Neutral Citation: 2007 ONFSCDRS 225 FSCO A07-001355

BETWEEN:

SHARON ABLETT Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

PRE-HEARING DECISION

Before: Arbitrator Lawrence Blackman Heard: November 7, 2007, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Mr. Steven Polak for Ms. Ablett Ms. Jane Cvijan for Dominion of Canada General Insurance Company

Issues:

The Applicant, Sharon Ablett, was injured in a motor vehicle accident on June 1, 2006. She applied for statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ Issues arose between the parties as to the Applicant’s entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Ms. Ablett 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 discussion in this matter was held before me on November 7, 2007. The parties were able to agree on all procedural matters, other than the following issue:

When should the arbitration hearing in this proceeding be scheduled?

Result:

The arbitration hearing in this case is scheduled for Monday, April 7, Tuesday, April 8, Wednesday, April 9, and Thursday, April 10, 2008, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in Toronto.

EVIDENCE AND ANALYSIS:

In issue in this proceeding is Ms. Ablett’s entitlement to income replacement benefits (“IRBs”). The Applicant requested an early arbitration hearing date for sometime in February 2008, as she has been without such weekly benefits for more than a year.

The Financial Services Commission of Ontario (“FSCO”) has available hearing days in the coming weeks and months, and has complete availability for hearings anytime after the week of February 18, 2008. The Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the “Code”), states that:

Dates for holding an oral arbitration hearing will be available to the parties within 4 to 6 months from the conclusion of the pre-hearing discussion. [emphasis in the original]

The pre-hearing discussion in this matter has now concluded.

Dominion states that it has brought, earlier this year, a motion before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) pursuant to subsection 31(1) of the Workplace Safety and Insurance Act, 1997, c. 16, Sched. A, for a determination, as I understand it, as to whether Ms. Ablett is entitled to claim benefits under the Schedule and whether her right to commence this arbitration proceeding has been taken away.

The parties agree that the WSIAT hearing is not likely to take place before July 2008. The parties further agree that if Dominion is unsuccessful in its WSIAT motion and the FSCO hearing is set after the release of the WSIAT decision, one is looking at a FSCO arbitration hearing sometime in 2009.

Dominion submits that it would be prejudiced in having a FSCO hearing set before 2009 as it would incur unnecessary legal expenses should the WSIAT motion be decided in its favour. The Insurer, therefore, submitted that the FSCO arbitration hearing be set in 2009, or, in the alternative, that this pre-hearing discussion be resumed upon release of the WSIAT decision. Dominion was not prepared to propose or agree to any conditions being placed on putting this matter over more than a year.

In addition to arguing the prejudice to her putting this matter put on hold while no IRBs are being paid, Ms. Ablett submitted that an early hearing date should be granted on the basis of, inter alia:

the strength of her legal argument before WSIAT;
that the third party tortfeasor has not joined in the WSIAT motion;
that mediation accepted her Application and would not adjourn the matter; and,
that the Senior Arbitrator would not adjourn the pre-hearing discussion.

I find none of these latter four arguments persuasive. I am not persuaded, especially solely on the submissions of counsel, that it is appropriate for me to prejudge the merits of a matter before another tribunal, nor to speculate on the motives of the third party (likewise, I give no weight to the Insurer’s arguments, without any evidentiary support, as to the alleged weaknesses in the Applicant’s case). In addition, prior scheduling decisions which may have been made by either Mediation or by a Senior Arbitrator are in no way binding upon me.

Setting hearing dates is a matter of the proper arbitral exercise of discretion. I am persuaded that the correct criteria in this regard are fairness and the balance of prejudice. Dominion’s submissions are restricted to the potential prejudice of possibly having to pay unnecessary legal expenses. Otherwise, they make no argument that there is any unfairness in proceeding to a timely hearing (my having reducing the time for the Applicant to comply with her undertakings from her requested 70 days down to 40 days). The Applicant, as noted above, argues that the prejudice to her is being required to wait more than a year without any weekly benefits to get to a hearing, having already been more than a year without such payments.

I am persuaded that the balance of prejudice favours the Applicant. This adjudicative system is meant to achieve a fair, expeditious and cost efficient resolution of first party automobile disputes, as stated in Rule 1 of the Code. This automobile insurance system also has as an objective that first party insureds be paid on a timely basis, as evidenced by the time lines applicable to insurers set out in the Schedule. This system also has as a goal that first party insureds not be deprived of benefits where there are disputes as to which insurer or system of compensation has responsibility for payment.

In this regard, Ont. Reg. 283/95 – Disputes Between Insurers, as amended, O.Reg. 305/98 provides that the first insurer that receives a completed application for benefits is responsible for paying benefits to an insured person pending the resolution of any dispute as to which insurer is required to pay benefits under section 268 of the Insurance Act.

More directly on point, section 59 of the Schedule addresses Workers’ Compensation Benefits. The provision states that an insurer is not required to pay benefits under the Schedule if, as a result of an accident, the insured is entitled to benefits under any worker’s compensation law or plan. However, the section does not apply where an insured elects to bring an action, as long as the election is not made primarily for the purpose of claiming benefits under the Schedule. Ms. Ablett submits that although it was not necessary, she has signed an assignment to Dominion, under subsection 59(5) of the Schedule, of any benefits under the workers’ compensation law or plan to which she may become entitled as a result of the accident.

Dominion confirms that the parties are now in a pay pending situation, meaning it will continue to pay benefits in accordance with the Schedule pending the determination of the WSIAT motion. Accordingly, Dominion has paid sixteen weeks of IRBs as well, as noted by the Report of Mediator herein, having agreed to pay approximately $8,000 in various medical benefits under section 14 of the Schedule. Dominion further states that it will continue to adjust the file and pay such further benefit as are required based on further or new information coming to its attention.

If the present WSIAT motion does not affect the Applicant’s entitlement rights under the Schedule or her right to the continued adjusting of the file, I am not persuaded that her right as a party to this proceeding to early resolution of her dispute, as mandated by the Code, is adversely affected either. However, this right is subject also to considerations of fairness, common sense and cost and time efficiency.

If one was confident that WSIAT was to render a decision at about the same time as the timely hearing dates being considered, that would call for an obvious reconsideration. However, in this case, no hearing date has yet been set by WSIAT, and the parties do not anticipate that any decision would be forthcoming from WSIAT until the fall of 2008 and that the FSCO arbitration hearing, if it proceeded, would be held sometime in 2009.

Given the prejudice to the Applicant in so delaying this proceeding, the discretion of a hearing arbitrator in addressing legal expenses, Dominion’s failure to suggest any terms to ameliorate the prejudice to Ms. Ablett, the intention of the legislation for timely payments, timely dispute resolution and avoiding having insureds fall within the cracks of a complex insurance scheme, I am persuaded that to delay the FSCO hearing until 2009, as requested by the Insurer, would be simply unfair and unjust.

Given the time frames for the various undertakings given at the pre-hearing discussion, as well as the notice time lines set out in the Code, I was persuaded that a March 2008 hearing was appropriate. The respective schedules of counsel, however, made an April 2008 hearing date necessary.

Accordingly, the arbitration hearing in this case is scheduled for Monday, April 7, Tuesday, April 8, Wednesday, April 9, and Thursday, April 10, 2008, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in Toronto.

As indicated, should there be a change in circumstances, a further motion may be made regarding the scheduling of this hearing.

EXPENSES:

No submissions were received regarding legal expenses, and no order is made in this regard at this time.

November 16, 2007

Lawrence Blackman Arbitrator

Financial Services Commission of Ontario