Jess Tendenilla v. Allstate Insurance Company of Canada, 2008 ONFSCDRS 28

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 28

FSCO A06-001684

BETWEEN:

JESS TENDENILLA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: David Muir

Heard: February 11 and 13, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Armin Gupta for Mr. Tendenilla

Richard Horst for Allstate Insurance Company of Canada

Issues:

The Applicant, Jess Tendenilla, was injured in a motor vehicle accident on June 27, 2005. He applied for 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 Mr. Tendenilla applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the outset of the hearing a preliminary issue was identified as set out below. It was agreed that this preliminary issue should be dealt with prior to a consideration of the merits of the parties’s disputes. It was further agreed that the merits of the hearing would be adjourned to July 7, 8 and 9, 2008. I remain seized of this case.

The preliminary issue is:

What are the consequences of Mr. Tendenilla’s failure to attend an Examination under Oath required of him by Allstate pursuant to section 33 (1.1) of the Schedule?

Result:

Allstate is entitled to rely upon section 33(2) of the Schedule and is not liable to pay a benefit from September 9, 2005 until such time as Mr. Tendenilla complies with section 33(1.1).

EVIDENCE AND ANALYSIS:

Mr. Tendenilla was requested to attend an examination under oath by Allstate pursuant to section 33(1.1) of the Schedule. There is no controversy that he failed to attend the initial examination and when offered the possibility, did not respond positively to an invitation from Allstate to re-schedule the examination.

The evidence tendered by the parties included a series of letters between Allstate, its agents, and Mr. Tendenilla and/or his solicitors. Ms. P. Roman, an employee of Allstate with carriage of the matter, at all material times gave evidence. Mr. Tendenilla did not give evidence.

Mr. Tendenilla relies upon what was characterized as Allstate’s failure to give reasonable notice of the examination. Alternatively it was submitted that Allstate failed to make reasonable efforts to schedule the examination at a time that Mr. Tendenilla could attend.

For the reasons that follow, I am not persuaded by the positions advanced by Mr. Tendenilla.

Mr. Alon Rooz, Mr. Tendenilla’s solicitor, in a standard cover letter dated July 5, 2005 sent with the application for benefits and related documents advised Allstate of, amongst other things, that it was not the practice of Mazin & Rooz to “notify our clients of any assessments and proper notification must be sent to our client.” Later in this same letter, the following statement in bold type was specifically referred to:

All future correspondence, requests for information and service of all notices are to be directed to my attention as well as to the claimant for proper notification.

On July 20, 2005, Ms. Roman wrote to Mr. Rooz, with a copy to Mr. Tendenilla, acknowledging receipt of the application for benefits under cover of the letter referred to above. The letter requests a personal meeting with Mr. Tendenilla for purposes of taking a face-to-face statement. Ms. Roman goes on to advise that if a “face-to-face statement was not agreeable”, Allstate would require Mr. Tendenilla to attend an examination under oath pursuant to section 33(1.1).

Mr. Rooz responded, by letter dated August 4, 2005, which advised the insurer that it was not his practice to agree to provide statements in face to face meetings and suggested that Allstate should submit its questions in writing and Mr. Tendenilla would respond in kind.

Allstate retained Mr. S. Brown, a lawyer in the law firm Flaherty, Dow, Elliott & McCarthy, to conduct an examination under oath pursuant to section 33(1.1) of the Schedule.

Mr. Brown wrote to Mr. Rooz on August 26, 2005, asking him to respond to an August 23 telephone call by August 31, 2005 “with respect to the scheduling of the Examination under Oath”. Mr. Brown advised that if Mr. Rooz did not respond, the matter would be scheduled at a time convenient to Mr. Brown, and his client, and that the selected date would not be adjourned or rescheduled.

Mr. Rooz did not respond to this letter.

On or about August 31, 2005, Mr. Brown sent a Notice of Examination under Oath to Mr. Rooz under cover of a letter of the same date. The Notice appears to comply with the requirements of section 33(1.1) of the Schedule. The examination was scheduled to take place on September 9, 2005. It is not disputed that the Notice was not sent directly to Mr. Tendenilla.

On September 7, 2005, Mr. Rooz wrote to Mr Brown as follows:

Please be advised that we have no instructions from our clients to proceed with the section 33 Examination Under Oath. As such, please do not proceed with the examination scheduled for September 9, 2005. If there are any changes in the circumstances, we will advise you.

Mr. Tendenilla did not attend the Examination on September 9, 2005.

On October 7, 2005, Ms. Roman wrote to Mr. Rooz, copied to Mr. Tendenilla.

As you are aware we requested an examination under oath of your client in accordance with Section 33(1.1) of the [Schedule]. As you are aware it was scheduled for September 9, 2005, but your client did not attend.

Under the circumstances we have no other alternative but to place your client in non compliance under Section 33(1.1) of the [Schedule]. No benefits will be payable until your client attends this examination.

Please advise if Mr. Tendenilla would like us to reschedule the Examination Under Oath in order to answer questions with respect to his entitlement to benefits under the [Schedule].

On October 21, 2005 an articling student under the supervision of Mr. Rooz wrote to Mr. Brown:

I acknowledge receipt of your letter dated October 7, 2005. Please be advised that we have no instructions from our client to proceed with the section 33 Examination Under Oath. As such, please do not reschedule the examination. If there are any changes in the circumstances, we will advise you accordingly.

Mr. Tendenilla did not ever attend an examination under oath in respect of this accident.

Mr. Tendenilla argued that the Notice was defective in that it was not provided to Mr. Tendenilla at all, but rather to counsel. Alternatively, it was submitted that Allstate had failed in its obligation to reasonably accommodate Mr. Tendenilla in its scheduling of the examination as it is required to do pursuant to Rule 33(1.3) of the Schedule.

I do not agree with Mr. Tendenilla on either point.

It is true that Mr. Tendenilla was not personally provided with Notice of the examination, however there is no dispute that his solicitor, Mr. Rooz was given timely and appropriate Notice. Mr. Tendenilla relies upon the July 5, 2005 letter above, which purports to require that Allstate give such Notice to both the solicitor and his or her client. While it may be preferable to ensure that an applicant is copied with all correspondence to and from their solicitor, in my view Allstate was entitled to rely upon section 68 of the Schedule which provides in paragraph 2(a) that “a notice in writing, required or permitted under this Regulation to be given to a person may be delivered, by faxing the document to the person or to the solicitor...”. There is no dispute that this was done.

It was suggested that Mr. Mazin had relied on Allstate’s apparent compliance with his instruction in the July 5 letter to communicate with both Mr. Tendenilla, as well as Mr. Mazin. In particular it was suggested that Ms. Roman’s practice of copying Mr. Tendenilla on correspondence prior to the examination would have lead Mr. Mazin to believe that Allstate would provide Notice of the examination under oath as well. For this reason it was submitted that Allstate was estopped from relying upon the clear provisions of section 68(2)(a) of the Schedule.

I do not agree.

There are a host of problems in attempting to raise an estoppel in the face of a clear statutory provision. But more directly, there is no evidence here of any reliance on Mr. Mazin’s part. Neither Mr. Mazin or Mr. Tendenilla came forward to offer such evidence. Reliance cannot be inferred from the correspondence tendered by the parties, indeed the documents suggest the opposite. To be clear the pattern of communication evidenced by the letters back and forth on this issue could not give rise to a reasonable belief, on Mr. Mazin’s part, that Allstate would invariably provide notices directly to Mr. Tendenilla.

I note that when Ms. Roman first wrote to Mr. Mazin, copied to Mr. Tendenilla requesting a face-to-face statement or alternatively, an examination under oath pursuant to section 33(1.1), it was Mr. Rooz who responded in writing. Most importantly the two written responses directly in respect of the examination under oath make no mention of a failure to give Notice to Mr. Tendenilla. Mr. Mazin would have known by August 31, at the absolute latest, that Allstate was not providing Notice to Mr. Tendenilla directly. If this was an issue at the time, Mr. Mazin ought to have raised it then.

These letters considered in the context of the communications between the parties suggest at a minimum that Mr. Mazin had no intention of allowing Mr. Tendenilla attend the examination. It also could have been argued, but was not, that they are an indication of a stratagem of hiding in the weeds in the hopes that the letter of July 5 could be later raised as a shield from the consequences of non-attendance at the examination.

The alternative argument that Allstate failed to make reasonable efforts to schedule the examination at a time convenient to Mr. Tendenilla, is without merit. By not responding to Mr. Brown in a timely manner, Mr. Rooz is entirely responsible if the date ultimately selected by Mr. Brown was inconvenient for Mr. Tendenilla. Mr. Brown telephoned Mr. Rooz on August 23 to find mutually convenient dates. Mr. Rooz did not respond to that call. Mr. Brown wrote to Mr. Rooz on August 26, 2005 requesting a response to the earlier message by August 31. Mr. Rooz did not respond again. Mr. Brown sent Notice to Mr. Rooz on August 31. Mr. Rooz only responded on September 7 and significantly in my view, did not plead that the shortness of time was in any way a factor in the absence of instructions from Mr. Tendenilla. It is significant in this regard that Allstate’s invitation to reschedule the examination more than a month later was met with the identical response.

In any event there is no evidence that the date selected by Mr. Brown, September 9, 2005, was inconvenient for Mr. Tendenilla.

For all of these reasons, I find that Mr. Tendenilla did not attend an examination on September 9, 2005, as required of him by Allstate pursuant to section 33(1.1) of the Schedule and for which he received timely and proper Notice as required by section 33(1.3). Accordingly, Allstate is entitled to rely upon section 33(2) and is not liable to pay a benefit from September 9, 2005 until such time as Mr. Tendenilla complies with section 33(1.1).

EXPENSES:

The question of expenses is deferred to the conclusion of the main hearing.

February 27, 2008

David Muir

Arbitrator

Date