Bradley Michael Mulhall v. Wawanesa Mutual Insurance Company, 2007 ONFSCDRS 197

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 197

Appeal P06-00002

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BRADLEY MICHAEL MULHALL Appellant

and

WAWANESA MUTUAL INSURANCE COMPANY Respondent

BEFORE: Nancy Makepeace

REPRESENTATIVES: David Zarek for Mr. Mulhall Ian D. Kirby for Wawanesa

HEARING DATE: January 12, 2007.

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is dismissed and the arbitrator’s order dated December 16, 2005 is confirmed.

2. 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.

October 15, 2007

Nancy Makepeace Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

On December 16, 2005, the arbitrator ordered Wawanesa Mutual Insurance Company (“Wawanesa”) to pay Mr. Mulhall a non-earner benefit of $185 per week from September 18, 2001 to August 31, 2002 under section 12 of the SABS–1996,¹ plus interest under subsection 46(2). Mr. Mulhall appeals the arbitrator’s refusal to award ongoing non-earner benefits after August 31, 2002.

I am not persuaded the arbitrator erred.

II. BACKGROUND

There was no dispute about the facts at the arbitration hearing, though the parties disagreed about their implications for Mr. Mulhall’s entitlement to benefits.

Mr. Mulhall was injured in an accident on March 18, 2001. He claimed non-earner benefits (“NEBs”), under subparagraph 12(1)3.i of the SABS-1996, on the basis that he “suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.” Pursuant to clause 12(7)(a), the insurer was not required to pay a benefit for the first 26 weeks of his disability. That period ended on September 18, 2001. The insurer refused Mr. Mulhall’s claim for benefits after that date. The parties were unable to resolve their dispute at mediation, and Mr. Mulhall applied for arbitration of the dispute, claiming NEBs of $185 between September 18, 2001 and March 18, 2003 (the 104-week point) under subsection 12(2) of the SABS-1996, and benefits of $320 per week ongoing after that date under subsection 12(3).

There was no dispute Mr. Mulhall suffered a serious brain injury as a result of the accident. He was taken by ambulance to Oshawa General Hospital, where a CT scan showed a skull fracture, deformation of the brain in the left temporal and left parietal lobes, and a subdural hematoma. He was transferred to St. Michael’s Hospital the same day, where he remained in intensive care for 5 weeks. On March 26, 2001, eight days after the accident, parts of his skull and temporal and parietal lobes were removed to relieve intracranial pressure. The removed section of the skull was restored in another operation on April 19, 2001. Mr. Mulhall was discharged to Bloorview MacMillan Children’s Centre on May 15, 2001, and discharged home on July 27, 2001, a little more than four months post-accident.

There was no dispute that Mr. Mulhall’s brain injury left him with permanent impairments. The dispute was about whether he has suffered a “complete inability to carry on a normal life,” as that phrase is defined in subsection 2(4):

. . . a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

The insurer claimed that Mr. Mulhall’s accident-related impairments did not continuously prevent him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. This required the arbitrator to identify those activities and determine whether Mr. Mulhall’s impairments continuously prevent him from engaging in substantially all of them.

The arbitrator heard from eight witnesses over five days of hearing. Mr. Mulhall testified, as did his father, Michael Mulhall. Mr. Mulhall also called Roberta Cullingham (a Child and Youth Worker who co-coordinated rehabilitation services for him), Dr. Peter Rumney (a pediatrician with expertise in the rehabilitation of children with acquired brain injuries, who treated him at Bloorview Macmillan Children’s Centre), Dr. Ronnie Lo (his family doctor), and Dr. Andy Cancelliere (a neuropsychologist with experience in acquired brain injuries in youths and adults, who assessed him at his solicitor’s request). The insurer called Dr. Anthony Hunt (a neuropsychologist with expertise in the behavioural expression of brain dysfunction) and Dr. Ross Roussev (a neurologist), both of whom assessed Mr. Mulhall at the insurer’s request.

The arbitrator accepted that Mr. Mulhall continued to suffer a complete inability to carry on a normal life on September 18, 2001.

Before the accident, the most important aspects of his life were his busy social life and his favourite sports of skateboarding, “freestyling” on his BMX, and snowboarding. True, he had planned to return to Durham Alternative Secondary School, but school was not high on his list of priorities, before the accident. In September 2001, Mr. Mulhall was about to return to school and had demonstrated some independence, but the evidence does not indicate that he had resumed any of the activities that were high on his list of priorities, with anything approaching pre-accident quality.²

However, the arbitrator found that by September 2002, a year later, Mr. Mulhall no longer suffered a complete inability to carry on a normal life. In reaching this conclusion, the arbitrator considered expert evidence, especially the results of neuropsychological testing, but focused especially on a comparison of Mr. Mulhall’s school, work, and social and recreational activities before and after the accident. He concluded that by September 2002, Mr. Mulhall “had resumed quality participation in enough of his pre-accident activities that he was no longer prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.”³

Mr. Mulhall appeals. He claims the arbitrator erred in law in reaching a conclusion unsupported in evidence or law. In particular, he claims that the arbitrator failed to give adequate regard to evidence about the severity of his brain injury or the quality of his engagement after the accident in his activities of normal life, including school, work, and social and recreational activities. The insurer takes the position that the arbitrator’s decision was correct in law and well supported on the evidence.

III. ANALYSIS

Mr. Mulhall’s strongest challenge is to the arbitrator’s finding that his poor post-accident neuropsychological test results could not be “attributed solely’ to his injuries. Mr. Mulhall was not required to prove that the accident was the only cause of his poor test results. He was required to prove that the accident significantly contributed to an impairment that “continuously prevents” him from engaging in substantially all the activities in which he ordinarily engaged before the accident.⁴ However, reading the decision as a whole, I am satisfied that the arbitrator asked himself the right question. For example, immediately following the comment about the test results, the arbitrator stated:

In any event, for a finding of complete inability to carry on a normal life, poor performance on the tests must be reflected in diminished performance in daily living.

After describing the accident, and Mr. Mulhall’s injuries and treatment, the arbitrator considered, first, Mr. Mulhall’s progress after his discharge from Bloorview in July 2001, and then, his pre-accident life. His analysis focused on a comparison of Mr. Mulhall’s ability to engage in his activities of daily living before and after the accident. This is the approach mandated by subsection 2(4) of the SABS-1996, which defines “complete inability to carry on a normal life” in terms of the activities in which the person ordinarily engaged before the accident. The question is functional as well as medical. For the same reason, I find no error in the following statement:

The experts who opined on the issue agree that it is not possible to predict from the physical injury, the degree of impairment that Mr. Mulhall would suffer. There are a range of possible results which, when manifested, may be attributed to the brain injury. I accept that opinion.⁵

Determining the degree of impairment and its affect on activities of normal life was made more difficult in this case because of Mr. Mulhall’s age. The arbitrator recognized this problem and approached it in the following way:

Since Mr. Mulhall was 17 years old at the time of the accident, his life was not static. His post-accident activities must therefore be measured against his pre-accident potential and trajectory.⁶

Again, I find there was no error in the arbitrator’s approach, which accords with the focus on the claimant’s pre-accident activities of normal life in subsection 2(4) of the SABS-1996.

Nor am I persuaded that the arbitrator failed to consider the quality of Mr. Mulhall’s engagement in his activities of normal life. The arbitrator began his analysis by setting out the established approach, adopting the following statement by Arbitrator Kominar in Cook and Pilot Insurance, (FSCO A03-001085, May 9, 2005), at p. 8:

Arbitrators and judges have clearly articulated that “normal life” cannot be simplistically reduced to a list of discrete activities which can then be summed up in two columns – Can Do/Can’t Do – to determine if the applicant is continuously prevented from engaging in “substantially all” of them. The test, in other words, is not solely quantitative.⁷ Arbitrator Sandomirsky states in Da Ponte and Motor Vehicle Accident Claims Fund:

[“engaging in”] means more than isolated post-accident attempts to perform activities that an applicant was able to perform prior to the accident. The manner in which an activity is performed, or the quality of the performance, must also be considered. If the degree to which an individual can perform an activity is sufficiently restricted, it cannot be said that they are truly “engaging in” the activity. The activity must be viewed as a whole and should not be broken down into its constituent parts. An applicant who is merely “going through the motions” cannot be said to be “engaging in” an activity.⁸

As I read the decision, the arbitrator’s approach throughout was to consider whether Mr. Mulhall’s accident-related impairments continuously prevent him from engaging meaningfully in school, work, and social and recreational activities after the accident.

Turning first to school, Mr. Mulhall claims the arbitrator failed to give adequate regard to the nature of his school and college programs after the accident, which he considered to be non-competitive, and to the continuing involvement of a Child and Youth Worker arranged and paid for by the insurer. He also objects to the arbitrator’s finding that he could have benefited from such a program before the accident.⁹ He claims there was no evidence for such a finding and in any event it would not preclude a finding that the accident significantly contributed to his need for the program after the accident.

I accept that a poor pre-accident academic record does not preclude entitlement if accident-related impairments continuously prevent the claimant from pursuing education in a meaningful way. Because of the importance of education in a young person’s life, inability to continue because of accident-related impairments will generally be given significant focus in determining NEB entitlement.

However, the arbitrator spent considerable time discussing Mr. Mulhall’s pre- and post-accident academic record, and I am not satisfied he erred in reaching the conclusion he did. Mr. Mulhall does not dispute the arbitrator’s factual findings about his pre-accident school record, which included the following:

• Mr. Mulhall’s father testified “there were attendance and behavioural problems, usually associated with . . . talking back to teachers.”¹⁰
• “At the time of the accident, Mr. Mulhall was not attending school. He had been expelled in the fall of 2000 as a result of a verbal altercation with the principal.”¹¹ He was scheduled to start at Durham Alternative Secondary School, which caters to students with a history of problems at other schools.¹²
• Mr. Mulhall’s school records show “a pattern of poor performance, lack of effort, and lack of ability to focus, starting at Junior Kindergarten.”¹³
• Because of difficulties in Grade 7, Mr. Mulhall was given a standardized academic test. As a result, it was recommended that receive special education support and attend a learning strategies program. He did attend this program in Grades 7 and 8, and was identified as needing the support of an academic resource teacher on entering high school.¹⁴
• According to the arbitrator, “[Mr. Mulhall’s] Grade 11 Individual Education Plan identifies written language, organization, reading comprehension and self-esteem as areas for growth. Recommended strategies include allowing extra time for assignments, shortening assignments to coincide with attention span, reducing amount of homework, instructing in self-monitoring and combining written instructions with oral instructions. It does not appear that Mr. Mulhall was taking advantage of this resource when he last attended school, before the accident. His evidence was that teachers would sometimes send him to Learning Strategies class, but they did not like to do that because, when they did, he would just leave school.”¹⁵
• “Mr. Mulhall testified that there were some courses that he liked. However, there were none in which he excelled. Of the 20 high school courses taken before the accident, Mr. Mulhall scored D’s in 13, C’s in 2 and he failed 5. He was failing in every course, when he was expelled. He was often not in school at all and his parents would not find out until the report card came. He would leave for school but hang out with friends instead of attending. They would go to the community centre and play games, go to a pool hall, or hang out in the woods or at a friend’s house.”¹⁶

The arbitrator considered the expert evidence about Mr. Mulhall’s neuropsychological impairments, but discounted opinions to the extent that they failed to compare his post-accident test performance against his pre-accident performance. The arbitrator noted that the test results produced by Dr. Cancelliere, who assessed Mr. Mulhall at his solicitor’s request, were “generally consistent” with the tests done by Dr. Hunt, who assessed him for the insurer. Moreover,

Dr. Cancelliere noted that Mr. Mulhall’s tested academic scores “became progressively stronger across the assessments, with reading, spelling and arithmetic improving from quite impaired in July 2001, to low average or approaching average levels in 2003.”¹⁷ In any event, there was no dispute in this case that Mr. Mulhall suffered permanent impairments as a result of the accident; the issue was whether his impairments continuously prevent him from engaging in his activities of normal life.

In my view, the arbitrator overstated Mr. Mulhall’s post-accident performance when he said that Mr. Mulhall’s “post-accident high school marks were significantly higher than pre-accident, with no failures,”¹⁸ and that Mr. Mulhall became “the first college graduate in his family” when he completed the college program in December 2004.¹⁹ As the arbitrator noted:

The Seneca calendar describes the program as designed for students with learning difficulties. It is intended to assist in the development of academic skills, as well as skills for both independent living and working. Mr. Mulhall again had the assistance of Child and Youth Worker during all school hours.²⁰

Nonetheless, the fact is that Mr. Mulhall completed the high school and college programs, and there was no evidence that he would have been able to complete similar or more ambitious programs had the accident not occurred. Indeed, the evidence of his pre-accident school record went strongly the other way, and there was ample evidence for the arbitrator’s finding that school was never important to Mr. Mulhall. I am not persuaded the arbitrator erred when he concluded that by September 2002, “Mr. Mulhall was back on a trajectory that was not wholly inconsistent with his pre-accident potential.”²¹

The employment picture was similar. As part of the college program, Mr. Mulhall completed a placement in a cycle shop, but was not offered a job at its completion. In early 2005, after finishing the college program, he quit a job at a window assembly plant when he was moved from assembly to packaging. He started working part-time as a janitor just before the arbitration hearing began in August 2005.

The arbitrator was not persuaded Mr. Mulhall’s post-accident job history proved him to be unemployable. He found the jobs were consistent with Mr. Mulhall’s pre-accident employment potential. Mr. Mulhall had quit a dishwasher job after about five weekends two years before the accident, but liked working with his father in a family business moving heavy machines for the garment industry. The arbitrator concluded that Mr. Mulhall’s best employment prospects before the accident were with his father:

Were that option still available in 2002, I am satisfied that Mr. Mulhall could have taken advantage of it. Mr. Mulhall saw his best chance for employment where there was no competition. Mike Mulhall did testify that one has to be certified to become a machine mover, but there was no evidence that he would require his son to be so qualified, before offering further employment, or that Mr. Mulhall had the math skills necessary to acquire certification. ²²

Mr. Mulhall claims the arbitrator erred by determining his pre-accident employment potential based on a brief job held as a dishwasher at the age of 15 and evidence of his “hanging out” with his friends, which he characterized as a normal high school activity. In addition, he submits the arbitrator erred by disregarding his father’s testimony that after the accident, he would not be able to do the job he had done before the accident, if the business had not gone under as a result of the accident, and by disregarding evidence that he could not perform some tasks at the cycle shop.

Mr. Mulhall’s age and very limited employment history made assessing his employment prospects difficult. The arbitrator considered Mr. Mulhall’s pre-accident employment history, his limited options based on his school records, and his demonstrated ability to work after the accident. This was the best evidence available, and it painted a consistent picture: Mr. Mulhall was demonstrably not unemployable after the accident, and he was likely to have worked in similarly unskilled jobs if the accident had not occurred.

Underlying the arbitrator’s reasons with respect to school and work was the arbitrator’s assessment that but for the accident, Mr. Mulhall would likely have done “what he most liked to do: hang out with his friends.” ²³ Mr. Mulhall submits that the arbitrator erred by disregarding the evidence that he suffered from “frontal lobe syndrome,” and required ongoing structure and supervision after the accident to maintain independent living, beyond any assistance that might have benefited him before the accident. He claims that impulsivity, poor safety awareness and poor judgment resulting from his brain injury led to his assault charge after the accident. The arbitrator found that “alcohol consumption and an outburst of temper” were “the more likely cause” and that “both were evident before the accident.” However, there was uncontroverted evidence that Mr. Mulhall had a pre-accident history of alcohol consumption and problems with authority figures.

On a related point, Mr. Mulhall submits that the arbitrator erred in law by choosing August 31, 2002 as the termination date for his benefits. The arbitrator stated:

I find that by September 2002, Mr. Mulhall no longer suffered a complete inability to carry on a normal life. By that time, in addition to his successful return to school, Mr. Mulhall had ceased taking Dilantin so that he could resume his pre-accident social life without that restriction.²⁴

The arbitrator heard evidence that Mr. Mulhall had resumed using alcohol no later than January, 2002, though he had been advised not to drink while taking Dilantin for his accident-related seizures:

[Mr. Mulhall] testified that he hated the Dilantin and did not think that he needed it. If he took it, he would be drunk after one beer and his friends could not calm him down. He would be too hyper. It made him feel lazy, in a fog. Without it, he had more energy and was more affectionate with his mother. If he took it and went out, he would be all worn out the next day.

He started not taking it if he was going out. In November 2002, he reported to Dr. Rumney that he had tapered his dose in August and stopped altogether in September. There have been no adverse effects. He reported that his alcohol tolerance had increased as a result, although it had not returned to pre-accident levels. He told Dr. Cancelliere in October 2005, that his practice is to have six or seven beers every Friday and Saturday night. Mr. Mulhall has also returned to smoking the occasional “joint”, down from every couple of days, as he did before the accident. ²⁵

The arbitrator’s reasoning falls short of the ideal on this point because he does not seem to have considered whether Mr. Mulhall’s brain injury exacerbated his pre-accident behavioural problems. As well, he does not seem to have considered whether Mr. Mulhall’s behaviour amounted to non-compliance with clause 55(1)(b) of the SABS-1996, which states that an insured person entitled to non-earner benefits “shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary” to “shorten the period during which the benefit is payable.” In the case of non-compliance, subsection 55(5) allows the insurer to stop the benefit after giving notice of intention to do so, if the insured person has not complied in ten business days. There was no evidence in this case that the insurer gave the required notice under subsection 55(4).

There would be more cause for concern if Mr. Mulhall’s decision to stop Dilantin were the only basis for the arbitrator’s selection of August 31, 2002 as the benefits termination date. However, after making the disputed statement noted above, the arbitrator continued by stating that by September 2002, Mr. Mulhall:

was also getting around on his bicycle, had demonstrated that he could use public transit and had long been independent with regard to self-care. He was back to playing pool, was dating, going to parties and bars, playing video games and watching videos with friends. His important social life was largely intact and he was doing well in school. He had resumed quality participation in enough of his pre-accident activities, that it could not be said that he was completely unable to carry on a normal life.²⁶

At the end of his decision, the arbitrator recognized that Mr. Mulhall had “lost the ability to engage in the important pre-accident activities of skateboarding, snowboarding and ‘freestyling’,” but continued to do “what he most liked to do: hang out with his friends,”²⁷ and indeed, “his important social life was largely intact.”²⁸ By September 2002, the arbitrator concluded that Mr. Mulhall “had resumed quality participation in enough of his pre-accident activities, that he was no longer prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.”²⁹

I have some sympathy for what I take to be Mr. Mulhall’s underlying concern in this appeal – that the arbitrator may have discounted the severity of his accident-related impairments and their effect on his activities of daily living because of an impression that he had little potential before the accident. He urges me to find that he is entitled to ongoing NEBs on an indefinite basis. Alternatively, he claims benefits to a later date, noting that he finished high school in February 2003 and finished college in December 2004, and the services of the Child and Youth Worker were terminated in June 2005.

As Director’s Delegate Draper stated in Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company, “the determination of disability cannot be done with absolute precision.” That is because determining entitlement does not depend only on objective medical evidence but requires an individualized assessment about the effect of an injury on a particular claimant. Therefore, though an arbitrator’s entitlement finding must be based on the tests established in the SABS, the arbitrator must be given some flexibility to determine the duration of entitlement based on consideration of the evidence as a whole.³⁰ I agree with that principle, and also with Director’s Delegate McMahon’s restatement of it in Lombardi and State Farm Mutual Automobile Insurance Company:

It may be possible, as part of the type of post facto examination conducted in an appeal, to identify a particular error that calls for the order to be set aside. But as a general comment, the period over which the person is entitled to benefits should be made on the basis of the evidence as a whole and, as noted in Pisani, the arbitrator must be given a fair bit of flexibility to fashion a result that is fair based on that evidence.”³¹

In this case, I am not persuaded there is any basis for me to second-guess the arbitrator’s conclusion, which was based on his assessment of the totality of the evidence. As I read the decision, the arbitrator weighted Mr. Mulhall’s activities of normal life in terms of their demonstrated importance to him before the accident: social and recreational activities were important, school and work were not. There was ample evidence that this was the appropriate weighting.

Finally, Mr. Mulhall submits that by refusing to award NEBs beyond August 31, 2002, the arbitrator disregarded Walker v. Ritchie, 2005 CanLII 13776 (ON CA), [2005] O.J. No. 1600, in which the Court of Appeal made the following comments about non-earner benefits:

On a plain reading of these provisions, it appears that NEBs are awarded to compensate for loss of daily life functions and therefore are more akin to general non-pecuniary damages. While s. 12(4) entitles an insurer to deduct payments for loss of income from NEBs, there is nothing in s. 12 to suggest that benefits are in any way related to loss of income. Section 12 provides a flat rate of benefits that is not tied in any way to past or future income loss or earning capacity. Rather than serving as a proxy for income replacement, NEBs provide a benefit for those persons unable to engage in the activities in which they would ordinarily have engaged but for the accident. That is, NEBs are designed to compensate for loss of enjoyment of life.

The context of the final sentence in that paragraph is the Court’s ruling that NEBs are not deductible under subsection 267.8(1) of the Insurance Act because they are not “payments for income loss or loss of earning capacity.” The arbitrator did not err in finding this was different from the issue before him. Though in my view the arbitrator put too great a focus on the factual distinctions between the two cases, he did not err in stating that the Court of Appeal “shed no light on the issue of what degree of function must be lost, before finding complete inability to carry on a normal life.”³²

IV. 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.

October 15, 2007

Nancy Makepeace Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Arbitration decision, pp. 18-19.
3. 3Arbitration decision, p. 21.
4. 4The significant contribution test has been applied to accident-related exacerbation of pre-accident impairments in McMichael and Belair Insurance Company Inc., (FSCO A02-001081, March 2, 2005), conf’d on appeal, (FSCO P05-00006, March 14, 2006), application for judicial review dismissed, [2007] CanLII 17630 (Ont. Div. Ct.) and many other arbitration and appeal decisions.
5. 5Arbitration decision, p. 18.
6. 6Arbitration decision, p. 18.
7. 7See the decision of Justice Brockenshire in Walker v. Ritchie, 2003 CanLII 17106 (ON SC), [2003] O.J. No 18, as well as the decision of Arbitrator Sandomirsky in Da Ponte and Motor Vehicle Accident Claims Fund, (FSCO A01-000486, October 28, 2002). [footnote in original]
8. 8Da Ponte and MVAC, at p. 5. [footnote in original] See also, for example, Todd and State Farm Mutual Automobile Insurance Company, (FSCO A00-001314, November 25, 2003), at p. 5, and the cases cited therein.
9. 9Arbitration decision, p. 19.
10. 10Arbitration decision, p. 10.
11. 11Arbitration decision, p. 10.
12. 12Arbitration decision, p. 13.
13. 13Footnote omitted, arbitration decision, p. 10.
14. 14Arbitration decision, p. 11.
15. 15Arbitration decision, p. 11.
16. 16Arbitration decision, p. 10.
17. 17Arbitration decision, p. 15.
18. 18Arbitration decision, p. 6.
19. 19Arbitration decision, p. 6.
20. 20Arbitration decision, p. 6.
21. 21Arbitration decision, p. 19.
22. 22Arbitration decision, p. 10.
23. 23Arbitration decision, p. 20.
24. 24Arbitration decision, p. 19.
25. 25Arbitration decision, p. 9.
26. 26Arbitration decision, p. 19.
27. 27Arbitration decision, p. 20.
28. 28Arbitration decision, p. 19.
29. 29Arbitration decision, p. 21.
30. 30(OIC P-003929 and P-005693, December 11, 1995), followed in, for example, Edwards and State Farm Mutual Automobile Insurance Company, (OIC P-001707, February 26, 1996), Puopolo and Wellington General Insurance Company, (OIC P-006445, July 25, 1996), Pinto and General Accident Assurance Company of Canada, (OIC P97-00031, November 26, 1997), Lopez and State Farm Mutual Automobile Insurance Company, (FSCO P98-00031, September 20, 1999), Thompson and Peel Mutual Insurance Company, (FSCO P97-00051, November 30, 1999), Lazareva and Royal Insurance Company of Canada, (FSCO P9-00031, December 17, 1999), and Ms. Z and Dominion of Canada General Insurance Company, (FSCO P00-00023, February 14, 2003).
31. 31(FSCO P01-00022, February 26, 2003), at p. 11.
32. 32Arbitration decision, p. 21.