Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2007 ONFSCDRS 7

FSCO A06–001533

BETWEEN:

JANAHIDEVY ANANTHAMOORTHY

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

Richard Feldman

Heard:

December 8, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David S. Wilson for Mrs. Ananthamoorthy

Pamela A. Brownlee for TD Home and Auto Insurance Company

Introduction:

The Applicant, Janahidevy Ananthamoorthy, claims to have been injured in a motor vehicle accident on September 28, 2005. She applied for and received statutory accident benefits from TD Home and Auto Insurance Company ("TD"), payable under the Schedule.¹ TD terminated weekly income replacement benefits on April 6, 2006, terminated housekeeping and home maintenance benefits on April 6, 2006 and terminated attendant care benefits on September 7, 2006. The parties were unable to resolve their disputes through mediation, and Mrs. Ananthamoorthy applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

The Application for Arbitration was filed in July 2006. A pre-hearing conference was conducted in October 2006. According to the pre-hearing letter of Arbitrator Allen, hearing dates were offered to the parties within four to six months of the pre-hearing conference. Nevertheless, the parties agreed to schedule the hearing for July 9, 10, 11 and 12, 2007.

Mrs. Ananthamoorthy has brought a motion pursuant to Rule 67 of the Dispute Resolution Practice Code (Fourth Edition) for interim benefits to be paid to her pending the resolution of her dispute with TD. The motion was heard on December 8, 2006. The Applicant was cross-examined on her Affidavit, sworn November 15, 2006. She was assisted by a Tamil interpreter.

Issues:

The issue on this motion is:

1. Whether Mrs. Ananthamoorthy is entitled to the following interim benefits, pursuant to section 279(4.1) of the Insurance Act:

(a) Interim income replacement benefits (claimed in the amount of $400 per week from April 7, 2006 onwards);

(b) Interim housekeeping and home maintenance benefits (claimed in the amount of $45 per week from April 7, 2006 onwards); and

(c) Interim attendant care benefits (claimed in the amount of $512.37 per month from September 8, 2006 onwards).

Each of the parties is also seeking their expenses of this motion.

Result:

1. Mrs. Ananthamoorthy is not entitled to interim benefits.

2. The decision on expenses is deferred at the request of the parties.

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. 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.

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:

The Applicant argued on this motion that with respect to the benefits claimed, she has established a prima facie case plus urgent need for the funds. With respect to her claim for interim attendant care benefits, she is also relying upon an alleged blatant disregard by the Insurer of its obligations under subsection 39(9) of the Schedule.

For the reasons that follow, I find that the Applicant has not established urgent need or any other compelling reason for the Commission to grant her interim benefits in this case.

Evidence of Urgency

The Applicant adduced very little evidence to support her allegation that she has an urgent financial need for interim benefits. In her twenty-one page affidavit (Ex. 1, Tab 2), only five paragraphs are devoted to this topic.

Essentially, the Applicant states that her loss of income has created difficult financial circumstances for her and her immediate family. According to the Applicant's affidavit, at the time of the accident, the family debts consisted solely of a mortgage on their family home and their bill payments were relatively current. Since the motor vehicle accident, the Applicant's husband has purportedly borrowed $24,000 and ran up credit card debts of about $10,000. His annual income is said to be approximately $25,000.

Having considered the Applicant's Affidavit and having heard her testimony on cross-examination at the hearing of the motion, I do not find her evidence concerning her family's financial circumstances to be either credible or sufficient.

The Applicant did not provide any information as to the family's assets. She also omitted important information from the Affidavit. She neglected to mention that her husband owns at least one other property (a condominium unit in which the Applicant's mother resides). The Applicant states in her affidavit that, since the accident, her husband has had to acquire a motor vehicle "in respect of which he incurs a significant monthly expenditure" but neglected to mention that, knowing their financial circumstances, his choice of vehicles was a Mercedes Benz. The Applicant has provided no information as to her family's monthly expenses and she has not claimed that they are unable currently to meet those expenses or that they are at risk of losing any of their assets.

At least some of the debts the Applicant and her family have incurred since the date of the accident (and before termination of the benefits) may well be related to the renovations they chose to do to their home after the accident. No details were provided concerning the nature of these renovations other than that they were not in any way related to or necessitated by the accident.

The Applicant stated in her Affidavit that her husband is supporting this family of six on an annual salary of $25,000 but, on cross-examination, she did not seem certain if this was in fact his salary, if the figure was a gross or net amount or even the name of the law firm where he works as a legal assistant. No evidence of income (such as income tax returns, T4 Forms or pay stubs) were adduced for the four members of the Applicant's household who are currently employed on a full-time or part-time basis.

The manner in which the Applicant responded to questions about her family's financial circumstances appeared to me to be evasive. Either she does not know the details of their financial circumstances or she is unwilling to be forthcoming with all of the relevant information that would enable me to ascertain whether her situation is sufficiently urgent to warrant the granting of interim relief. Most of her evidence was uncorroborated and, for the reasons given above, I find that I cannot rely on her uncorroborated evidence. Thus, the Applicant has failed to prove on a balance of probabilities that there is any urgent financial need for interim benefits in this case.

Income Replacement Benefits

Given that earlier hearing dates were (and continue to be) available, that the hearing is scheduled to take place in July 2007 and that the Applicant has failed to establish any financial need or urgency, I find that it is unnecessary for me to review the merits of her claim for income replacement benefits. Even if she were able to establish a prima facie case, I am not satisfied that the Applicant has demonstrated a compelling reason or reasons for the granting of interim income replacement benefits. The request for interim income replacement benefits is denied.

Housekeeping Benefits

In addition to the Applicant’s general failure to demonstrate financial need, with respect to housekeeping benefits, in particular, it is clear from the evidence of the Applicant that there is no urgency. The evidence of the Applicant (both in her affidavit and in testimony before me) was that from May 14, 2006 onwards, she has promised to pay (but has not yet paid) Mrs. K. Ponnampalam $45 per week for housekeeping services. According to the Applicant, the housekeeper is content with this arrangement. There is no evidence that Mrs. Ponnampalam has threatened to withhold housekeeping services if she does not immediately receive payment. There is no reason why this issue cannot wait to be determined at the hearing which is scheduled to commence in July 2007. The request for interim housekeeping benefits is denied.

Attendant Care Benefits

According to the Applicant, Ms. Arun Matthews has been providing attendant care services to her. No evidence from Ms. Matthews was introduced to support the Applicant's assertion that such services are in fact being provided or to confirm the amounts that have been paid for these services. Furthermore, no particulars have been provided as to the dates or exact nature of the services allegedly provided. According to the testimony of the Applicant, Ms. Matthews is currently being paid $1,000 per month primarily to assist in the care of the Applicant's youngest daughter (age 14), who has special needs. Ms. Matthews also cooks meals for the Applicant's entire family. The only tasks the Applicant could think of that Ms. Matthews currently performs specifically related to the Applicant's care were: (1) assisting her in the shower; (2) cutting her nails; and (3) helping her by reaching things in the house that are "overhead".

From the evidence before me, it appears that Ms. Matthews is currently providing very limited attendant care services to the Applicant. The Applicant did not testify that she requires more attendant care services than are currently being provided. Earlier in this decision I explained why I find that the Applicant has failed to prove that there is any pressing financial need or urgency to her claim. In such circumstances, it is neither necessary nor appropriate for me to review in this decision the voluminous medical documentation that has been filed. With respect to the claim for interim attendant care benefits, however, there remains the question of whether the Insurer ought to be ordered to pay such benefits because it has blatantly disregarded its obligations under the Schedule.

Effective September 7, 2006, the Insurer terminated the attendant care benefits it had been paying ($512.37 per month) on the basis that the Applicant failed to attend an examination conducted under s. 42 of the Schedule with respect to her need for attendant care. The examination was commenced on August 4, 2006 but was not completed on that date. Based upon the evidence before me, it appears that the Insurer arranged to have the examination completed on August 30, 2006 but then cancelled that appointment. The Applicant states in her Affidavit that she was at home on August 30, 2006 but no assessor attended at her home to complete the assessment. TD did request (in its Form OCF-9 dated August 22, 2006)⁹ that the Applicant provide some alternative dates for the completion of the assessment but there is no evidence that the Applicant ever did provide such dates to the Insurer.

Pursuant to s. 39(9) of the Schedule, where an insurer arranges an examination of a person who is currently receiving attendant care benefits, the insurer is required to continue to pay the insured person attendant care benefits at the "same rate" until the insurer receives the report of the examination.

Counsel for the Applicant submits that, in light of this purported breach of the provisions of the Schedule by the Insurer, the Insurer ought to be ordered to reinstate payment of attendant care benefits at the rate of $512.37 per month from September 8, 2006 onwards.

TD may well be obliged to pay attendant care benefits at the rate of $512.37 per month until the examination that was commenced on August 4, 2006 has been completed and the report has been received if the Applicant can establish that she has made herself reasonably available for the examination in question and the Insurer has simply neglected to have the examination completed.

I find that there is insufficient evidence before me concerning the reasons that this examination was not completed to conclude that TD’s position on this issue amounts to a blatant disregard of its obligations under the Schedule. Furthermore, in the circumstances of this case, I am not satisfied that the alleged conduct of the Insurer is sufficient on its own to justify awarding to the Applicant interim attendant care benefits.

The Applicant’s request for interim attendant care benefits is denied.

CONCLUSION:

For the foregoing reasons, the Applicant's motion for interim benefits shall be denied.

EXPENSES:

The question of expenses was deferred until all other issues in this motion were decided. 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.

January 17, 2007

Richard Feldman

Arbitrator

Date

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2007 ONFSCDRS 7

FSCO A06–001533

BETWEEN:

JANAHIDEVY ANANTHAMOORTHY

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:

1. The motion for interim benefits is denied.

2. 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.

January 17, 2007

Richard Feldman

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2R.S.O. 1990, c.I.8, as amended.
3. 3See, for example: Osbourne and Allstate Insurance Company of Canada and York Fire & Casualty Insurance Company (OIC A-009110, November 18, 1994); Lucas and Dominion of Canada General Insurance Company (OIC A-009670, March 23, 1995); Cobby and Non-Marine Underwriters, Members of Lloyd's, London, England (OIC A-014259, October 13, 1995); Malabanan and Canadian General Insurance Company (OIC A96-00084, July 26, 1996); Charles and Dominion of Canada General Insurance Company (FSCO A00-000572, March 7, 2001); Howden and Pembridge Insurance Company (Pafco Insurance Company) (FSCO A01-000333, August 31, 2001); and Ramalingam and State Farm Mutual Automobile Insurance Company (FSCO A02-001646, September 5, 2003).
4. 4See the discussion at p. 4 of Ramalingam and State Farm Mutual Automobile Insurance Company (FSCO A02-001646, September 5, 2003).
5. 5See, for example: Osbourne and Allstate Insurance Company of Canada and York Fire & Casualty Insurance Company (OIC A-009110, November 18, 1994); Lucas and Dominion of Canada General Insurance Company (OIC A-009670, March 23, 1995); Malabanan and Canadian General Insurance Company (OIC A96-00084, July 26, 1996); Harkness and Economical Insurance Company of Canada (OIC A96-001420, December 10, 1996); Singh and Coseco Insurance Co. (FSCO A01-000245, February 14, 2002); Charles and Dominion of Canada General Insurance Company (FSCO A00-000572, March 7, 2001); Howden and Pembridge Insurance Company (PAFCO INS. CO.) (FSCO A01-000333, August 31, 2001); and Ramalingam and State Farm Mutual Automobile Insurance Company (FSCO A02-001646, September 5, 2003).
6. 6(OIC A97-001551, December 15, 1997).
7. 7Nguyen and State Farm Mutual Automobile Insurance Company (FSCO A05-000305, December 22, 2005).
8. 8See, for example: Sweete and Jevco Insurance Company (OIC A96-000614, October 24, 1996); Fortney and Lombard General Insurance Company of Canada (OIC A97-00553, December 24, 1997); and Coutu and Wawanesa General Insurance Company (OIC A97-001916, July 8, 1998).
9. 9Exhibit 1, Tab 2U.