Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 37

FSCO A05-002530

BETWEEN:

HASSANE EL-ZEIN

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Lawrence Blackman

Heard:

February 1, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received by January 23, 2007.

Appearances:

Mr. Richard J. Worsfold for Mr. El-Zein

Mr. Seth Kornblum for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Hassane El-Zein, was injured in a motor vehicle accident on January 24, 2002. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ The parties were unable to resolve through mediation the Applicant's entitlement to certain benefits. Mr. El-Zein, therefore, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

During the pre-hearing process, a preliminary jurisdictional issue was separated from the substantive issues. In correspondence dated December 28, 2006, the Pre-Hearing Arbitrator set out the final recitation of the preliminary issue as whether Mr. El-Zein was precluded from proceeding to arbitration on certain claims. The Arbitrator's prior letter of July 14, 2006 specified that the preclusion was claimed pursuant to paragraph 50(1)(a) and/or section 51 of the Schedule. Neither letter referred to section 38 of the Schedule as a basis for the motion.

After some preliminary discussion, the parties agreed that the preliminary issue before me was:

Is Mr. El-Zein, as a result of non-compliance with sections 38 and 50(a) of the Schedule, precluded from proceeding to arbitration on the following ten medical expenses:

– $225.04 (US) for prescription expenses incurred on May 27, 2002 in Lebanon;

– $280.00 for chiropody treatment provided by Bill Dedes on March 14, 2002;

– $120.00 for massage therapy provided by Nature Pain Therapy from January 25 to 30, 2002;

– $48.15 for massage therapy provided by Sunsplash on February 1, 2002;

– $200.00 for massage therapy provided by the Koya Clinic on February 13 and 15, 2002;

– $3,556.85 for massage therapy provided by the Beresford Spa @ the Pier from February 3, 2002 to February 26, 2003;

– $720.00 (US) for massage therapy provided by MEH from June 15 to September 15, 2002 in Lebanon;

– $1,200.00 (US) for physiotherapy provided by Maamoun Naboulsi from May 28, to September 18, 2002 in Lebanon;

– $583.00 (US) for psychiatric treatment provided by Imad Basha from June 14 to September 19, 2002 in Lebanon; and,

– $1,126.00 for personal trainer expenses for services provided by Ned Lovenysk from March 13, 2002 to February 12, 2003?

Result:

Mr. El-Zein is not precluded from proceeding to arbitration on the said expenses.

EVIDENCE AND ANALYSIS:

Based on the parties' Agreed Statement of Fact and the Exhibits filed, I find the following:

Mr. El-Zein was involved in a motor vehicle accident on January 24, 2002. At the time of the accident, Mr. El-Zein was insured with Wawanesa.
Between February 24, 2002 and July 28, 2003, Mr. El-Zein submitted various treatment plans and underwent two separate Designated Assessment Centre (DAC) assessments.
Mr. El-Zein's chiropractor, Dr. J. Labelle, prepared a Treatment Plan dated February 24, 2002. The estimated cost of the plan was $2,500 for three months of chiropractic treatment (three times a week for six to eight weeks, then twice a week for four weeks), including spinal manipulation, manual traction, and ultrasound.
By Explanation of Benefits Payable by Insurance Company ("Explanation") dated April 3, 2002, Wawanesa stated that it would not consider massage therapy expenses of $1,116.90 (the provider for which is not identified). There was no apparent objection to medication expenses of $10.13, which are also noted on the Explanation.

It is agreed that Wawanesa advised Mr. El-Zein it could not consider the refused invoice as a completed treatment plan had not been provided. Wawanesa enclosed a blank Treatment Plan which it asked Mr. El-Zein to complete for its consideration. The Insurer's Explanation does not advise as to the time period within which the plan is required or the statutory consequences of non-compliance.

Mr. El-Zein's family doctor, Dr. D. Williams, prepared a Treatment Plan dated April 16, 2002 for four to six months of physiotherapy and massage therapy, as well as chiropractic treatment (the latter being set out in an attachment which was not filed as an exhibit and was not before me) and a referral to a rehabilitation medicine specialist.
By letter dated April 23, 2002, Dr. Williams recommended that for the next two months Mr. El-Zein (as he had for the prior three months) pursue, amongst other modalities, physical therapy two or three times a week, massage therapy with a certified massage or shiatsu therapist twice a week or so, chiropractic treatment outlined in Dr. Labelle's treatment plan and the regular use of anti-inflammatory medication.
Wawanesa wrote Mr. El-Zein by letter dated June 17, 2002. An Explanation of the same date indicates that Wawanesa was not considering payment of $797.15 for receipts from Beresford as it had not received a treatment plan for this treatment. The Explanation asked that an attached (unidentified, but presumably Treatment Plan) form be completed for consideration. The Explanation did not advise as to the time period within which the form was required or the statutory consequences of non-compliance.
Dr. Williams wrote a prescription dated October 1, 2002 for a further three months of physiotherapy, chiropractic and massage therapy treatment as well as a personal trainer. The note indicates a recurrence of symptoms after Mr. El-Zein's trip to Lebanon.
Dr. Williams prepared a further Treatment Plan dated October 22, 2002 for four to six months of physiotherapy and massage therapy, as well as a referral to a psychiatrist for depression. The Treatment Plan also refers to attached rehabilitation medicine and chiropractic plans, which were not filed as exhibits and the contents of which are unknown.
By letter dated November 14, 2002, Wawanesa wrote both Mr. El-Zein and his counsel. Relevant to the issue before me, Wawanesa indicated it had not received a completed treatment plan as required by section 38 of the Schedule regarding $1,706.40 for Beresford, $2,728.36 (US) for expenses incurred in Lebanon, $648.15 in miscellaneous (unidentified) expenses and $805 for a personal trainer.

The letter did not use the prior Explanation form. The letter indicated that previously incurred treatment would not be considered as the Applicant had not complied with Section 38 of the Schedule. Five treatment plans were provided for consideration of future treatment. Wawanesa did not provide Mr. El-Zein with any information in this letter as to how he might rectify the situation, nor did it indicate that any rectification would be allowed. No information was provided in this letter as to the statutory consequences of non-compliance regarding section 50 of the Schedule.

On December 11, 2002, Ms. D. Thain, a massage therapist with Beresford, issued a Treatment Plan estimating a further eight weeks of massage therapy at an estimated cost of $1,112.80.
On July 28, 2003, Dr. Labelle issued a Treatment Plan prescribing twelve treatments of Swedish massage therapy, to be followed by further evaluation.
Mr. El-Zein continued with chiropractic treatment, physiotherapy and massage therapy throughout 2002 and 2003.
The parties agree that regarding treatment allegedly incurred, Mr. El-Zein submitted the following invoices without accompanying treatment plans:

(a) Beresford from February to May 2002, November 2002 to March 2003 and May to June 2003;

(b) treatment in Lebanon between May 27 and September 18, 2002; and,

(c) the Koya Clinic, Bill Dedes, Ned Lovenysk, massage therapy with Natural Pain Therapy Centre Inc. and Joseph Alexander in 2002, and various prescriptions.

The Exhibit Book sets out 85 pages of invoices. The parties did not indicate when these items were submitted nor that there was any further responses from Wawanesa.

As a result of Wawanesa's denial to pay certain benefits, Mr. El-Zein filed for mediation on April 15, 2003.
On or about July 12, 2006, Mr. El-Zein, through his counsel, submitted to Wawanesa further (unidentified) invoices regarding treatment during the period March 7, 2002 to May 29, 2006, but did not submit any additional treatment plans.

Wawanesa's Submissions

Wawanesa submits that Mr. El-Zein is precluded from claiming the expenses noted by failing to provide treatment plans as required by section 38 of the Schedule. Wawanesa accepts that it bears the onus of proof.

There have been several significant changes to the Schedule since this accident. At the hearing, the parties agreed that the relevant Schedule was that which was in effect at the time of the January 24, 2002 accident. Unfortunately, the Insurer's Factum cites the current provisions of the Schedule, and specifically subsection 38(1.1) which was effective March 1, 2006, some years after Wawanesa's responses to the expenses submitted. The latter provides that an insurer is not liable, subject to specific exceptions, to pay medical or rehabilitation expenses in the absence of a requisite treatment plan.

The legislation in effect at the time of this accident provided that before medical or rehabilitation expenses are incurred, the insured person shall submit an application for the benefit to the insurer, and that application shall include a treatment plan. The treatment plan must include a statement regarding any conflict of interest by the health professional who prepared the plan. Subsection 38(22) provides insurers with the option of waiving the need for a treatment plan.

In oral argument, Wawanesa stated that the remedy for non-compliance is that the Applicant is precluded from proceeding to arbitration, and agreed that the only basis of this preclusion remedy was subsection 50(a) of the Schedule. The latter provides that an insured person shall not commence a mediation proceeding unless he or she has notified the insurer of the circumstances of the claim for a benefit and submitted an application for the benefit within the time prescribed by Part X of the Schedule.

Wawanesa provided six cases in support of its position.

Lopez and Canadian General Insurance Group (OIC A96-001035, June 20, 1996) dealt not with treatment plans, but with Applications for Accident Benefits under the 1993 Schedule.² The decision in Mostajo and Wawanesa Mutual Insurance Company (FSCO A99-000984, January 16, 2001) accepted that the applicant was not entitled to recover the cost of treatment for which treatment plans were not submitted, but did not consider the jurisdictional issue before me of whether one was barred from proceeding to arbitration on this question.

In Beaman and Guarantee Company of North America (FSCO A00-001016, May 1, 2001), Arbitrator Renahan stated that:

At first glance, it appears that no medical or rehabilitation benefit is payable to Mrs. Beaman because she did not comply with the clear wording of section 38 which stipulates that before an insured incurs expenses for medical treatment, the insured "shall" apply for the benefit from the insurer and the application "must" include a treatment plan.

Nonetheless, Arbitrator Renahan, perhaps foreshadowing the seminal Supreme Court of Canada decision in Smith v. Co-operators General Insurance Co. 2002 SCC 30, [2002] 2 S.C.R. 129, concluded that:

I do not believe it is fair to allow Guarantee to rely on Mrs. Beaman's failure to submit a treatment plan when it has not complied with its duty to assist her by promptly advising her that it required a treatment plan.

Arbitrator Renahan found that the drafters of section 38 could not have intended that an insurer could deny coverage where instead of informing an applicant it required a treatment plan, it advised it would not consider further applications and intended to close its file.

Notwithstanding Mrs. Beaman’s failure to provide a treatment plan, Arbitrator Renahan allowed the applicant to proceed to arbitration for medical expenses incurred up to the date her insurer first advised it was relying on its right to receive such plans. Mrs. Beaman could not proceed on expenses after that date where there was no treatment plan, as she was represented by legal counsel who "should have understood that Guarantee was relying on its right to receive treatment plans."

Arbitrator Palmer, in Glagow and Pafco Insurance Company Limited (FSCO A00-000835, June 27, 2001), agreed with Arbitrator Renahan, holding that Pafco should have told Mrs. Glagow’s solicitors that the Schedule required her to provide a treatment plan with the request for payment, and should have enclosed a blank form to allow the applicant an opportunity to have a health professional complete the form giving the details of the plan and indicating his support for it.

Wasylewycz and Guarantee Company of North America (FSCO A04-002136, July 28, 2006) held that the insurer was not responsible for paying for treatment as no treatment plan was ever prepared or submitted to the insurer. This is the only decision provided by the Insurer issued after Smith. Wasylewycz, however, discusses neither Smith nor section 50 of the Schedule.

In its written submissions, Wawanesa argued that Beaman stands for the proposition that:

. . . once an insured is advised of an insurer's request for treatment plans and the consequences of non-compliance with Section 38, treatment plans should be submitted for any proposed services following the date of such notice [and any] failure should result in the Applicant not being permitted to proceed to Arbitration on [this] issue since the treatment plans were not submitted. [emphasis added]

Wawanesa submits that it wrote Mr. El-Zein on three separate occasions and on each occasion enclosed a blank treatment plan, providing the Applicant ample opportunity to comply with section 38. It further argues that any treatment plan is limited to the four corners of that precise plan. To allow one practitioner to propose various modalities of treatment to be done by various practitioners would constitute "double dipping."

Wawanesa states that it has been deprived of a meaningful description of the proposed treatment and the opportunity to consider whether the treatment was reasonable and necessary. It submits that the remedy for that prejudice is that Mr. El-Zein, being the author of his own misfortune, should not be permitted to proceed to arbitration and should not be entitled to claim payment for any invoices that were submitted to Wawanesa without simultaneously accompanying treatment plans.

Mr. El-Zein's Submissions

The Applicant submits that he provided treatment plans to Wawanesa. Mr. El-Zein states that the Insurer’s letter of November 14, 2002 provided no explanation as to why the previously prepared Treatment Plans and/or notes of Dr. Labelle of February 24, Dr. Williams of April 16 and 23, and October 1 and 22, 2002 were not acceptable. The Applicant states that after the Insurer’s November 12, 2002 letter, further treatment plans of December 11, 2002 and July 28, 2003 were provided, to which the Insurer did not respond.

It is Mr. El-Zein’s position that although treatment plans did not accompany each invoice at the precise time it was submitted, the treatment plans provided clearly relate to the treatments received by Mr. El-Zein, that they cover the vast majority of the expenses submitted and he has complied with his responsibilities under the Schedule. Mr. El-Zein, relying on paragraph 32(2)(c) of the Schedule, argues that if Wawanesa required clarification with respect to those plans, it owed a duty to explain why the treatment plans submitted were deficient.

The Applicant notes that subsection 32(3.1) of the present version of the Schedule provides that if an insurer receives an incomplete application for a benefit, the insurer must notify the insured within fourteen days, indicating that the application is incomplete and what information is missing. Section 17 of the Interpretation Act, R.S.O. 1QQ0, c. I. 11, however, states that the amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law. Section 19 of the Interpretation Act states that the Legislature shall not, by amending an Act, be deemed to have adopted the construction that has by judicial decision or otherwise been placed upon the language used in the Act or upon similar language.

Conclusion

The Schedule is meant to provide quick access to first-party automobile insurance benefits. The case law provides that Treatment Plans are required to provide insurers with clear and sufficient information regarding the duration, frequency and estimated cost of treatment to permit the insurer to properly and quickly determine whether the claim is reasonable and necessary.

If reasonable parties are providing reasonable and necessary information to each other, the potential for conflict and the need for costly and time consuming dispute resolution is significantly reduced.

The Supreme Court of Canada held in Smith that:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.

As stated by (then) Arbitrator Makepeace in Correia and TTC Insurance Company Limited, (FSCO A00-000045, October 27, 2000), paraphrasing Driedger on the Constructions of Statutes³ "[s]tatutory language must be interpreted in accordance with its plain and ordinary meaning, in the context of the statute as a whole, and keeping in mind the underlying purpose of the statute."

Section 10 of the Interpretation Act states that:

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

The Ontario Court of Appeal, in Bapoo v. Co-Operators General Insurance Co. (1QQ7), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616, held that:

The interpretation of a statutory provision should not only comply with the legislative text and promote the legislative purpose, it should produce a reasonable and just outcome. . . . Avoiding unjust or unacceptable results is an essential part of the court's task in interpreting statutory language.

I find that it is the task of this tribunal to provide a large and liberal, as well as fair, reasonable and just construction and interpretation of the Schedule as will best ensure the attainment of the legislative object of consumer protection.

The decision in Horvath and Allstate Insurance Company of Canada (FSCO A02-000482, June 9, 2003) concerned a time limit. Arbitrator Leitch questioned what information an insurer must provide an insured person about a time limit; was it sufficient to inform the insured person that one must do a required thing within a required time limit or must the insurer also inform the insured person of the potential consequences if one fails to do what is required within the required time limit.

Arbitrator Leitch answered that question by saying:

As I understand the Smith decision, the goal of consumer protection is promoted by requiring insurers to provide "basic information" outlining the "most important points of the process "using "Straightforward and clear language, directed towards an unsophisticated person."There is no doubt that the time limit imposed by section 32(3) is one of the most important points or parts of the process for claiming benefits. In my view, basic information about this time limit includes information about the potential consequences of failing to either comply with it or to provide a reasonable explanation for non-compliance. Without this information, insured persons may think that the only consequence of their own delay will be delay in receiving benefits. As I read the principles enunciated in the Smith case, section 32(2)(c) should be interpreted in a way which protects consumers by requiring insurers to inform insured persons of the far more serious potential consequences of their failure to comply with section 32(3).

[emphasis added]

Wawanesa submitted that Smith only applies when an insured’s rights are being entirely extinguished, such as with a limitation period; that it does not apply to treatment plans as one can in the future still apply for other benefits. Since the Schedule is a contract of insurance and, unlike tort law, affords multiple claims (and time limits running from various points in time), I fail to discern the distinction proffered by the Insurer.

Wawanesa also argues that it is generally accepted in the insurance industry that Smith has been "watered down" by the Court of Appeal in Turner and State Farm Mutual Automobile Insurance Co. 2005 CanLII 2551 (ON CA), [2005] O.J. No. 351.

The Court of Appeal in Turner does not mention Smith, but I find it supports Smith, and specifically an insurer’s duty to give clear and unequivocal notice of its denial, and to give reasons for its refusal so as to allow an insured to decide whether or not to challenge a denial of benefits.

Accordingly, I agree with Arbitrator Leitch. I find that the principles enunciated in that decision are not limited to subsection 32(3) of the Schedule. I find that the principle of consumer protection applies equally to section 50. Section 50 provides that one may not proceed to mediation if one has not provided an application for a benefit. Hence, as mediation is a mandatory prerequisite to a law suit or an arbitration, one is effectively barred from recovery. That is an extremely serious consequence.

Wawanesa submits that the case law requires that an insured must be advised as to the need for a treatment plan and the consequence of non-compliance. I agree. It is, however, not sufficient to merely state that the consequences is that the insurer will not pay the benefits. Rather, the insured must be advised about the "most important points of the process" using "straightforward and clear language, directed towards an unsophisticated person."

In Beaman, the arbitrator held that the situation changed once the insurer had advised the insured's counsel that a treatment plan was needed, as counsel "should have understood that Guarantee was relying on its right to receive treatment plans." Smith, however, where the insured was represented throughout by counsel, held that:

As I have mentioned above, insurance law is, in many respects, geared towards protection of the consumer. This approach obliges the courts to impose bright-line boundaries between the permissible and the impermissible without undue solicitude for particular circumstances that might operate against claimants in certain cases.

"Bright-line boundaries" means that certain requisite information is required, regardless of the representation or supposed sophistication of the insured person. Inquiry as to whether a specific insured knew or ought to have known the consequences, or was unclear about the consequences is irrelevant if such requisite information is not provided. As shown by the Settlement Regulation promulgated under the Insurance Act, one purpose of auto insurance legislation is to avoid disputes. If requisite information is provided in every case, the potential for misunderstandings and, hence, litigation, is reduced, as seen in the significant decrease at the Commission of cases where settlement is in issue.

Wawanesa agreed in its submissions that where the material provided by an insured is deficient, an insurer is obliged to request clarification and that there is no dispute that section 32 of the Schedule obliges an insurer to assist its insured in completing requisite forms. In this case, Wawanesa, relying on its three letters, submits that it gave clear and unequivocal notice of the deficiencies in the documentation provided by Mr. El-Zein, it assisted him with those deficiencies and gave Mr. El-Zein the opportunity to rectify those deficiencies.

The first Explanation, dated April 3, 2002, responds to unidentified massage therapy. Wawanesa advises that a completed treatment plan is required. It does not say within what time period it is required. It does not say what the statutory consequences are of non-compliance. It specifically does not say that the Applicant will be precluded from arbitration if there is non-compliance. Mr. El-Zein subsequently provided treatment plans and notes which addressed massage therapy. Wawanesa did not advise that these plans were inadequate. I find that Wawanesa cannot rely on its first Explanation.

Wawanesa’s second Explanation is dated June 17, 2002. It pertains to Beresford. Again, Wawanesa does not say within what time period a treatment plan is required. It does not say what the statutory consequences are of non-compliance. It does not say that the Applicant will be precluded from arbitration for non-compliance. It does not say why Dr. Williams prior treatment plan of April 16, 2002, estimating, amongst other things, four to six months of massage therapy, was inadequate. A subsequent treatment plan is ultimately received by Wawanesa on December 11, 2002 from Beresford itself, following documentation from Dr. Williams in October 2002. There was no indication forthcoming from Wawanesa why this material was inadequate.

The final correspondence of November 14, 2002 is most troubling. The letter is very clear. The treatment plans attached to the letter are being provided "for consideration of future treatment." The letter is equally clear that "[p]reviously incurred treatment will not be considered as you have not complied with section 38 of the regulations." The letter does not offer the Applicant an opportunity to remedy any alleged past deficiencies. The letter does not say what was inadequate regarding Dr. Williams' treatment plan of October 22, 2002 which covered a range of modalities, including an attached rehabilitation medicine plan (which I was not provided and hence cannot know what it covered).

The letter does not advise in straightforward and clear language, directed towards an unsophisticated person" basic information as to the statutory consequences of any non-compliance. It only states the Wawanesa is not paying. It relies on counsel knowing the consequences of section 38. That does not meet the "bright-line boundary" set in Smith. It does not provide adequate information to assist an insured in applying for benefits, as required by paragraph 32(2)(c) of the Schedule. It does not provide reasons as to what it considers to be the deficiencies in the information provided to permit the insured to decide whether or not to challenge" the denial.

Turner establishes that an insurer's reasons for refusing to pay benefits may be correct or incorrect. Smith, however, still requires that an insurer recite to its insured the process following a refusal, and still requires that its recitation is correct.

An insurer cannot simply hide amidst the provisions of the Schedule, hoping that an insured gets lost. Since Smith, an insurer cannot rely on a party's counsel advising of the consequences of non-compliance. It is sometimes said that no-fault auto insurers are insurers of last resort. Based on Smith, an auto insurer does automatically stand behind Errors and Omissions Insurance.

Where there is a deficiency in documentation provided, the Schedule in place at the time of this accident requires an insurer to clearly and precisely explain the deficiency and the consequences of that deficiency so that an insured can make an informed decision whether to remedy the situation, and if so, how. When an insured has been clearly and fairly told what is missing, how and within what period the deficiency can be remedied and the precise material consequences of non-compliance, and chooses to ignore that requisite reasonable and necessary assistance (and, hence, deprives an insurer of the opportunity to meaningfully adjust the claim), dispute resolution should not allow an applicant to waste judicial, and insurer, resources by proceeding to arbitration. That is the purpose of subsection 50(a) of the Schedule.

If Wawanesa’s concern was that the items claimed did not fall precisely within the four corners of the treatment plans submitted or that the treatment plans ultimately submitted did not encompass the items previously provided, they did not communicate that. Wawanesa conceded in its submissions that it never advised Mr. El-Zein of the consequences of preclusion under subsection 50(a). It ultimately conceded that it never advised Mr. El-Zein that there was a defect in Dr. Williams treatment plans which would allow the Applicant to rectify that deficiency.

Wawanesa now raises limitation arguments if new treatment plan are submitted. Wawanesa has, effectively, eliminated the Applicant’s right to remedy any defect.

An insurer can choose to rely on their protective remedies under the Schedule by first advising their first-party insureds of requisite information. In this case, Wawanesa was silent, regarding requisite information, including advising as to the material consequences of non-compliance. That was contrary to paragraph 32(2)(c) of the Schedule and the Supreme Court of Canada decision in Smith. I find that Wawanesa cannot rely on subparagraph 50(a) of the Schedule. Accordingly, the Insurer’s motion is dismissed. Mr. El-Zein is not precluded from proceeding to arbitration on the said expenses.

EXPENSES:

The Insurer asked that I defer the question of the expenses of this preliminary issue hearing to the main hearing. The Applicant asked that I address this issue once I determined this issue. Having heard the motion, I feel that it is appropriate that I deal with the expenses of this hearing, should the parties be unable to agree with same.

I refer the parties to Rule 79.1 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003), which provides that an appointment before an adjudicator to determine expenses must be made within thirty days of the date the other issues in dispute was issued.

March 2, 2007

Lawrence Blackman

Arbitrator

Date