie ticked off both the "yes" and "no" boxes, with more emphasis on the "no" box, as to whether or not Ms. VanDyk is substantially able to perform the essential tasks of employment at the time of the accident as a result of and within 104 weeks of the accident.
A disability certificate from Dr. A. Kachooie, dated February 13, 2007, which stated that Ms. VanDyk is substantially unable to perform the essential tasks of employment at the time of the accident as a result of and within 104 weeks of the accident. It also states that the "anticipated duration" of her disability as of February 13, 2007 was nine to twelve weeks.

In addition, I note that until she saw Dr. Kachooie on November 29, 2006, the last time Ms. VanDyk had treatment plans for chiropractic treatments and massage was on November 15, 2005 from Dr. Mezei. Although Ms. VanDyk submits that there was deterioration in her physical condition in 2006 that required her to stop working, I find there is very little, if any, medical evidence to support her claim.

Moreover, except for her affidavit wherein Ms. VanDyk claims financial need for interim benefits, she has not provided any supporting documentation for this need. I note that Ms. VanDyk stopped working in December 2006 and had received four months of Employment Insurance before she applied for Arbitration in May 2007. Ms. VanDyk affirms that she has to go into her savings and RRSP for everyday living expenses and risks loosing her share in a Condominium. Ms. VanDyk, however, did not provide how much savings and RRSPs she has or what is the amount of her share in the Condominium.

Accordingly, for all these reasons, I find that Ms. VanDyk has failed to adduce sufficient evidence of a compelling reason for entitlement to interim benefits. In particular, Ms. VanDyk did not present any medical evidence to support a prima facie case for entitlement. Nor did she provide sufficient evidence to prove financial urgency.

Accordingly, I find that Ms. VanDyk is not entitled to interim benefits.

EXPENSES:

If the parties cannot agree on the issue of entitlement or amount of expenses of this motion, they may make a written request for a determination of these issues within 30 days of the date of this order.

August 27, 2007

Joyce Miller Arbitrator

Date

Financial Services Commission of Ontario