Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 141 FSCO A09-000900

BETWEEN:

SIVAKUMARU SINNAPU Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Arbitrator John Wilson Heard: September 11, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Alexander Voudouris for Mr. Sinnapu Paul Kiddey for Economical Mutual Insurance Company

Issues:

The Applicant, Sivakumaru Sinnapu was employed as a "fishmonger," working for Priyas Foods in Toronto. However on June 22, 2006 he was injured in a motor vehicle accident and was unable to work. He applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹

Economical ultimately terminated weekly income replacement benefits on the grounds that Mr. Sinnapu did not meet the requirements for income replacement benefits past the two-year mark. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Since the stoppage of benefits Mr. Sinnapu has claimed that he has been in serious financial difficulty and that he remains unable to be employed in any occupation to which he might be suited by reason of education, training or experience.

Consequently, he has since brought a motion pursuant to section 67 of the Dispute Resolution Practice Code — Fourth Edition ("DRPC") for interim benefits to be paid to him pending the resolution of his dispute with Economical.

The issue on this motion is:

1. Is Mr. Sinnapu entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act?

Mr. Sinnapu also claims interest on any amounts owing and his expenses incurred on this motion.

Result:

1. Economical shall pay Mr. Sinnapu interim benefits.
2. The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

It should be remembered that an interim order is quite different from an order that is a final determination of the rights of the parties by a hearing arbitrator.

In my view, an order of interim benefits is designed to address the personal situation of the applicant in light of a preliminary determination of the merits of the case. It does not set in motion any process with respect to ongoing benefits, particularly where the nature and scope of such benefits can only be determined after a full arbitration hearing.²

As I noted in the Nguyen³ decision the Insurance Act provides for no statutory precondition to an interim order other than the existence of an arbitration, the appointment of an arbitrator and presumably, the willingness of the arbitrator to exercise his or her discretion.

Although an interim benefit order is a unique creature of statute, it has often been analyzed in the context of mandatory injunctions which draw from the equitable jurisdiction of the superior courts.

Lord Denning once suggested a possible analysis for requests for such mandatory relief. According to him:

the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done...The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.⁴

While the jurisprudence on interim benefits at FSCO spans a considerable range of criteria, a more flexible approach without rigid preconditions approaching that advocated by Lord Denning has gained greater acceptance and indeed has received some judicial imprimatur.⁵

To decide this case however it is not necessary to review the entire controversy about what, if anything, constitutes a precondition to an interim award, and just what constitutes a "prima facie case" or other precondition to entitlement drawn from pre- RJR-MacDonald jurisprudence.⁶ Rather I am content to examine the evidence put before me, making the assumption that each party has put his or her best foot forward, and use the resulting impression of each party's case to decide whether to exercise my discretion to make an interim award.

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 result itself was an "unreasonable conclusion."⁷ One important criterion is the nature of the accident benefit scheme which frames this application.

Eberhard J., in Gill v. Zurich⁸ 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 No. 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.

It must be remembered that timeliness is also important in assuring "a fair and adequate income stream..." Indeed, even where disagreements develop over entitlement, section 281(3) of the Insurance Act provides that, pending resolution, benefit payments should continue based on the Insurer's last offer. Although often overlooked, this section of the Insurance Act is a powerful expression of the pay-pending principle inherent in the accident benefit scheme. Indeed Feldman J.A. in Fernandes noted Zalev J.'s conclusion that he had jurisdiction on an interlocutory motion under the power granted in section 281(3), to order a higher amount where an Insurer offered zero as their last offer in the hope that this would circumvent their obligation to pay full interim benefits under section 268(8) of the Insurance Act.⁹

In summary then, to be persuaded to exercise my discretion to issue an interim order at this stage in the process I must, inter alia, look at the evidence that has been produced, my overall impression of the bona fides of the case, the circumstances of the claimant and whether there are legal or equitable reasons that would support such an award.

In the case of legal or equitable reasons for the exercise of discretion I would look first at the purposes of the accident benefit scheme as well as whether an award to either party would be congruent with its purposes.

In looking at the evidence, I may also weigh the importance given to it based on credibility and whether it has the "ring of truth."¹⁰ Given the limited evidentiary record, any such analysis is tentative at best.

Any discretionary order ultimately should be "just" in the context of the circumstances as described in the record, and in relation to the aims of the accident benefit scheme.¹¹

No-one has suggested that Mr. Sinnapu's case for interim benefits is "frivolous" and should be dismissed out of hand. He has presented evidence that, if accepted, would appear to meet the criteria for an award of ongoing income replacement benefits past the two-year "any occupation test."

Mr. Sinnapu's theory of entitlement was straightforward. Despite a serious accident in Montreal in January 1993 that involved a fall from a balcony and a lengthy hospitalization, some thirteen years later, immediately prior to this accident he was fully functional, and employed in a physically challenging work. The evidence lists his work as that of a "fishmonger"- not selling fish but receiving shipments, sorting, stacking, cleaning and shifting fish prior to being prepared for sale.

Mr. Sinnapu was unable to keep up this work following the motor vehicle accident, notwithstanding an attempt to return to work. According to his evidence he remained unable to work, a condition that was recognized by the Insurer in the payment of benefits up to and including the two-year mark.

Given Mr. Sinnapu's limited English, his limited education and the nature of his past employment experience in Canada, he was unlikely fit to be gainfully employed in any work to which he might be otherwise suited.

Mr. Sinnapu, however was not the only party to submit evidence. The Insurer filed its book of documents, and also cross-examined Mr. Sinnapu on his affidavit evidence.

The Insurer seems to suggest that Mr. Sinnapu has significant transferable skills, whether in the management or operational areas, that would suit him for further employment. They also take the position that while Mr. Sinnapu may have met the test for disability in respect of his own occupation, he is now fit to do at least sedentary work, and so cannot meet the basic qualifications for post 104 IRB entitlement.

As well, if Mr. Sinnapu has any current disability it may be traced to Mr. Sinnapu's earlier accidental fall in Montreal, and not to the motor vehicle accident.

In support of this motion, there is a significant amount of medical material, including records, assessments and reports filed. The interpretation of this record differs substantially between Mr. Sinnapu and his Insurer. As Mr. Kiddey, counsel for Economical well summed it up, this is a classic case of warring expert reports.

I note that in this interim benefit matter, the parties did not request to cross-examine the makers of the medical reports. I agree that given the temporary and time-sensitive nature of an interim award it is appropriate to deal with the issues on an incomplete record of documentary evidence that is not always able to be subjected to the test of cross-examination.

I note as well in the context of both Mr. Sinnapu's affidavit and cross-examination, linguistic challenges clearly existed.¹² This is reflected in both Mr Sinnapu's oral and written evidence. This challenge was at least partly addressed by the use of an interpreter at the hearing who was said to be fluent in both Tamil and English.

While Mr. Sinnapu assured me that the interpreter understood him in Tamil, I am not convinced that the translation process removed all room for misunderstanding in rendering Mr. Sinnapu's testimony into English.

That said, I found Mr. Sinnapu to be a forthcoming witness. While his affidavit material (admittedly created by counsel) may have had some temporal discrepancies, on cross-examination Mr. Sinnapu provided a consistent narrative and willingly disclosed further information including that related to other motor vehicle accidents (which apparently had not generated claims).

While I have examined the documents referenced by both sides in their materials, I do not believe it appropriate to attempt to come to any final conclusion about reconciling all the documents and reports filed to date by the parties. Indeed, any impression I could gain of the content of the materials would, at this point, be incomplete, in the absence of updating reports, questioning about the basis of some of the conclusions put forward by the experts, and an examination of their assumptions.

Mr. Sinnapu submitted an affidavit in support of his application. This affidavit, however was subject to an extensive cross-examination. Indeed Mr. Kiddey would have liked the cross-examination to be even more detailed than it turned out to be.

Economical served and filed a video surveillance recording of Mr. Sinnapu, with the intent of using it on cross-examination. For reasons which I articulate at the end of this decision, I declined to admit the surveillance evidence, and struck all documents related to the surveillance from the record of this proceeding.

In his affidavit, Mr. Sinnapu described his pre-accident work at Priyas, a fish dealer. He noted such tasks as unloading boxes of fish from a truck and carrying them to a cold room, loading them on shelves, tending fish displays, loading ice, cleaning, eviscerating and sorting fish, cutting fish, and cleaning up afterwards. He notes that boxes of fish can weigh more than 100 lbs. each. There is no doubt that this work had a serious physical component.

The work at Priyas was also consistent with much of Mr. Sinnapu's pre-accident employment history in Canada in that it involved neither managerial experience nor any facility in English or French. It is important to note that although experience as a co-owner of a small apartment building, and co-owner of a "depanneur" or convenience store in Montreal would suggest that he possessed at least some transferable entrepreneurial skills, Mr. Sinnapu's evidence was that he left complex management tasks to others. Principally he did maintenance type work in the context of his part ownership of the building, and dealt with re-stocking and the more physical aspects of the depanneur, leaving the administrative work to his business partner who had some facility in French.

Mr. Sinnapu's evidence is that since the June 22, 2006 motor vehicle accident he has been unable to work and earn a livelihood.

It was also Mr. Sinnapu's evidence that he remained unable to work, even after Economical terminated his income replacement benefits, and as a consequence his financial situation deteriorated gravely, leaving him ultimately dependant on welfare.

He also testified as to the strains put on family relations by the economic pressures and spoke of having his home's electrical supply cut due to non-payment of bills.

Mr. Sinnapu's affidavit also referenced medical reports and vocational assessments.

The medical reports included a report by Dr. Oren Gozlan, psychologist, who diagnosed Mr. Sinnapu with post-traumatic stress disorder, major depression, and chronic pain, all of which he attributed directly to the motor vehicle accident.

As noted earlier, Mr. Sinnapu's theory was that although the motor vehicle accident was not of the same magnitude as his earlier fall in Montreal, which had necessitated a long hospital stay, the resulting injuries were superimposed on lingering damage from the 1993 fall. For Mr. Sinnapu, the 2006 motor vehicle accident transformed latent problems that did not seriously impact upon his functionality into active impairments that pushed him into disability.¹³

I accept that this theory of disability from the motor vehicle accident makes sense.

Dr. Garber's¹⁴ psychological report noted pain disorder, major depression episodes in remission, and adjustment disorder with mixed anxiety and depressed mood.

Dr. Geoffrey Lloyd¹⁵, an orthopaedic surgeon, felt that "Whilst it is improbable that there was any structural change as a consequence of the accident that is of concern to you, there was an alteration in his symptom complex." He concluded that Mr. Sinnapu's residual physical ability profile would limit him to non-physically challenging work.

In a supplementary report, Dr. Lloyd confirmed Mr. Sinnapu's theory that, functionally, he had come to terms with the outcome of his earlier accident (the fall in Montreal) but that the motor vehicle accident, although less severe, triggered further impairments that collectively, prevented him from regaining his previous level of function. Dr. Lloyd commented:

There are many presidents (sic) for the fact that, should these patients be involved in a further physical insult, they are vulnerable, in the sense that rehabilitation measures are not able to restore them to their prior level of function. This is the situation that applied to Mr. Sinnapu.

Although it would be misleading to state the test for ongoing impairment as to whether an Insured has returned to his prior level of functioning, Dr. Lloyd's comments corroborate Mr. Sinnapu's position that there are no positions suitable to his education training or experience where he could be gainfully employed at this time. This is so especially in the context of Dr. Lloyd's comments on possible alternative employment contained in a report by Ms. Barbara Mair.

Speaking from within his expertise as an orthopaedic surgeon, Dr. Lloyd concludes that "all six (suggested occupations) would be inappropriate, on the basis of his residual physical ability profile."

Ms. Mair, in her vocational report listed a variety of potential occupations, but rejected each for specified reasons. Such reasons included the failure to complete secondary school, the lack of necessary education and English language skills, limited physical skills. She concluded that there "are no suitable occupations" but suggested that Mr. Sinnapu "would benefit from English as a Second Language training to assist him to re-enter the workforce."¹⁶

On the other hand, in a letter report dated October 2, 2008, Dr. Reuben Lexier, Economical's orthopaedic consultant, offered his opinion on the same potential occupations.

Dr. Lexier first cited the findings of a Functional Ability Evaluation Report ("FAE") "which I have not had an opportunity to review" in which "Ms. Kavoun is reported to opine that there were inconsistencies, symptom magnifications, submaximal performance..." before concluding:

In my opinion the motor vehicle accident of June 22, 2006 did not alter Mr. Sinnappu's (sic) ability to perform any of the jobs or job profiles which he had performed prior to the motor vehicle accident. His pre-motor vehicle accident Functional and Orthopaedic status was not permanently impacted in any manner as a direct result of the motor vehicle accident. As such I disagree with the conclusions of Ms. Mair. In my opinion Mr. Sinnappu (sic) is capable of working at any of the positions identified.

The report of the FAE conducted by Ms. Xenia Kavoun, an occupational therapist, which Dr. Lexier referenced but did not read related to an assessment conducted on June 25, 2008. It consists of some 13 pages including its cover. Ms. Kavoun rightly acknowledged at the outset of her report that "It is out of the scope of practice for an Occupational Therapist to comment on impairment." She concluded that she could however "comment on functional limitations."

The only document that she notes having reviewed for the FAE is the Psychological Examination Report completed by Dr. Arnold Rubenstein and dated January 21, 2008. She quotes Dr. Rubenstein:

Based on direct observation, clinical findings and review of the available documentation it is my opinion that Mr. Sinnappu (sic) would meet the DSM-IV criteria for a diagnostic of Pain Disorder associated with Psychological Factors, Chronic."

The prominence given in her report to the pain disorder makes her comments on Mr. Sinnapu's inability to complete the balance test ("as he reported severe pain in his right lower extremity") his refusal complete 3 trials of stair climbing ("reporting severe pain in his right knee") and his refusal to attempt crouching and kneeling tests ("due to his right knee range of motion and strength limitations") all the more puzzling.

These refusals due to pain seem to have triggered the comment that "Mr. Sinnappu (sic) was observed to be giving a submaximal effort throughout this test."

In the context of a section on Reliability and Consistency of Effort Ms. Kavoun concluded not only that Mr. Sinnapu's efforts had been "submaximal" but that "he was providing a submaximal effort due to his self-limiting, pain-focused behaviour."

She went on however to consider Mr. Sinnapu's performance to be consistent, however "submaximal... with 34 out of 51 consistency measures recorded as reliable."

Even if one accepts the propriety of an occupational therapist in effect making a diagnosis of feigned pain, given Ms. Kavoun's acknowledgement of Pain disorder at the outset I do not think that the ultimate import of the FAE was as noted by Dr. Lexier, that of "inconsistencies, symptom magnifications, submaximal performance." Had Dr. Lexier read the report he would have noted the consistency between the reported pain disorder, and the observations made during the FAE.

Dr. Lexier conditioned his damning report of Mr. Sinnapu's capacity on comments which he believed Ms. Kavoun's to have made. He had of course had received only excerpted, second-hand comments, apparently from a representative of Economical.

That Dr. Lexier should have read and drawn his own conclusions from the report that he relied upon goes without saying. His failure to do so also brings into question the value of his own observations and examination of Mr. Sinnapu. As Dr. Lexier is one of the few experts who believes that Mr. Sinnapu is capable of a wide range of work, his shortcut, which suggests either a rushed assessment or a failure to live up to the professional standards expected of an expert witness, significantly weakens the Insurer's case in that regard.

While full testimony by Dr. Lexier and other experts followed by a complete cross-examination might provide a greater level of comfort before either accepting or rejecting such opinions, as noted earlier such finality is not possible on an interim motion for benefits.

Reviewing the evidence as presented, and assuming that both parties are putting their best foot forward, I can agree with Mr. Kiddey's characterization of this dispute as a battle of experts. Each side has its own set of opinions, which if accepted at face value would justify a finding in that party's favour.

I would disagree however with Mr. Kiddey about the consequence of such an expert standoff in the circumstances of this hearing. First of all, in addition to the experts, there is the testimony of Mr. Sinnapu himself.

While there have been minor narrative inconsistencies in his testimony, I have found Mr. Sinnapu's testimony in general to be credible.¹⁷ He has not minimized or suppressed facts or situations that were not obviously in his favour. His story ultimately held together. After a sustained cross-examination, Mr. Sinnapu's testimony still had a "ring of truth" even when compared with the documentary information on the record.

Secondly, a judge or an arbitrator is not obliged to choose between warring experts on an "either or" basis. Rather an arbitrator can and should draw what can be drawn from any evidence put on the record, whether in the form of expert opinions or witness testimony.

It is trite law that Mr. Sinnapu has the onus of proving both his potential entitlement to ongoing income replacement benefits and of demonstrating the need for an interim entitlement order.

Onus, however, rarely determines a matter where extensive evidence has been presented. As Viscount Dunedin stated in Robins v. National Trust Co: ¹⁸

But onus as a determining factor of the whole case can only arise if the tribunal finds evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.

Without Mr. Sinnapu's testimony, onus would indeed matter, since equal expert evidence could well mean that the "case is so evenly balanced that it can come to no sure conclusion."

From my appreciation of the expert reports filed by both sides however, I do not accept that even the expert evidence is a "wash." I have noted the weaknesses of Dr. Lexier's examination. I note as well that many of the Insurer's own reports suggest that there is no appropriate alternative employment available to Mr. Sinnapu.

Consequently I conclude not only that Mr. Sinnapu has demonstrated that he has a serious claim but that, should an arbitration proceed on similar evidence as to that presented at the interim benefit hearing, he would be likely to succeed in obtaining an award in his favour.

Although poverty in itself is not a precondition to accident benefits, Mr. Sinnapu has also provided credible evidence of his critical financial condition, and some of the consequences that have stemmed from his impecuniosity, evidence that is sufficient in my mind to justify dealing with this issue on an interim basis.

Given his apparent financial crisis, not to mention related stresses, he could clearly be prejudiced, by waiting even a few months more for the completion of the hearing process before being able to access benefits again.

Failure of the Insurer to comply with the Schedule in discontinuing benefits

Counsel for Mr. Sinnapu advanced an alternative argument to support an order for interim benefits at this time. He has alleged that the procedures set out in the Schedule for the discontinuance of benefits had not been followed by Economical, with the consequence that no valid refusal of benefits has ever been made. According to counsel, such a failure would justify an order reinstating benefits.

This supposed technical misfeasance by the Insurer related to the service of Dr. Lexier's report more than five business days after its receipt by the Insurer, in breach of subsection 37(5).

It should be recalled that Economical relied upon Dr. Lexier's report in terminating benefits, since Dr. Lexier was convinced that Mr. Sinnapu could undertake any number of different occupations, and hence did not meet the post 104 IRB test.

While the legal maxim de minimis non curat lex, springs to mind in the face of such an argument, since the decision of the Supreme Court in Smith¹⁹ it is no longer enough to label a technical requirement in the Schedule as a trifle that can be ignored.

If the omission of a potentially immaterial reference to dispute resolution options (as in Smith v. Co-operators) can nullify an otherwise valid notice, it may well be that another apparently innocuous, but ignored timeline such as that referenced by counsel for Mr. Sinnapu could be equally fatal to the validity an Insurer's termination notice.

However, having found for Mr. Sinnapu on substantive grounds, I find, that it is unnecessary for me to rule on this aspect of his argument.

As well, if counsel for Mr. Sinnapu is correct, and such a failure gives rise to an entitlement to benefits, the appropriate remedy in this forum would be not an interim award of benefits but an order reinstating benefits that were never properly terminated.

Such a finding on this issue could well determine the outcome of the arbitration.

Given the relatively minor attention given by both parties to this latter issue, and the lack of full argument on the issue, I would not be inclined to make such a determination unless it were to be properly framed in an appropriate motion on a preliminary issue.

Cross-examination based on video surveillance

As noted earlier in the decision, Economical advised the Commission and Mr. Sinnapu prior to the hearing of the existence of surveillance videotapes, and stated its intention to rely upon such video surveillance in its cross-examination of Mr. Sinnapu. Economical stated that there were inconsistencies in the way Mr. Sinnapu was presented in the surveillance and the impression he created with those who examined him during I. E.'s in the context of his claims against Economical.

Mr. Voudouris objected to the video surveillance being used in the cross-examination of his client. His objections centred on the preconditions to the admission of surveillance evidence contained in Rule 40 of the Dispute Resolution Practice Code. At the hearing I ruled to exclude the surveillance evidence proffered by the Insurer. The following are the reasons for that order:

Rule 40.1 of the Dispute Resolution Practice Code reads as follows:

40.1 If a party intends to rely on any portion of surveillance or investigative evidence, including videotapes, photographs, reports, notes and summaries of surveillance observations or investigations, at least 30 days before the hearing, the party shall provide: (a) the names and qualifications of the persons who secured the investigative or surveillance evidence, the dates, times and places where any surveillance or investigation was undertaken; and (b) copies of all videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute.

It was common ground that the disc containing the video surveillance that was served on Mr. Sinnapu contained a notation that the content was edited. It was also evident that, as the Insurer's materials were, under the terms of Arbitrator Nastasi's order only to be filed by August 28, 2009, the surveillance reports contained therein could not have been filed within the 30 day time-limit proposed by Rule 40.

Mr. Kiddey also acknowledged that due to the ongoing nature of this proceeding, he could not guarantee that copies of all videotapes, reports, notes and summaries had been made available to Mr. Sinnapu. Indeed the notation "edited" on the disc strongly suggested otherwise.

The Rule regarding the use of surveillance in arbitrations differs somewhat from the approach in the civil justice system. Whereas in the civil courts in Ontario surveillance films are treated much as any other physical document²⁰, the same cannot be said for the requirements of Rule 40 of the DRPC.

Under Rule 30.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, anyone seeking to use a document such as a surveillance video on which privilege has been claimed at trial must give notice in writing and provide a copy of the document or producing it for inspection at least 90 days before the commencement of the trial, failing which the party may not use the document at trial, except to impeach the testimony of a witness or with leave of the trial judge.²¹

Even if the document cannot be used as substantive evidence at trial for lack of disclosure, the Rule leaves open its admission in cross-examination for the purposes of impeaching credibility.

For practical reasons, relating to the absence of formal examinations for discovery, the principle of full and early disclosure and the perceived need to make the arbitration process timely and efficient, the Dispute Resolution Practice Code has taken a very different approach to surveillance.

Rule 40 does not distinguish between different uses for surveillance. It sets up a universal disclosure obligation that includes not only timeliness but completeness. Any reliance triggers an obligation to produce all "videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute."

Clearly Economical's proposed surveillance evidence, while likely relevant, does not meet the criteria set out in Rule 40 primarily due to incompleteness, and failure to file the surveillance and related documents within the time limits set by the Rule.

While counsel for Economical stated that the exclusion of video surveillance would prejudice their ability to cross-examine Mr. Sinnapu, I do not accept that they could not have complied with the provisions of the Rule had they been so inclined, and had their investigators been more forthcoming in providing the complete surveillance file. Simply, surveillance could and should have been disclosed earlier.

To let in material without some explanation of just what was edited out, and to deny Mr. Sinnapu the opportunity to ask the arbitrator to draw conclusions from the entirety of the surveillance would go against the spirit of the Rule and would introduce an unfairness to the process that could not be rectified by later production of the entire surveillance file.

The Rule is not absolute. Rule 81 recognizes a substantial discretion on the part of an arbitrator to decide whether a particular rule does or does not apply to a particular proceeding, and to vary or suspend procedural time limits. Discretion however is not exercised in a vacuum. There should be cogent reasons to depart from both an established practice, and the expectations of parties to an arbitration.

While difference in practices between courts and arbitration perhaps go some distance to explaining a failure to comply with the requirements of Rule 40, they do not justify suspending the underlying rationale for the Rule.

This ruling with regard to surveillance of course relates only to this interim hearing and is made without prejudice to Economical's right to file further surveillance material in accordance with the DRPC. I note however, that having advised of their reliance on such material, Economical's full disclosure obligations under Rule 40 have now been engaged.

Conclusion

Having regard to Mr. Sinnapu's uncontradicted evidence of the consequences of the withdrawal of his income replacement benefits, the strength of his case, and indeed the likelihood, based on the evidence before me that Mr. Sinnapu would be successful once his dispute proceeds to a full arbitration, and having considered the public policy goals of the statutory accident benefit scheme, I find that this is an appropriate situation in which to exercise my discretion to make an interim order for ongoing income replacement benefits.²²

In accordance with practice at the Commission, any amounts paid to Mr. Sinnapu shall be repayable should he be unsuccessful at arbitration.

Because this order is a discretionary one, I find that statutory interest will only be payable from the date of this order, should any payments under this interim order become overdue.

I also find that given the discretionary basis of the award, it is appropriate to make this order retrospective only to the date of the first pre-hearing in this matter, when the issue of interim payments appears to have first been formally raised.

EXPENSES:

The question of expenses was deferred until all other issues in this motion were decided. Therefore, the issue of Mr. Sinnapu's expenses of this motion may now be addressed. I would request that Mr. Sinnapu serve and file a short summary of expenses and disbursements in this matter. If the parties are unable to agree on an appropriate disposition as to the issue of expenses, within 30 days of the issuance of this decision, either party may request a further expense hearing.

October 16, 2009

John Wilson Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Economical shall pay Mr. Sinnapu interim benefits of $398.68 per week retroactive to July 7, 2009 and ongoing until a final arbitration decision is rendered, or the matter is finally settled.
2. These benefits are repayable to Economical in the event that he is unsuccessful in his claim.
3. The issue of expenses may now be spoken to, provided that the parties give notice of their intention within 30 days.

October 16, 2009

John Wilson Arbitrator

1. A preliminary assessment of the merits of the case is to be made so as to ensure that there is a serious issue to be tried.
2. It must be determined whether the applicant(s) were to suffer irreparable harm if the application were refused.
3. An assessment must be made as to which of the parties would suffer harm from granting or refusal of the remedy providing a decision on the merits. Sometimes this is simply called the balance of convenience.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Kolonjari and Co-operators General Insurance Company, (FSCO A97-002059, November 18, 1998).
3. 3Nguyen and State Farm Mutual Automobile Insurance Company, (FSCO A05-000305, December 22, 2005).
4. 4Hubbard v. Vosper, [1972] 2 Q.B. 84.
5. 5Samoila v. Prudential of America General Insurance Co., [1999] O.J. No. 2317 cited with approval by the court of appeal in Liberty Mutual Insurance Co. v. Fernandes, [2006] C.C.S. No. 10874.
6. 6The current criteria for consideration by a court as to whether to grant an interlocutory injunction, mandatory or not, are those as set out by the Supreme Court of Canada in RJR-MacDonald Ltd. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. These are:
7. 7For the exercise of discretion see Lamer J. in Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3.
8. 81999 CanLII 36826 (ON SC), [1999] O.J. No. 4333 at p.14.
9. 9Supra, at footnote 5.
10. 10See R. v. Thomas (Ont. C.A.), [1987] O.J. No. 1114, R. v. Fleming, [2007] ONCA 808.
11. 11The Canadian Oxford Dictionary, Toronto 1998 defines "just" as: "Legally right; lawful; equitable." Likewise, it can be "acting or done in accordance with what is morally right or fair, deserved, well grounded," or "right in amount."
12. 12My impression of linguistic challenge is buttressed by the transcript of an examination under oath included in the Insurer's book of materials filed, an examination that appears to have been attempted in English.
13. 13The causation theory in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 is still alive and well in the accident benefit forum - See Monks v. ING Insurance Company of Canada, 2005 CanLII 31991 (ON SC), [2005] 80 O.R. (3d) 609 Superior Ct.
14. 14February 8, 2009.
15. 15February 18, 2009.
16. 16Insurer's Medical Brief, Vol. 2, Tab B.
17. 17For example Mr. Sinnapu's placing of the knee surgery in a timeline after the motor vehicle accident coincided with comments noted in the medical documentation.
18. 18[1972] 2 D.L.R. 97.
19. 19Smith v. Co-operators General Insurance Company, 2002 SCC 30, [2002] 2 S.C.R. 129.
20. 20See Cronk J.A. in Landolfi et al. v. Fargione, 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 where the court states: "there is no principled basis for video evidence to attract a different, and more stringent, test for admissibility at trial than that which applies to any other form of evidence. Admittedly, the impact of video evidence can be powerful. But this is true of many forms of demonstrative evidence or any evidence that establishes that a witness is being less than truthful. The test for the admission of the evidence remains the same."
21. 21Giroux v. Lafrance, [1993] O.J. No. 2358.
22. 22Should it be a necessary analysis, I would also find that Mr. Sinnapu has demonstrated a "prima facie" case for entitlement and that he has demonstrated the requisite urgency to justify an interim order. On a balance of convenience, and an evaluation of relative prejudice, I find that the negative consequences to Mr. Sinnapu of a continued suspension of benefits far outweigh any prejudice to Economical due to ongoing payment.