Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 167

FSCO A07-001223

BETWEEN:

S. S.

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON AN ADJOURNMENT

Before: Arbitrator John Wilson

Heard: September 23, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mrs. S., on her own behalf.

Eric K. Grossman for Allstate Insurance Company of Canada

Issues:

The Applicant, S.S., was injured in a motor vehicle accident on November 21, 2001. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. S applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing was scheduled to commence on April 21, 2008 at 10:00 a.m. Prior to the formal opening of the hearing I was advised that there were some administrative issues to be addressed, including Mrs. S’s request for substantial accommodations in the hearing process, and Mr. Grossman’s request for an adjournment due to a critical illness in his family that required his presence.

Mrs. S indicated some problems with the proposed hearing schedule and asked for certain accommodations due to what she perceived as her limitations and lack of endurance. Ultimately, however, a timetable was set that was agreeable to both parties.

Consequently, at that time I accepted Mr. Grossman’s suggestion that the hearing be adjourned to June 9, 10 and 12, and October 14, 15, 16, 21 and 22, 2008.

The arbitration hearing then recommenced on June 9, 2008, with Mrs. S continuing to represent herself. Mrs. S, accordingly, began to present her case, calling witnesses, including her own testimony.

The hearing, however, ground to a halt on June 12, during Mrs. S’s cross-examination, when she broke down and became what her attendant later characterized as “hysterical.”

At that time I adjourned the hearing to further hearing dates that the parties had already agreed to, since Mrs. S was clearly in no state to continue. The first of these hearing dates was to be September 23, 2008.

In the interim, on July 28, 2008, Allstate brought a motion for my recusal, and for a mistrial. I heard this motion, and by a letter decision dated July 30, 2008, I declined to either recuse myself or to order a mistrial. I noted at that time that I would follow up with my full reasons for my decision “in due course.” These reasons were released on September 26, 2008.

Immediately prior to the resumption of the hearing on September 23, I was advised by a senior arbitrator at the Commission that Mr. Grossman had been in communication with the Financial Services Commission and that he had expressed the intention not to appear at the resumption of the hearing, apparently because he believed that I lacked the jurisdiction to carry on as presiding arbitrator in this matter.

I note that there was no dispute that I had been properly appointed by the Director of Arbitrations as arbitrator in this matter pursuant to section 282(2) of the Insurance Act, but that Mr. Grossman believed that by failing to recuse myself as requested by the Insurer, I had lost jurisdiction to continue with this matter.

I was then agreeably surprised on the morning of September 23 to find both Mr. Grossman and his client present in the hearing room, as well as Mrs. S and her attendant.

Mr. Grossman advised me by way of preliminary matters, that neither he nor his client would participate further in this arbitration as he was in the midst of launching an application for judicial review, and moving for a writ of prohibition before the courts.

When asked whether he was requesting an adjournment of the arbitration, he took the position that while I had no jurisdiction to make any further order in this matter, his client would be content if I took it upon myself to adjourn the arbitration sine die to permit the completion of the judicial review and prohibition procedures.

The issue to be decided then was:

Should I exercise my discretion to order that this matter be adjourned, and if so, with what, if any conditions?

Result:

The matter was adjourned subject to the following conditions:

Allstate shall, effective immediately, recommence paying to Mrs. S an attendant care benefit in the amount of $400 per week.

While Mrs. S has stated that she needs eight hours of care per day, five days a week, at the rate of $20 per hour, I have no evidence as to the skill or qualifications of the attendant, nor as to the going rate for such services. Therefore, I am reducing the amount claimed to $10 per hour for the purposes of this time-limited assistance.

The temporary benefit should be payable until February 2, 2009 or until the arbitration hearing in this matter recommences, whichever comes first.
If no decision in the judicial review or related proceedings has been made by February 2, 2009, either party may request a further hearing to decide whether the order for payment shall be renewed or varied. The parties should contact the case administrator to set up a date and time for any such further hearing.
Mrs. S is entitled to her out-of-pocket expenses related to the resumption of the hearing which was aborted by the Insurer’s non-participation. Mrs S should file a copy of the expenses claimed as well as providing a copy of same for the Insurer within 30 days of this order. The Insurer shall have a further seven days from receipt to serve and file any submission as to the expenses claimed, following which I shall make any necessary order.
In the event that no order is made prohibiting the continuance of this arbitration by February 2, 2009, the parties shall furnish proposed dates for the completion of the hearing to the case administrator. A brief case conference may be arranged to finalize dates. In the event that no agreement on the dates for the completion of the hearing is possible, then I will proceed to fix dates for the balance of the hearing.

EVIDENCE AND ANALYSIS:

As noted above, when the hearing recommenced on September 23, 2008, Allstate took the position that, while it believed that I had no jurisdiction to make any further order in this matter, it would be content if I took it upon myself to adjourn the arbitration sine die to permit the completion of the judicial review and prohibition procedures. Otherwise, in accordance with its correspondence with the Commission, it refused to carry on with the arbitration hearing already underway.

I note that there is no record of a stay being ordered in this matter, and indeed Mr. Grossman did not claim such was the case. It would appear, however, that in the interim between the June hearing dates and the September resumption, Allstate filed at least two Notices of Appeal related to this arbitration, both of which were rejected by different appeals delegates.

Mr. Grossman’s September 22, 2008 letter to the Commission stated:

I have been instructed to launch an immediate judicial review of this matter at Divisional Court. It makes no sense to continue on with a hearing for 7 days or more where the decision of the hearing arbitrator not to recuse himself after hearing settlement numbers is clearly an error of law.

Mr. Grossman conceded that as of the date of the resumed hearing, no concrete steps had been taken towards either the judicial review application or the request for a writ of prohibition.

In the absence of a stay order at the Commission or ordered by a superior court, or an adjournment order issued by me in my capacity as the hearing arbitrator in this matter, the September 23, 2008 hearing remained on the schedule, with all parties expected to be ready and willing to participate.

To say that Allstate’s decision not to participate further in this arbitration created a significant dilemma would not be to understate the problem.

The arbitration system is designed to be a fair, but expedited means of resolving conflicts over accident benefits in a timely manner.

The Introduction to the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the Practice Code), which governs arbitrations at the Commission, notes that our procedural rules aim to promote “timely, cost-effective and fair dispute resolution services.”

Eberhard J., in Gill v. Zurich, 1999 CanLII 36826 (ON SC), [1999] O.J. No. 4333 at p.14, made the following comments on the purposes of the statutory accident benefit scheme:

I adopt the statement of purpose articulated by Arbitrator Mackintosh at page 12 in Edgar v. Wellington Insurance Co. [1994] O.I.C.D. No. 34 File A-005441 that SABS is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a “fair and adequate income stream to those who are injured and disabled from work”. The victim is to receive an approximation of wages and not be compensated more or less.

G.D. Lane J. in Belair Insurance Co. v. McMichael, citing Kennelly v. Wawanesa Mutual Insurance, noted “the statutory goal of prompt payment for necessary services.”

The remedial nature of the arbitration system is important when considering the effect of Allstate’s unilateral decision not to participate in the arbitration.

The preamble to Practice Note 9, which deals with Adjournments, provides:

The Commission has an obligation to conduct arbitrations efficiently and speedily. Parties are contacted and agree to pre-hearing and hearing dates well in advance of the dates set. Therefore, adjournments are granted only sparingly once dates have been set.

While arbitrations are set up to be prompt and timely, there are also procedural safeguards inserted in the process to ensure fairness, including a code of procedural rules (the Practice Code) and the appointment of arbitrators from a list of full-time, independent professional adjudicators.

The system also provides for a prompt appeal procedure, to prevent any miscarriage of justice arising from an error in law on the part of an arbitrator. There is, of course, also provision for judicial review pursuant to the Judicial Review Procedure Act if a party remains dissatisfied with an outcome, following appeal.

All of these appeal and review provisions are bound by rules aimed at avoiding multiplicity of proceedings, and keeping the goal of the accident benefit system – the provision of a “fair and adequate income stream to those who are injured and disabled from work” – clearly in sight. One of those rules is that, as a rule, appeals of interlocutory matters are not accepted.

50.2 A party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided, unless the Director orders otherwise.

Allstate did avail itself of the appeal process, albeit unsuccessfully. Clearly it was disappointed with the outcome of that process since it announced its intention to apply for judicial review. By the date of the hearing itself, it had done nothing to perfect an application to the Divisional Court.

It is important to note that section 20(3) of the Insurance Act reads as follows:

20(3) An application for judicial review and any appeal from an order of the court on the application does not stay the decision made under this Act.

Importantly, there is no evidence or even the slightest indication that the Insurer took any positive steps to obtain a stay of the proceedings to allow it to explore judicial review at its leisure.

It could have filed a motion to adjourn or, in the alternative, stay the arbitration before me at the commencement of the resumed hearing. It did not. It could have requested, on appeal, that the matter be stayed. If it did, I have been provided with no information as to the contents or the outcome of such a motion.

The Insurer could have launched its application for judicial review in the courts and requested a stay on an emergency basis, or asked for interim injunctive relief from a superior court. There is no evidence that Allstate proceeded with any of these options, yet it seemed to think that the arbitration process would automatically grind to a halt if it packed up its bags and went home.

The arbitration system as set out in the Insurance Act is rather simple.² Once an insured refers a matter to arbitration, the Director appoints an arbitrator to “determine all issues in dispute, whether the issues are raised by the insured person or the insurer.”³

It is important to note that the choice of forum is to the Insured, not the Insurer in this matter.⁴ Indeed, the refusal of Allstate to participate in this arbitration, and its evident intention to commence proceedings in the courts, could be seen as a direct attack on the insured’s choice of forum and control of the process.⁵

In accordance with the principles of the statutory accident benefits system and its dispute resolution components, once appointed, an arbitrator “has exclusive jurisdiction to exercise the powers conferred upon him or her under this Act and to determine all questions of fact or law that arise in any proceeding before him or her and, unless an appeal is provided under this Act, his or her decision thereon is final and conclusive for all purposes.”⁶

Although the Insurer has since suggested that its refusal to participate in the arbitration might be restricted to participation in any arbitration over which I preside, and would not preclude a hearing before another arbitrator, that is the nub of their motion for recusal which was denied, and the subsequent appeal, which was also denied.

According to the scheme of the Act, in the absence of a successful appeal, or a stay, jurisdiction over all aspects of the arbitration will continue, and the appointed arbitrator retains jurisdiction. There is certainly no provision in this scheme for either forum or arbitrator shopping by an insurer.

Faced with the refusal of the Insurer to recognize the validity of this ongoing arbitration, and its refusal to further participate, there were at least two courses of action available to me as presiding arbitrator.

The granting of an adjournment would be only one of the possible outcomes if a party unilaterally withdrew from an arbitration proceeding.

Section 7(1) of the Statutory Powers Procedure Act provides that in the event that a party does not show for a hearing after due notice, “the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.”

I am satisfied that Allstate received the appropriate notices of the hearing and, indeed, the September dates were set based on the availability of its counsel, Mr. Grossman. Thus, one alternative would have been to proceed with this matter in the absence of and without any further input from the Insurer.

Although there is precedent for proceeding in the absence of an insurer⁸, and, in effect giving a default judgement to the applicant, I am not comfortable taking that course of action at this time. There are factually and legally complex matters at issue in this arbitration, including the important claim that Mrs. S meets the legislative requirement for a designation of catastrophic impairment. The decision of whether or not Mrs. S is catastrophic is one that will affect not only the past benefits at issue, but also her entitlement to future benefits.

Given the actions currently being undertaken by the Insurer to remove me from this arbitration, and its clear intent to have recourse to the courts to this end, I am not certain what could be gained by forcing Mrs. S to proceed with presenting the balance of her evidence at this time. I note that Mrs. S has proposed to call further evidence including the evidence of expert witnesses, which would be for naught if the Insurer is successful in its allegation that there is no jurisdiction to proceed.

I note also that Mrs. S is an unrepresented litigant and that she has tendered reports suggesting that the hearing process is somewhat of an ordeal for her, given her claimed physical and psychological infirmity.

Whether or not the Insurer formally asks for an adjournment, Rule 72.4 of the Practice Code provides that “an adjudicator may adjourn a proceeding on his or her own initiative, or at the request of a party, on such terms he or she considers just.”

It is a fundamental precept of our system of justice that an individual is entitled to be heard before a decision affecting his interest can be made against him. That does not mean that Tribunals must cater to the convenience of the parties at all costs. However, the interests of the parties and the relative prejudice to one or another resulting from the granting or not of an adjournment must enter into the equation.

Laskin J. stated in Khimji v. Dhanani Estate⁹: “Under our modern Rules non-compensable prejudice plays a pivotal role in deciding whether to grant an amendment or an adjournment.” The decision of the Divisional Court in Kalin and College of Teachers¹⁰ has emphasized the need for all tribunals to exercise care in refusing adjournments, since such a refusal in itself could be a denial of natural justice, and grounds for the tribunal to lose jurisdiction.

The jurisprudence then suggests that a refusal to adjourn should not be made lightly, especially in situations where it is possible to address any serious prejudice by way of either a costs or expense order or some other appropriate condition to the adjournment.

Rule 72.4 of the Practice Code specifically provides for adjournments being “on such terms as he or she [the adjudicator] considers just.”

Neither the Practice Code, the Schedule nor the Insurance Act provides any guidance as to the nature of the terms that an arbitrator can impose in the case of an adjournment. However, similar rules regarding adjournments exist in courts across Canada. Indeed, the language dealing with adjournments “on such terms as he or she [the adjudicator] considers just” is almost universal.

Certainly in Ontario a wide range of conditions have been applied to adjournments.¹¹ In disability insurance cases, including accident benefit matters, an order for some sort of interim benefits is not unheard of in this context.

In Dempster v. Mutual Life,¹² Marshall J., relying on his authority under Rule 37.13(1) to “adjourn the motion, in whole or in part and with or without terms”, decided that an insurer should continue its disability payments pending an adjournment, solely as a condition of the adjournment and without consideration of the rules surrounding mandatory injunctions.

In the above matter, the Divisional Court¹³ only had the brief endorsement of Marshall J. to deal with on appeal. It examined the general power to make such an order, and found that such an order was not the equivalent of a mandatory injunction restoring the policy to full force, but of a reasonable condition upon adjournment. The court dismissed the appeal and found the judge within his jurisdiction to make the interim order. It stated:

The term imposed was not the equivalent of a mandatory injunction restoring the policy to full force. It was clearly an interim step to ease the problem created for the plaintiff by the request for a lengthy adjournment.

In its full reasons the Divisional Court elaborated:

He put the defendant upon terms to redress the situation created by the request for the adjournment, that is, that the plaintiff would be further delayed in having a judicial determination of a matter of great importance to him: the stoppage of his income by the act of the defendant. That was a matter requiring the exercise of discretion in less than ideal circumstances. These very circumstances occur daily in our Court and discretion as to adjournments is of necessity exercised with a less than complete appreciation of the facts and without detailed consideration of the law. In spite of this handicap, Marshall J. responded appropriately.

Likewise in Hussein v. De Marco,¹⁴ Lane J., sitting as a single judge of the Divisional Court, noted in an application for leave to appeal such an order:

Counsel for the Applicant concedes that Dempster v. Mutual Life¹⁵ holds that an insurer may be ordered to make such payments as a term of the adjournment, to the extent that the payment responds to the impact of the adjournment on the insured.

For a further analysis of the imposition of such terms, it is useful to look at the jurisprudence that has developed in British Columbia out of a similar provision for adjournments with conditions at the discretion of the judge.

Beginning with Serban v. Casselman¹⁶, the courts in British Columbia began to interpret both the court rules and judicial powers with regard to adjournments liberally enough to find jurisdiction to make an order requiring that advance payments be made by a defendant as a term of adjourning a trial. This jurisprudence is consistent with the view taken in Ontario since Dempster.¹⁷

In this matter, Mr. Grossman has suggested that an award of any type of interim benefits at this time would require a finding that Mrs. S meets the criteria for catastrophic impairment, since he alleges that she has already reached the limit of available attendant care benefits for non-catastrophic insureds.

The problem with this objection is that given the refusal of the Insurer to participate further in this arbitration, there is no evidence before me to support Mr. Grossman’s assertion. He cannot at the same time expect me to rely on evidence that he has not yet presented to the tribunal, and still maintain his client’s categorical refusal to participate in this process.

As the Divisional Court commented in Dempster:

It is somewhat incongruous that a party who asked the court for an adjournment for a month, on the basis that it needed time to prepare the material to argue the issues in the case, now appeals because the motions judge did not hear and decide on those very issues in connection with the imposition of terms for the adjournment.¹⁸

Given the shared jurisdiction of arbitrators with the Superior Courts in accident benefit disputes, it is appropriate that the power of an arbitrator to adjourn a matter “on such terms as he or she considers just” include the power to order a payment or payments of benefits, in circumstances where such an order would be appropriate.

It may also be possible to found such an order for conditions on an adjournment on a party’s conduct in a matter, provided that the conduct raised concerns about an abuse of process by that party.

While the Insurer’s refusal to participate further in a legally sanctioned hearing to which it is a party without having either formally requested either a stay or an adjournment is to say the least highly irregular, it might well also be seen to contain elements of an abuse of process. Such an analysis would rely on section 23(1) of the SPPA which provides that: “(A) tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

I mention in this context as well what appears to be a series of correspondence to persons in the Commission, including myself, in which Mr. Grossman makes further submissions and clarifications on issues for which orders have already been made, without bothering to move to re-open the matter.

On the face of it, such ongoing correspondence would appear to offend Rule 52 of the Rules of Civility which reads as follows:

When the court has made a ruling on a matter, counsel should in no way attempt to re-argue the point or attempt to circumvent the effect of the ruling by other means. ¹⁹

While the Rules of Civility may be merely illustrative of the conduct expected of counsel, the courts have clearly agreed with their intent. Dickson J., writing for the Supreme Court, stated:

It is a cardinal principle of law that, unless expressly or by necessary implication, empowered to act ex parte, an appellate authority must not hold private interviews with witnesses ... or a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny ... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other ... [A] quasi-judicial officer must exercise powers in accordance with the rules of natural justice, and must not hear one side in the absence of the other.²⁰

Borins J.A. in Walker provided further commentary on this practice:

What occurred subsequent to this hearing reflects a practice that has developed in the past few years which suggests that, in the view of some counsel, subsequent to a hearing - be it a trial, or a motion or an application, or a hearing to award costs - it is appropriate to continue the hearing by entering into communication directly with the judge. This practice was virtually unheard of in the past. Some lawyers do not hesitate to provide the court with additional argument, or materials, which they apparently overlooked at the original hearing.

In my view, this practice is wrong and should stop. Although a wise sage once said “it ain’t over ‘til it’s over”, when a hearing has been concluded, it is over. There must be a finality to hearings. If counsel feels compelled to continue a hearing after its conclusion, he or she should follow the appropriate procedure by bringing the appropriate motion. If dissatisfied with the result, appellate procedures are available.²¹

The power to address all types of abuse is a wide, discretionary power. Jennings J. writing for a panel of the Divisional Court in Royal & SunAlliance v. Volfson remarked: “limiting tribunals in the face of abuse cannot have been the intention of the legislature when it gave tribunals the powers in s.23(1) to control process.”

Whether or not there have been elements of an abuse of process present in this matter, however, may only be absolutely clear when the Divisional Court either agrees or disagrees with the Insurer’s proposition in its request for judicial review and a writ of prohibition.

Certainly, in the absence of a formal explanation, and an opportunity to make submissions by the parties involved and some further context, I am unwilling to make any determination at this time as to whether an abuse of process may have occurred. That question however remains open.

Consequently, in the absence of a specific finding of abuse at this time, I should consider whether there is any prejudice to Mrs. S from this adjournment and, if so, whether it can be addressed by any conditions to be attached to an adjournment order.

Mrs. S has stated that she wishes the hearing to continue. Her position is that she needs her benefits now. She maintains that she is unable to function without her attendant care, which costs her upwards of $800 per week, and she is without the resources to continue this on an ongoing basis. She needs a decision on entitlement as soon as possible.

Mr. Grossman has estimated that it may well be mid-winter before his request for judicial review is heard, and perhaps longer before a decision is issued.

The most usual manner of addressing prejudice to a party arising from an adjournment is by means of an award of costs or expenses. In Mrs. S’s case, even if awarded her costs thrown away by the adjournment, such an award would not go far since, as an unrepresented litigant, her assessable expenses would be relatively minor. As well, an award of costs would in no way address what she identified as the principal prejudice – her ongoing cost of attendant care during the wait for a decision by the Divisional Court on the judicial review application.

As noted earlier, there is a power to order meaningful conditions as part of an adjournment order. I find that such a power, if exercised to order such benefits within a limited time period, to address a prejudice arising from the adjournment is not equivalent to a mandatory injunction nor an interim order under section 279(4.1) of the Insurance Act. It is a “stand alone” power relating to adjournments and the arbitrator’s power to control the process before him or her.

Consequently, the discretion, although circumscribed by its need to be appropriate, to relate to the prejudice to the party, and the need to be “just”, is not subject to those rules specifically relating to either injunctions in the court setting, or to interim benefit applications in arbitrations under the Insurance Act. Rather, providing, as in this case, the order has a specified, relatively short duration and addresses the circumstances and the equities of the adjournment itself, it may be made as part of the adjournment order alone without reference to the criteria for either interim benefits under the SABS or the criteria for injunctive relief.

In this case, I find that the conditions requested are appropriate to an adjournment and can be supported in that context, as discussed in the balance of this decision. The ordering of conditions is within the discretion of an arbitrator, a discretion that must be exercised lawfully, fairly or equitably. The discretion of an adjudicator is a judgement call in the context of each case that provides a wide range of options in the exercise of that discretion, provided only that the order is not based on “irrelevant factors”, a failure to consider “relevant factors” or if the condition itself was an “unreasonable conclusion.”

I accept, based on the submissions made to me with respect to the adjournment and the documents which form part of the record in this arbitration, that it would be reasonable to order an adjournment, subject to appropriate conditions, including a reinstatement of certain benefits.

Mr. Grossman’s estimate, as noted earlier, is that it may well be mid-winter before his request for judicial review is heard, and perhaps longer before a decision is issued. To Mrs. S this is too long a delay.

As noted, the most usual manner of addressing prejudice to a party arising from an adjournment is by means of an award of costs or expenses As discussed earlier, such a condition would not go far in addressing Mrs. S’s concerns.

Mrs. S was adamant that if there was to be an adjournment with consequent delays to the hearing process, she should be paid her ongoing attendant care benefit, as well as the arrears to date. The Insurer has provided no information to counter Mrs. S’s assertion of acute need.

Mr. Grossman submitted that to make such an order as a condition of adjournment would require a decision on the catastrophic issue, and a full-blown interim benefit hearing. In Allstate v. Brown, Corbett J., speaking for the court, observed in an analogous situation where a preliminary determination had to be made as to the identity of the insurer responsible to pay benefits:

…sufficient evidence existed in the record before the arbitrator for a preliminary finding that Allstate was an insurer although Allstate might ultimately be found not to be an “insurer” under the Act. The arbitrator had before her six document books filed by the parties. ²²

In this matter, there has been evidence, including medical reports and Mrs. S’s own testimony, that might go towards supporting a finding of catastrophic impairment. While I accept that a finding of catastrophic impairment is a possibility in this matter, I make no finding as such. Indeed, since the order to pay benefits only attempts to address the situation created by the request for the adjournment, such a finding would be inappropriate at this stage in the process.²³

More importantly however, it is the Insurer’s own questionable conduct in unilaterally withdrawing from the hearing process that has created the extraordinary need to make an award to Mrs. S at this time.

Allstate has failed to provide any evidence or support for its position that, absent a finding of catastrophic impairment, there can be no further entitlement for attendant care benefits. It should bear the consequences of its own actions.

Firstly, with regard to the assertion that a full hearing should be held on interim benefits, it hardly behoves Mr. Grossman to insist on a full interim benefit hearing when he and his client have absolutely refused to participate further in this arbitration process. Presumably such a global refusal includes participation in any preliminary benefits application. I note that, as the arbitrator duly appointed under the Act to determine all questions of fact or law that arise in this proceeding, an interim benefit application at this time would properly be before me.

Secondly, as discussed earlier, there is precedent for the proposition that a time-limited order for the restoration of benefits may at times be an appropriate condition of an adjournment. As such, the order would not necessarily come within the requirements of a self-standing application for interim benefits.

Thirdly, I do not accept that such an order would require a final determination as to the catastrophic issue.

Fourthly, the questionable conduct of the Insurer in forcing this adjournment must inform any decision as to the appropriate conditions on this adjournment. If it cannot itself follow the appropriate rules as to stays and adjournments of arbitrations, it cannot hold the Applicant to a higher standard with regard to a request for interim benefits.

At the hearing, I adjourned this matter sine die but reserved on the terms and conditions of the adjournment order. For the foregoing reasons the conditions on the adjournment are as follows:

Allstate shall, effective immediately, recommence paying to Mrs. S an attendant care benefit in the amount of $400 per week.

The temporary benefit should be payable until February 2, 2009 or until the arbitration hearing in this matter recommences, whichever comes first.
If no decision in the judicial review or related proceedings has been made by February 2, 2009, either party may request a further hearing to decide whether the order for payment shall be renewed or varied. The parties should contact the case administrator to set up a date and time for any such further hearing.
Mrs. S is entitled to her out-of-pocket expenses related to the resumption of the hearing which was aborted by Insurer’s non-participation. Mrs. S should file a copy of the expenses claimed as well as providing a copy of same for the Insurer within 30 days of this order. The Insurer shall have a further seven days from receipt to serve and file any submission as to the expenses claimed, following which I shall make any necessary order.
In the event that no order is made prohibiting the continuance of this arbitration by February 2, 2009, the parties shall furnish proposed dates for the completion of the hearing to the case administrator. A brief case conference may be arranged to finalize dates. In the event that no agreement on the dates for the completion of the hearing is possible, then I will proceed to fix dates for the balance of the hearing.

October 14, 2008

John Wilson Arbitrator

Date