Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 142
FSCO A08-002341
BETWEEN:
THARMARAJ THARMABASKARAN
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Fred Sampliner
Heard: Written submissions received on July 9, 2009 and August 13, 2009
Appearances: Alon Rooz for Mr. Tharmabaskaran
Alexander Lempp for Security National Insurance Co./Monnex Insurance Mgmt. Inc.
Issues:
The Applicant, Tharmaraj Tharmabaskaran, was involved in a motor vehicle accident on July 27, 2007, and he applied for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.1 The Applicant’s claims for accident benefits against Security National are the subject of both a Superior Court action and arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Security National requests an order dismissing the arbitration.
The preliminary issues are:
Should this arbitration be dismissed?
Is either party entitled to their expenses of the motion?
Result:
This arbitration will be dismissed thirty days from the date of this decision to allow Mr. Tharmabaskaran to withdraw it and join the attendant care benefit claim into his lawsuit.
Mr. Tharmabaskaran is denied his request for his motion expenses. Security National’s claim for its $3,000 arbitration filing fee is dismissed. Security National is entitled to $500, inclusive of GST, for its expenses of this motion.
EVIDENCE AND ANALYSIS:
Mr. Tharmabaskaran filed this arbitration against Security National on November 4, 2008, claiming he is entitled to ongoing monthly attendant care payments of $498.75, plus interest on overdue benefits, his arbitration expenses and a special award. Mr. Tharmabaskaran also filed a November 5, 2008 Statement of Claim in a lawsuit against this Insurer. He claims $100 weekly ongoing payments for his housekeeping/home maintenance expenses, ongoing $400 weekly payments of income replacement benefits, $2,631.24 for outstanding medical expenses, $510.01 for the cost of an examination, interest, his costs and punitive damages.
The above information about Mr. Tharmabaskaran’s lawsuit comes from copies of documents submitted by Security National. Mr. Tharmabaskaran claims this evidence is inadmissible, but he provides no facts, specific allegations or alternate documents to establish that Security National’s documents contain any inaccuracy. I reject his baseless allegation and accept Security National’s documents.
FSCO precedent has established pragmatic criteria to balance whether it is reasonable to maintain multiple legal proceedings respecting accident benefits claims.2 These are: 1) whether there is a similarity or overlap of the issues, 2) economies versus diseconomies of consolidation, 3) the timing of the actions and risk of delay to the conclusion, 4) risk of inconsistent results, 5) impediments to the processes and 6) the insured’s right to forum choice.
The four benefits claimed in Mr. Tharmabaskaran’s lawsuit together with their value establish that the court proceeding is more comprehensive in scope than this arbitration, and the benefit categories in each proceeding do not overlap. I do not accept Security National’s position that a separate hearing on attendant care creates a reasonable risk of inconsistent results because arbitrators usually decide attendant care based on the experts who assessed the applicant’s needs. This specific evidence will not be directly relevant in the court lawsuit, where witness credibility and other health care evidence will more directly impact the decision about those different benefits.
However, there is a reasonable likelihood that most of the health care documents being tendered as evidence in this arbitration on the attendant care benefit will also be used for the lawsuit. I also agree with Security National that there is a reasonable likelihood the parties will call some of the same health care experts to testify in the arbitration and lawsuit. On this basis and to avoid the duplication of legal expenses, I conclude there is a significant diseconomy to maintain both actions.
I do not know what stage Mr. Tharmabaskaran’s lawsuit is at because the parties did not provide me with that information. I make the reasonable assumption that the arbitration hearing, scheduled to commence on February 16, 2010, will happen sooner than the trial based on the court process’s usually longer timetable. While I agree that combining the attendant care claim into the lawsuit will delay the result on it, Mr. Tharmabaskaran does not argue or present any facts that time is of the essence in adjudicating his attendant care claim.
Security National consents to joining the attendant care claim into his lawsuit. Thus, I do not agree with Mr. Tharmabaskaran that he suffers significant prejudice from delay if the attendant care benefit is transferred to his lawsuit.
Most important though, Mr. Tharmabaskaran does not offer any explanation why he split his claims between arbitration and court when he mediated all benefits simultaneously. It is trite law that multiple proceedings should be avoided, and in my view, it is fatal to file separate and virtually simultaneous proceedings on accident benefits without a reasonable explanation.
Mr. Tharmabaskaran’s failure to explain this situation raises a reasonable inference that he filed this arbitration to expose Security National to duplicative defence costs, rather than to efficiently and speedily adjudicate this particular issue. I find that Mr. Tharmabaskaran has failed to justify filing this arbitration on attendant care benefits, creating significant diseconomies for both parties to maintain multiple proceedings on accident benefits.
Although Mr. Tharmabaskaran raises no argument that he suffers an impediment if his attendant care benefits claims were to proceed in court, he does make a claim for a special award that is outside of the court’s jurisdiction. The threshold for a special award, an unreasonable withholding or denial of a claim, is clearly lower than the punitive damages he claims in his lawsuit, but I am of the view that the threshold differential is not a significant impediment to joining his claims in court.
The more comprehensive nature of Mr. Tharmabaskaran’s claims in court, the diseconomy of maintaining two actions, lack of prejudice to him and failure to offer a reasonable explanation why he seeks to separately arbitrate attendant care outweigh his choice of this forum. I find that Mr. Tharmabaskaran is not entitled to proceed with this arbitration and it should be dismissed thirty days from today to allow a reasonable time for him to voluntarily withdraw his attendant care claim and join it with his lawsuit.
EXPENSES:
I deny Security National’s claim for repayment of its $3,000 arbitration filing fee because the specific provision allowing this relief under subsection 282(11) of the Insurance Act was rescinded many years ago and there is no longer any jurisdiction to grant this request. I deny Mr. Tharmabaskaran his expenses of this motion and exercise my discretion under subsection 282(11) of the Insurance Act to award Security National $500, inclusive of GST, for its motion expenses on the basis that Mr. Tharmabaskaran has lost this motion because he failed to justify filing this arbitration on attendant care benefits and has unnecessarily added expense to the adjudication of his accident benefits claims.
October 16, 2009
Fred Sampliner
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 142
FSCO A08-002341
BETWEEN:
THARMARAJ THARMABASKARAN
Applicant
and
SECURITY NATIONAL INSURANCE CO./
MONNEX INSURANCE MGMT. INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
This arbitration is dismissed on November 16, 2009, but it may be withdrawn by Mr. Tharmabaskaran before that date.
Mr. Tharmabaskaran’s claim for his expenses of this motion is dismissed. Security National’s claim for its $3,000 arbitration filing fee is dismissed. Mr. Tharmabaskaran shall pay Security National $500, inclusive of GST, for its motion expenses.
October 16, 2009
Fred Sampliner
Arbitrator
Date
Non-Marine Underwriters, Mbrs. of Lloyd’s and Mangat (FSCO Appeal P00-00020, August 1, 2000).
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- See King and Royal Insurance Company of Canada (FSCO A98-000234, March 24, 1999); and