Kevin Tam v. Wawanesa Mutual Insurance Company, 2009 ONFSCDRS 10

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 10

FSCO A07-002163

BETWEEN:

KEVIN TAM

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

INTERIM DECISION

Before: Richard Feldman

Heard: January 26, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Gregory Neinstein for Mr. Tam

Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Kevin Tam, alleges that he was injured in a motor vehicle accident on July 21, 2003. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Issues arose between the parties concerning the Applicant’s entitlement to certain statutory accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Tam 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 were identified by the parties as follows:

Pursuant to section 12 of the Schedule, is Mr. Tam entitled to receive a non-earner benefit as follows:

(a) from January 21, 2004 to July 21, 2005 at the rate of $185.00 per week; and

(b) from July 22, 2005 to date and ongoing at the rate of $320.00 per week?

Pursuant to sections 14 and 15 of the Schedule, is Mr. Tam entitled to receive the following medical and rehabilitation benefits:

(a) The cost ($3,138.70) of treatment pursuant to a plan from Toronto Poly Clinic dated November 17, 2003;

(b) $4,156.30 for the outstanding cost of treatment at Toronto Poly Clinic from December 2, 2003 to September 8, 2006;

(d) $60.90 for the cost of parking between August 8, 2003 and January 11, 2006?

Pursuant to section 24 of the Schedule, is Mr. Tam entitled to payments for the cost of the following:

(a) Dr. Glickman’s report dated June 30, 2004 in the amount of $500.00;

(b) Dr. Kevin Rod’s report dated June 8, 2004 in the amount of $963.00;

(d) Dara Taylor’s File Analysis Report dated October 12, 2006 in the amount of $1,558.20?

Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is Wawanesa liable to pay Mr. Tam’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Tam liable to pay Wawanesa’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Procedural Issues Raised at the Outset of the Hearing:

Counsel for Wawanesa raised a number of objections concerning alleged breaches of FSCO’s Dispute Resolution Practice Code (the “Code”).

First, it was alleged that the Applicant had served his Arbitration Brief (i.e., the documents upon which the Applicant intends to rely at this hearing) on the Insurer only 14 days prior to the first day of the hearing, rather than at least 30 days in advance as required by Rule 39.1 of the Code. Counsel for the Applicant could not establish any extraordinary circumstances for this breach as contemplated by Rule 39.2. Nevertheless, I ruled that I would exercise my discretion under Rule 81.1 and waive the normal time requirements set out in Rule 39 for the following reasons:

(a) many of the documents in question (if not all of them) likely have been in the possession of the Insurer for more than 30 days;

(b) counsel for the Insurer could not show any specific prejudice that would flow from allowing these documents into evidence; and

(c) the harm to the Applicant in excluding all of his supporting documents outweighed the prejudice to the Insurer having received them 14 days instead of 30 days prior to the commencement of the hearing.

The Applicant’s Arbitration Brief has been marked as Exhibit 2.

Second, it was alleged that the Applicant had failed to comply with Rules 33 and 41 by failing to identify the witnesses he intended to call either at the pre-hearing conference or at least 30 days prior to the commencement of the hearing. Mr. March, counsel for Wawanesa, indicated that he only received such notice a few days before the commencement of the hearing. Mr. Neinstein, counsel for the Applicant, did not refute this. Furthermore, the Applicant did not notify potential witnesses of the intention to call him or her to give evidence at the hearing at least 30 days before the first day of the hearing. I was advised that the Applicant wishes to call as a witness Sophie Eng, an adjuster at Wawanesa, but that Mr. Neinstein only advised Ms. Eng of this intention a few days before the date set for the commencement of the hearing. Mr. Neinstein did not refute this allegation. No explanation has been offered by Mr. Neinstein for these breaches of the Code. In these circumstances, I exercised my discretion under Rule 73.5 to exclude Sophie Eng from the obligation to attend at or testify at the hearing in compliance with the summons served upon her by the Applicant.

The only other witnesses identified by the Applicant are Dr. Rod and the Applicant himself.

The Insurer’s potential witnesses are identified at page 1 of Exhibit 1. I have not yet ruled on whether I will permit the Insurer to call more than two expert witnesses.

I announced my rulings at the hearing. At this point in the proceedings, Mr. Neinstein advised me that he did not believe that he could continue to act on behalf of the Applicant. The Applicant confirmed to me that he had lost confidence in his counsel and wished to retain new counsel before proceeding with this hearing. Thus, Mr. Neinstein was seeking permission to be removed from the record and the Applicant was seeking an adjournment in order to retain new legal representation.

I granted Mr. Neinstein’s request to be removed from the record. Over the objection of counsel for Wawanesa, I also granted the Applicant’s request for an adjournment, on certain terms. The parties agreed to attend a resumed pre-hearing conference within the next six months. If the Applicant wishes to retain new counsel, he should do so quickly so that his new counsel can participate in the resumed pre-hearing conference and participate in the selection of the new hearing dates. Mr. Neinstein advised that he would co-operate in transferring this file to new counsel of the Applicant’s choice.

An interim order has been issued accordingly.

January 30, 2009

Richard Feldman

Arbitrator

Date