Kim Khoeum v. Aviva Canada Inc., 2008 ONFSCDRS 3

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 3

FSCO A04-001982

BETWEEN:

KIM KHOEUM

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Anne L. Sone

Heard: July 11, 12, 13 and 14, 2005, at the offices of the Financial Services Commission of Ontario in Toronto. February 20, April 12, October 25, December 22, 2006, by teleconference call.

Final written submissions were received on September 26, 2007.

Appearances: Richard Gordon until October 25, 2006 for Ms. Khoeum Brent Vickar on December 22, 2006 for Ms. Khoeum Joseph Griffiths for Aviva Canada Inc.

Issues:

The Applicant, Kim Khoeum, was injured in a motor vehicle accident on May 23, 2003. She applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Aviva terminated weekly income replacement benefits on November 6, 2003. The parties were unable to resolve their disputes through mediation, and Ms. Khoeum applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Khoeum entitled to receive a weekly income replacement benefit, from November 7, 2003, onward, at a rate of $310.66 per week, pursuant to section 4 of the Schedule?
Is Ms. Khoeum entitled to receive a medical benefit for treatment at Four Winds Physiotherapy ($5,914) and a treatment plan from MacKenzie Medical ($2,226.75), claimed pursuant to section 14 of the Schedule?
Is Ms. Khoeum entitled to payments for housekeeping and home maintenance services, from August 16, 2003 to April 30, 2004, at a rate of $100 per week, pursuant to section 22 of the Schedule?
Is Ms. Khoeum entitled to payments for the cost of examinations (Dr. John Baird, June 28, 2004, $1,662.50, and a DMX Digital Motion X-ray, December 10, 2004, $2,999) pursuant to section 24 of the Schedule?
Is Aviva liable to pay Ms. Khoeum’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Khoeum liable to pay Aviva’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Khoeum entitled to interest for the overdue payment of benefits pursuant to section 26(2) of the Schedule?

Result:

Ms. Khoeum is not entitled to receive a weekly income replacement benefit, from November 7, 2003, onward, pursuant to section 4 of the Schedule.
Ms. Khoeum is not entitled to receive a medical benefit for treatment at Four Winds Physiotherapy ($5.914) and a treatment plan from MacKenzie Medical ($2,226.75), claimed pursuant to section 14 of the Schedule.
Ms. Khoeum is not entitled to payments for housekeeping and home maintenance services, from August 16, 2003 to April 30, 2004, at a rate of $100 per week, pursuant to section 22 of the Schedule.
Ms. Khoeum is not entitled to payments for the cost of examinations (Dr. John Baird, June 28, 2004, $1,662.50, and a DMX Digital Motion X-ray, December 10, 2004, $2,999) pursuant to section 24 of the Schedule.
Aviva is not liable to pay Ms. Khoeum’s expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Ms. Khoeum is not liable to pay Aviva’s expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Ms. Khoeum is not entitled to interest for the overdue payment of benefits pursuant to section 26(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Background:

This case has an unusual history. The hearing in this matter commenced during the week of July 11, 2005. Before the hearing was to resume, Ms. Khoeum provided a Declaration and Affirmation she signed on October 24, 2005 (“Declaration”), regarding the issue of conflict of interest. In a letter dated January 11, 2006, I raised concerns set out in recent cases concerning conflict of interest at the Commission² which, in my view, the Declaration did not address.

These cases all involved applicants represented by Mr. Gordon, who were making claims for the cost of examinations and digital motion x-rays performed by Dr. John Baird, a chiropractor. I asked that counsel be prepared to make submissions on the effect of the Declaration at the resumption of the hearing.

In a letter with enclosures dated February 18, 2006, sent by facsimile transmission to Mr. Griffiths, with a copy to Ms. Khoeum and me, Mr. Gordon advised that he was:

. . . [s]eeking to withdraw from this proceeding due to an undisclosed conflict of interest and seek [sic] to have the matter adjourned sine die until such time as Ms. Khoeum retains an alternate representative. The contact information for Ms. Khoeum has not changed in this matter.

At the start of the resumption of the hearing on February 20, 2006, Mr. Gordon proposed that Dr. Zibin, a chiropractor who is also an associate of Dr. Baird, take over all or part of the representation of Ms. Khoeum. As Aviva did not have enough information and evidence to respond to this request, it was requested that this matter be determined in a preliminary issue hearing.

A similar issue had arisen in the case of Brown and Zurich Insurance Company (“Brown”)³ which I was also hearing. Accordingly, with the consent of all the parties, I combined the preliminary issue hearings for the Khoeum and Brown cases at a teleconference call on April 12, 2006, which was confirmed in a letter dated April 20, 2006. My letter set out a timetable for submissions. Subsequently, the Brown case settled.

A few months later, a Superintendent’s Monitoring and Enforcement Bulletin was posted on the Commission website. Essentially, it stated that an investigation was conducted concerning allegations that Mr. Gordon was not properly declaring a conflict of interest with his statutory accident benefits clients. It also stated that by an order dated June 23, 2006, Mr. Gordon agreed to enter into a Minutes of Settlement agreement acknowledging that he is required to advise his clients of any conflict of interest regarding his acting as a SABS representative.

In a letter dated September 5, 2006, Mr. Gordon enclosed a letter from Dr. Zibin dated August 29, 2006. Dr. Zibin’s letter stated that due to changing professional and personal obligations, he was not able to assist in Ms. Khoeum’s arbitration. Mr. Gordon also advised that he had made extensive enquiries and could not find anyone interested in the file due to the circumstances.

At the resumption of the hearing on October 25, 2006, I explained to Ms. Khoeum, through a Cambodian interpreter, the status of her case. I also confirmed her current address.

I advised Ms. Khoeum that as Mr. Gordon has been found to have a conflict of interest in a number of similar cases, he has agreed to no longer represent her in this arbitration. Dr. Zibin was also not able to assist her. At that point she had a choice of finding another representative or representing herself at the arbitration. With the consent of Aviva, I advised her that I would give her approximately six months to find new counsel. In addition, Aviva would provide her with transcripts of the proceedings to date.

On the consent of the parties, I adjourned this matter to December 22, 2006, by teleconference. I advised the parties that if the arbitration is still ongoing on December 22nd, I would set a date for the resumption of the hearing. At that time, I permitted Mr. Gordon to withdraw as Ms. Khoeum’s representative. However, I reserved the right to impose such terms as I considered just.

In a letter dated December 18, 2006, Mr. Brent Vickar advised me that his firm would represent Ms. Khoeum for the purposes of the resumption of hearing on December 22, 2006. He subsequently declined to continue to represent Ms. Khoeum.

With the consent of the parties, the arbitration hearing was set to resume on October 1, 2, 3 and 4, 2007, whether or not Ms. Khoeum was represented by counsel.

Subsequently, Mr. Griffiths, counsel for Aviva, sent to the Commission a Consent dated September 24, 2007 signed by Ms. Khoeum and Aviva. In it they both consent to the dismissal of this action without costs.

Based on the request of the parties, I dismiss the outstanding issues in this arbitration hearing.

EXPENSES:

According to the terms that the parties have agreed upon, I make no order as to expenses.

January 11, 2008

Anne Sone Arbitrator

Date