Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 69
FSCO A04-002743
BETWEEN:
CHRIS KABALA
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Denise Ashby
Heard:
By telephone conference call on February 18, 2007.
Appearances:
Michael Okojie for Mr. Kabala
Dwain Burns for TD Home and Auto Insurance Company
Issues:
The Applicant, Chris Kabala, was injured in a motor vehicle accident on July 20, 2001. He applied for statutory accident benefits from TD Home and Auto Insurance Company ("TD Home"), payable under the Schedule.1 TD Home has not paid benefits. The parties were unable to resolve their disputes through mediation, and Mr. Kabala applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Does Mr. Kabala have the mental capacity to proceed in the dispute resolution process pursuant to Rule 10.3(a) of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003)?
Result:
- Mr. Kabala has the mental capacity to proceed in the dispute resolution process, pursuant to Rule 10.3(a) of the Dispute Resolution Practice Code.
CHRONOLOGY:
On September 26, 2005, a preliminary issue hearing was commenced before me. It was adjourned to permit a determination of Mr. Kabala's capacity to proceed in the dispute resolution process pursuant to Rule 10 of the Code.
On January 20, 2006, the preliminary issue hearing in respect of Mr. Kabala's capacity to proceed commenced before me. Mr. Kabala brought a Motion for Interim Expenses. I adjourned to permit TD Home time to respond.
On February 10, 2006, the Motion for Interim Expenses was heard.
On May 4, 2006, I released my decision on the Motion for Interim Expenses.
On July 28, 2006, a case management teleconference was held.
On December 21, 2006, the preliminary issue in respect of Mr. Kabala's capacity was heard.
EVIDENCE AND ANALYSIS:
On September 26, 2005, a preliminary issue hearing in this matter was commenced before me. At those proceedings, Mr. Kabala, who was unrepresented, made comments which caused me to question his capacity to proceed in the dispute resolution process. Based on information before me, I made a finding that there had been no prior declaration of incapacity. I then adjourned the matter until a determination of Mr. Kabala's capacity had been made.
Rule 10.1of the Dispute Resolution Practice Code sets out the presumption that a party to a proceeding has the capacity to conduct his case.
Rule 10.3 provides:
Where an adult party has not been declared mentally incapable under the provisions of the SDA, but exhibits signs of mental difficulty during the course of a mediation, settlement discussion, neutral evaluation or proceeding, either party may request a hearing on a preliminary issue, or the Dispute Resolution Group may direct a hearing on a preliminary issue to determine whether:
(a) the party has the mental capacity to proceed in the dispute resolution process;
Since September 2005, Mr. Kabala has participated in five teleconferences at which I have had an opportunity to observe his demeanor. He brought a successful motion for interim expenses.2
Mr. Kabala has retained a representative and submits that he is capable of proceeding in the dispute resolution process in support of which he entered a letter from his psychiatrist. TD Home disputes that he is capable of proceeding.
Mr. Kabala produced a letter from his psychiatrist dated December 20, 2006. The doctor stated:
He is suffering from Bipolar affective disorder and generalized anxiety disorder. He also suffers from extreme physical pain due to physical illness.
He experiences mood swings and extremely irritability [sic]. Under any stressful situation, he becomes extremely irritable. In the past I have recommended him not to subject himself to stressful situation.
He is on multiple medications and at times his judgment is not good.
I personally feel he is not fit and should not subject himself to legal and trial cases.3
Rule 10.1 provides that a party is presumed to have the mental capacity to manage his or her property. Although the doctor is of the opinion that Mr. Kabala exhibits poor judgement and is "not fit," he does not state that this opinion has led him to conclude that Mr. Kabala is incapable of managing his property. Rather he has dealt with his concerns by recommending that Mr. Kabala not involve himself in stressful situations. Therefore, I interpret the doctor's comment regarding fitness as a reference to Mr. Kabala's lack of the physical and emotional stamina necessary to engage in legal proceedings. It was not to be taken as an opinion that Mr. Kabala lacks the mental capacity to manage his property.
I agree with the doctor's observation that Mr. Kabala is subject to extreme irritability. However, during the proceedings subsequent to September 2005, Mr. Kabala has demonstrated that he is capable of sophisticated submissions, is able to control his irritability and meaningfully participate in the process and appreciates the nature of the dispute resolution process.
On the basis of the foregoing, I find that there is insufficient evidence to rebut the presumption that Mr. Kabala has the mental capacity to manage his or her property, appoint and instruct a representative, and conduct his or her own case pursuant to Rule 10 of the Dispute Resolution Practice Code.
April 5, 2007
Denise Ashby
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 69
FSCO A04-002743
BETWEEN:
CHRIS KABALA
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Kabala has the mental capacity to proceed in the dispute resolution process, pursuant to Rule 10.3(a) of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003).
April 5, 2007
Denise Ashby
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Kabala and TD Home and Auto Insurance Company, (FSCO A04-002743, May 4, 2006)
- Exhibit 1