Neutral Citation: 2009 ONFSCDRS 20 FSCO A08-000258

BETWEEN:

MARK IRWIN Applicant

and

AVIVA CANADA INC. Insurer

DECISION

Before: Arbitrator Suesan Alves Heard: By written submissions and telephone conference call on December 18, 2008. Appearances: Andrew Murray for Mr. Irwin Robert H. Rogers for Aviva Canada Inc.

Issues:

The Applicant, Mark Irwin, was injured in a motor vehicle accident on May 21, 2005. He applied for arbitration and sought a determination that he sustained a catastrophic impairment within the meaning of section 40 of the Schedule.¹ Aviva disputes that Mr. Irwin sustained a catastrophic impairment.

Following the pre-hearing counsel agreed to the hearing of a preliminary issue, requested a hearing date and agreed to advise the Commission of the precise wording of the issue prior to the hearing.

The agreed upon issue in this hearing is:

Are the reports obtained by the Insurer from Brigham & Associates admissible at the arbitration hearing regarding Mark Irwin’s entitlement to a catastrophic impairment designation, in whole, in part, or not at all?

Result:

The issue of the admissibility of the reports is deferred to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Background

The Applicant Mark Irwin is a minor who was sustained serious injuries in a motor vehicle accident on May 21, 2005. At the time of the accident he was 12 years of age; he is presently 16. In this arbitration he seeks a determination that he sustained a catastrophic impairment within the meaning of section 40 of the Schedule.

Following the pre-hearing, counsel advised they had agreed that a preliminary issue hearing should be scheduled, had agreed to timelines for submissions, and requested a hearing date. Counsel further advised that the precise wording of the issue would be submitted to the Financial Services Commission of Ontario prior to the hearing on the preliminary issue.

The circumstances which give rise to this hearing are as follows: The Applicant obtained an opinion that he sustained a catastrophic impairment and applied to Aviva for a determination that he sustained a catastrophic impairment. Aviva arranged for him to attend a multidisciplinary assessment pursuant to section 42 of the Schedule. Those assessors opined that Mark Irwin sustained a catastrophic impairment.

However, Aviva stated that it was not prepared to accept that Mr. Irwin’s injuries were catastrophic. Aviva informed the Applicant that it would seek an opinion by way of a paper review of all the medical documentation in its file. That opinion would be sought from Dr. Brigham who assisted in writing the American Medical Association’s Guides to the Evaluation of Permanent Impairment. Aviva stated that those guidelines were made for adults, not children; that it would review its decision with respect to the catastrophic impairment determination once Dr. Brigham’s report was available; and that in the interim, it would continue to pay benefits.

Based on the report from Brigham & Associates, Aviva concluded that Mark Irwin was not catastrophically impaired.

The Applicant moved for a determination of the question of whether the report authored by Brigham & Associates is admissible in whole, in part, or not at all at the arbitration hearing with regard to Mark Irwin’s entitlement to a determination that he sustained a catastrophic impairment.

Submissions of the Parties

The Applicant submits that the insurer’s own section 42 multidisciplinary assessment concluded that the Applicant “suffers from a combination of mental and physical impairments that exceeds 55% of the whole person, within the meaning of section 2(1.2)(f) of the Schedule.” He submits that there is no mechanism which permits an insurer to obtain a series of reports until it finds an assessor who opines that a claimant is not entitled to the benefit in issue. He further submits that the assessor “failed to apply the known law of the Province of Ontario in reaching an opinion that Mark Irwin does not have a catastrophic impairment.” The Applicant further submits that many of the opinions offered in the Brigham & Associates report usurp the function of the arbitrator and ought to be redacted.

The Insurer submits that the questions of relevance, materiality, admissibility, and of the weight to be given to the medical opinions contained in the Brigham reports should be determined by the hearing arbitrator. The Insurer submits that the authors of the Brigham reports have specific expertise in the AMA Guides and their evidence is relevant to a determination of whether Mr. Irwin is catastrophically impaired. The Insurer further submitted that the opinions expressed in those reports do not usurp the role of the arbitrator

Analysis

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.²

I accept that the resolution of the issue raised by the Applicant would assist counsel to prepare for the hearing at which another arbitrator will determine whether Mr. Irwin sustained a catastrophic impairment. However, in my view, the issue before me is not properly the subject of a preliminary issues hearing, rather it is an evidentiary issue which lies entirely within the province of the arbitrator who will determine whether Mr. Irwin sustained a catastrophic impairment.

The arbitration process at the Financial Services Commission of Ontario involves a separation of the roles of the pre-hearing and hearing arbitrator. The pre-hearing arbitrator assists the parties to define the issues in dispute, to resolve production disputes, to narrow or settle the issues, and deals with procedural, preliminary and interim relief issues. The hearing arbitrator decides the relevance, materiality, and admissibility of evidence tendered at the hearing at which he or she presides.³ In this case I am asked to decide as a preliminary issue the admissibility of evidence which will be tendered at the hearing of the substantive issue at which I will not preside.

Counsel referred me to the case of Borowski and Aviva Canada Inc. (FSCO A07-002593, September 12, 2008), in which one of the issues raised by way of a preliminary issues hearing was whether reports Aviva obtained from Brigham & Associates were admissible at the arbitration hearing regarding Mr. Borowski's entitlement to a catastrophic designation. In that case, the arbitrator was not the pre-hearing arbitrator. He was clothed with the authority to determine the evidentiary issue as well as the authority to determine the question of catastrophic impairment at the substantive hearing. As the pre-hearing arbitrator in this case, I was not clothed with the authority to determine whether Mr. Irwin was entitled to a designation of catastrophic impairment.

Because I am persuaded that the question I have been asked to decide at this hearing is an evidentiary one which is properly the province of the hearing arbitrator, I decline to make the ruling requested by the Applicant and adjourn this issue to the hearing arbitrator.

Expenses:

I leave the expenses of this hearing in the discretion of the hearing arbitrator.

February 12, 2009

Suesan Alves Arbitrator

Date

Financial Services Commission of Ontario