Olga Lukashevich v. Economical Mutual Insurance Company, 2008 ONFSCDRS 131

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 131

FSCO A08-000991 & A08-000992

BETWEEN:

OLGA LUKASHEVICH

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before: Arbitrator Suesan Alves

Heard: By telephone conference call on July 30, 2008.

Appearances: Christos Nicolis for Mrs. Lukashevich

Nicholaus de Koning for Economical Mutual Insurance Company

Issues:

The Applicant, Olga Lukashevich, was injured in a motor vehicle accident on July 26, 2005. She was also injured in a motor vehicle accident on December 23, 2005. Mrs. Lukashevich applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Mrs. Lukashevich filed two applications for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended—one in relation to each of her accidents.

At the pre-hearing discussion of this case held on July 30, 2008, I was required to determine whether both arbitration applications should be combined.

The issues are:

Should these arbitration applications be combined pursuant to Rule 30 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003?

Result:

The arbitration applications should be combined pursuant to Rule 30 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003.

EVIDENCE AND ANALYSIS:

Mrs. Lukashevich was injured in motor vehicle accidents which occurred on July 26, 2005 and on December 23, 2005. She claimed statutory accident benefits as a result of each accident from Economical Mutual Insurance Company.

As there were two separate accidents, Mrs. Lukashevich filed separate arbitration applications in relation to her claims for statutory accident benefits, paid two filing fees and the Financial Services Commission of Ontario opened two files, numbered A08-000991 and A08-000992.

The Case Administrator advised the parties that it appeared that the files had an issue or question of law, fact or policy in common, and that unless they objected, and the Commission agreed with that objection, both files would be sent for a pre-hearing before an arbitrator who would decide if the files should be heard at the same time or one after the other by the same arbitrator, combined, or left separate. The parties were advised that they should be prepared to make submissions on these options at the pre-hearing.

Rule 30 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003 deals with the combining of arbitration Applications. It states:

COMBINING APPLICATIONS

30.1 Where two or more Applications for Arbitration have been filed and it appears that:

(a) they have an issue or question of law, fact, or policy in common; or

(b) the application of this Rule will result in the most just, quickest, and least expensive means to deal with the Applications;

The Dispute Resolution Group will notify the parties in writing of the intention to:

(d) schedule the proceedings to be heard at the same time;

(e) schedule one or more proceedings to be heard one immediately after the other by the same arbitrator; or

(f) suspend the scheduling of a proceeding or proceedings until the determination of any one of them.

30.2 Where a party objects to a notice made under Rule 30.1, the party must promptly notify the Dispute Resolution Group and the other parties involved, in writing, of the objection.

30.3 An arbitrator will consider an objection made under Rule 30.2 and make an order on such terms as he or she considers just.

At the pre-hearing, counsel for both parties submitted that the cases should be combined. I find that the application of Rule 30 will result in the most just, quickest, and least expensive means to deal with the Applications. I find that these arbitration applications should be combined because the parties are the same in both files; both parties are represented by the same counsel; and it is usually more convenient and economical to have one arbitration proceeding, instead of two.

I find that there are common questions of fact and law in these cases. Both accidents fall under the Bill 59 Schedule. The Applicant alleges that she has been continuously disabled since the earlier of the motor vehicle accidents. Counsel submit that Mrs. Lukashevich has a complex pre‑accident history. I find separate hearings would result in inconvenience to at least some of the witnesses who would be required to attend and testify at a second hearing.

A hearing before one arbitrator avoids the risk of inconsistent findings in relation to the duration of any disability, the cause of any disability and the amount of her weekly income benefit. These are live issues in these cases.

In these circumstances, I find the cases should proceed as a single arbitration which will be heard on the agreed hearing dates. Accordingly, the contents of the second file—the Application, Response and correspondence from File A08-000992—will be included in the first file which the Commission opened, File A08-000991. The second file, A08-000992, will be closed.

July 31, 2008

Suesan Alves

Arbitrator

Date