Financial Services Commission of Ontario
Neutral Citation: 2008 ONFSCDRS 89
FSCO A07-002359
BETWEEN:
ANNA HELLINGER Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer
DECISION ON A MOTION
Before: Arbitrator Suesan Alves
Heard: Written submissions were received by April 21, 2008.
Appearances: Ryan Steiner for Ms. Hellinger Derek Greenside for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Anna Hellinger, was injured in a motor vehicle accident on August 27, 2003. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.1 Ms. Hellinger 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 pre-hearing, counsel identified and agreed upon the issues in dispute. Two issues were scheduled as preliminary issues and nine as substantive issues.
Following the pre-hearing, a dispute arose as to whether three of the issues which are presently scheduled to be heard as substantive issues should instead be added to the agenda of preliminary issues to be arbitrated.
The issue is:
- Should the following issues proceed as preliminary issues or substantive issues:
(i) Did Ms. Hellinger provide a disability certificate within 21 days of receiving the insurer’s request in January 2005 as required by section 34 of the Schedule? If yes, what are the consequences?
(ii) Did Ms. Hellinger refuse to obtain treatment and participate in rehabilitation as is reasonable, available and necessary to permit her to engage in employment that satisfies the criteria set out in subsection 55(2), of the Schedule or which would shorten the period during which the benefit is payable as required by sections 55 of the Schedule? O. Reg. 403/96, s. 55 (1)
(iii) Did Ms. Hellinger make reasonable efforts to a) return to the employment in which she engaged at the time of the accident; or (b) obtain employment for which she is reasonably suited by education, training or experience as required by section 56 of the Schedule? If no, what are the consequences?
Result:
- The issues with respect to the Applicant’s compliance with sections 34, 55 and 56 of the Schedule should not be heard as preliminary issues.
EVIDENCE AND ANALYSIS:
Background
Ms. Hellinger was injured in a motor vehicle accident on August 27, 2003. She applied for arbitration in relation to her claims for income replacement benefits, the amount of those benefits, medical benefits, interest, expenses and a special award. Royal disputed Ms. Hellinger’s entitlement to all of the relief she claimed and claimed its expenses.
At a pre-hearing discussion, counsel identified the issues in dispute. Royal raised a number of procedural defences to Ms. Hellinger’s claims. The limitation period defences in relation to her claims for income replacement benefits and treatment were scheduled to be heard at a preliminary issues hearing. The remaining issues will be heard at a date to be scheduled, if Ms. Hellinger’s claims for income replacement benefits and medical benefits are not time barred.
Following the pre-hearing, counsel for the Insurer submitted that three of the issues to be heard at the main arbitration hearing should also be included as preliminary issues. Counsel for the Insurer submits that it was his understanding that these issues would be dealt with in that manner. He submits that the Insurer’s success on these issues would dispose of the arbitration with respect to income replacement benefits, the main issue to be determined at the arbitration. He further submits that the determination of the section 34, 55 and 56 issues would resolve the Insurer’s potential exposure with respect to income replacement benefits. He submits that it would be in the best interests of all concerned to have these issues heard at the same time as the other preliminary issues.
The issues relate to Royal’s allegations that Ms. Hellinger did not comply with the requirements of sections 34, and 55 and 56 of the Schedule. Section 34 relates to the provision of a medical certificate at the request of the insurer, while section 55 relates to the insured person’s obligations to obtain reasonable, necessary and available treatment and rehabilitation to reduce the duration of disability. Section 56 of the Schedule relates to the insured person’s obligations to find and return to employment.
Counsel for the Applicant submits that while he agrees that these were issues in dispute, he disagrees that they should be dealt with at a preliminary issues hearing because these issues would not dispose of the arbitration and therefore need not be addressed as preliminary issues.
The rationale for preliminary issue hearings
Judicial economy is the rationale behind preliminary issue hearings. Preliminary issue hearings are held early in the arbitration process in order to determine a cardinal issue in the arbitration in an expeditious and efficient way. Such hearings usually deal with technical defences to claims, such as limitation periods or exclusions; or with the interpretation of a provision of the legislation.
Preliminary issue hearings can often be heard by way of documentary evidence, or with minimal oral testimony, with or without oral submissions. They are generally shorter and less costly to the parties than hearings at which several witnesses testify.
At times, with the benefit of an arbitration decision interpreting a provision of the legislation, the parties are able to resolve the remaining issues in dispute, and avoid a hearing on the merits.
If the moving party succeeds at the preliminary issue hearing, the arbitration will be brought to an end, or the disputes to be adjudicated at the hearing on the merits will be significantly limited. This saves time and expense for the parties, saves the time of potential witnesses, and makes efficient use of the Commission’s resources where the arbitration is dismissed or the hearing on the merits has a more limited focus.
However, the process has disadvantages. When the moving party is unsuccessful, the period of time parties spend in the