Mona Halim v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2008 ONFSCDRS 133

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 133

Appeal P07-00035

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MONA HALIM Appellant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. Arvin Gupta for Ms. Halim Mr. David Smagata for Security National

HEARING DATE: July 16, 2008

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Paragraph 1 of the Arbitrator’s October 30, 2007 order is rescinded and replaced with: (a) Security National Insurance Co./Monnex Insurance Mgmt. Inc. shall pay Ms. Halim $869.50 with respect to an in-home assessment, together with interest thereon in accordance with section 46 of the Schedule.

2. If the parties are unable to agree on the legal expenses of this appeal proceeding, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

August 8, 2008

Lawrence Blackman Director’s Delegate Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Halim (the “Appellant”) was injured in a motor vehicle accident on November 24, 2004. She applied to Security National Insurance Co./ Monnex Insurance Mgmt. Inc. (the “Respondent”) for statutory accident benefits payable pursuant to the Schedule.¹ The parties disagreed on the Appellant’s entitlement to certain benefits. In her decision dated October 30, 2007, Arbitrator Miller (the “Arbitrator”) dismissed the Appellant’s claims. In addition, pursuant to clause 47(1)(e) of the Schedule, the Arbitrator awarded the Respondent $722.25 for the Appellant’s failure to attend a designated assessment centre (“DAC”) appointment on April 12, 2005.

In its Notice of Appeal received by the Commission on November 29, 2007, the Appellant appealed two aspects of the Arbitrator’s decision, namely:

1. that she was not entitled, pursuant to section 24 of the Schedule, to payment of $869.50 for a February 9, 2005 in-home assessment, $1,244.50 for a February 17, 2005 functional capacities assessment and $1,384 for a June 22, 2005 psychological assessment; and,
2. that she pay Security National $722.25 for her failure to attend the DAC appointment.

II. THE APPELLANT’S SUBMISSIONS

Paragraph 24(1)3 of the Schedule requires that a report, to be payable, must be reasonably required in connection with a benefit claimed. The Appellant does not appeal the Arbitrator’s findings that the reports herein were not reasonably required. Rather, the Appellant argues that notwithstanding that the reports were not reasonably required, she is entitled to payment because the Respondent failed to comply with the following procedural requirements of the Schedule:

1. the Respondent failed to give notice whether it would agree to pay for the reports within five business days of receiving the request, as required by clause 24(1.3)(b) of the Schedule. Accordingly, pursuant to subsection 24(1.5) of the Schedule, the Respondent was deemed to have agreed to pay for the assessments; and,
2. the Respondent failed to refer the assessments to a DAC as required by subsection 38.2(7) of the Schedule.

Accordingly, the Appellant submits that the Arbitrator erred in embarking on an analysis of the reasonableness of the claimed expenses.

Regarding the DAC fee, the Appellant argues that the Arbitrator erred in failing to find that the Appellant’s failure to check her mail was a reasonable explanation for not attending as the Respondent failed to make reasonable arrangements for her to attend, giving her only two business days notice. The Appellant submits that she was at all times ready, willing and able to attend the appointment and had attended three other DAC assessments that had been scheduled.

The Appellant requests that the Arbitrator’s orders in this regard be rescinded. She further seeks a special award of 50% of all outstanding benefits in addition to interest pursuant to section 46 of the Schedule and her expenses of both the arbitration and appeal proceedings.

III. THE RESPONDENT’S SUBMISSIONS

The Respondent submits that the section 24 accounts claimed are not payable because:

1. at the time the requests for payment were made, there was no benefit claimed, as required by paragraph 24(1)3 of the Schedule;
2. the Appellant failed to provide additional information requested by the Respondent pursuant to subsection 32(3.1) of