Douglas Keffer v. Wawanesa Mutual Insurance Company, 2009 ONFSCDRS 38

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 38

FSCO A07-000940

BETWEEN:

DOUGLAS KEFFER

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY ISSUES

Before: Anne Sone

Heard: April 16, 2008, at the offices of the Financial Services Commission of Ontario in Toronto. Final written submissions were received by May 5, 2008.

Appearances: Douglas O’Toole for Mr. Keffer

Katherine E. Kolnhofer for Wawanesa Mutual Insurance Company

TABLE OF CONTENTS

INTRODUCTION........................................................................................................................... 4

Issues........................................................................................................................................ 4

Result........................................................................................................................................ 4

BACKGROUND............................................................................................................................. 5

With Respect to Mr. Keffer’s Claims................................................................................ 5

Medical Reports..................................................................................................................... 9

Examinations for Discovery of Mr. Keffer

and his wife, Ms. Roseann Alfreda Keffer..................................................................... 13

ANALYSIS..................................................................................................................................... 14

Law Regarding Multiplicity of Proceedings.................................................................. 14

Summary of Wawanesa’s Submissions

Regarding Multiplicity of Proceedings........................................................................... 16

Summary of Mr. Keffer’s Submissions

Regarding Multiplicity of Proceedings........................................................................... 17

Analysis and Conclusion Regarding

Multiplicity of Proceedings................................................................................................ 21

Governing Principles to Determine Whether

a person is Precluded from Proceeding before

both a Court and the Commission................................................................................... 24

1. Does the Arbitration involve issues “substantially similar”

to those in the civil action?............................................................................. 24

(a) Income Replacement Benefits..................................................................... 25

(b) Attendant Care Benefits and Catastrophic Impairment............................ 25

(c) Special Award................................................................................................. 29

(d) Conclusion regarding whether the arbitration involves issues

that are substantially similar to those in the civil action............................ 29

2. How far along has the civil action proceeded (for example,

have discoveries taken place on the issues before the court)?........... 32

3. Is the civil action broader in scope than the arbitration,

both in terms of the issues involved and the relief sought?................. 34

4. Is there any serious impediment to having the issues

in the arbitration dealt with in the court proceeding?............................. 36

(a) Delay................................................................................................................. 36

(b) Costs................................................................................................................. 37

5. Would permitting the Applicant to proceed with the

arbitration unduly duplicate proceedings, leading to

greater costs and delays, and raising the spectre of

inconsistent results?......................................................................................... 38

Alternative Remedy – Withdrawal of Civil Action Against Wawanesa........................ 42

Remedy......................................................................................................................................... 44

Summary of My Conclusions.................................................................................................. 45

EXPENSES................................................................................................................................... 46

ARBITRATION ORDER

INTRODUCTION:

The Applicant, Douglas Keffer, was injured in a motor vehicle accident on April 1, 1999. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Keffer applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The preliminary issues are:

1. Is Mr. Keffer barred from arbitrating the issue of attendant care benefits claimed from Wawanesa from December 1, 2001 to date and ongoing, at the rate of $5,726.50 per month?

2. Is Mr. Keffer barred from arbitrating the determination of catastrophic impairment arising from the April 1, 1999 accident?

3. Is Mr. Keffer barred from arbitrating the determination of a special award arising from the April 1, 1999 accident?

4. Is Wawanesa liable to pay Mr. Keffer’s expenses of the preliminary issues hearing pursuant to subsection 282(11) of the Insurance Act?

5. Is Mr. Keffer liable to pay Wawanesa’s expenses of the preliminary issues hearing pursuant to section 282(11) of the Insurance Act?

Result:

1. This arbitration proceeding is stayed.

2. The issue of the expenses of the preliminary issues hearing is deferred pending submissions on the issue of entitlement to and amount of expenses in accordance with Rule 79 of the Dispute Resolution Practice Code.

BACKGROUND:

This case raises questions about whether and to what extent an applicant can conduct different aspects of his case simultaneously in the Ontario Superior Court and at the Commission. It is further complicated by Mr. Keffer being involved in three accidents with two different insurers. In addition to an April 1, 1999 accident where he was insured by Wawanesa, (“the Wawanesa accident”), Mr. Keffer was in two further accidents where he was insured by Belair Insurance Company Inc. (“Belair”). The first was on August 24, 2001 (“the first Belair Accident”) and the second was on December 14, 2001 (“the second Belair Accident”). Although the action in Superior Court is against both Wawanesa and Belair², Mr. Keffer has only applied for arbitration against Wawanesa.

Mr. Keffer applied to Wawanesa for statutory accident benefits on August 11, 2000 (one and one-half years after the Wawanesa accident).³

On April 17, 2002, at the request of Belair, Ms. Karen Carney, an occupational therapist, assessed Mr. Keffer’s attendant care needs at $5,499.64 per month.⁴

On May 22, 2002, Mr. Keffer’s representative requested Wawanesa to pay attendant care benefits at the rate of $3,000 per month for the period from January 2000 to August 24, 2001.⁵

In a letter dated June 6, 2002, Wawanesa rejected Mr. Keffer’s claim for attendant care benefits in relation to the Wawanesa accident. The letter states as follows:

At the request of Belair Direct Insurance (the Accident Benefit insurer for the loss of August 24, 2001), an Occupational Therapy Assessment including an Assessment of Attendant Care Needs (Form 1) was Completed on April 17, 2002, 3 years post Mr. Keffer’s motor vehicle accident for which his Accident Benefit claim was presented to our Company.

The Assessment was completed by Karen Carney from Sibley and Associates. In

Ms. Carney’s opinion, the Total Assessed Monthly Attendant Care Benefit was $5499.64 on April 17, 2002. We question the relevance of this report as it relates to any impairment caused in the motor vehicle accident three years earlier. Your client continued …to work following the accident in April 1999 and we understand that as a result of the significant impairment caused in the second motor vehicle accident (August 2001), he could not return to work in any capacity. In addition, your client was involved in a third motor vehicle accident of December 2001.⁶

Mr. Keffer initially applied for mediation at the Commission on July 10, 2002, claiming attendant care and housekeeping benefits from Wawanesa. The mediation failed and the Mediator’s Report was issued on December 17, 2002. In it, Mr. Keffer claimed attendant care benefits from January 1, 2000 to April 1, 2001, at the rate of $3,000 per month.

On January 15, 2004, Dr. Paula Dimeck, the Applicant’s treating neuropsychologist, completed and submitted an Application for Determination of Catastrophic Impairment (OCF-19/59) to Wawanesa.⁷

In a letter dated January 26, 2004, Wawanesa informed Mr. Keffer that it did not accept that he was catastrophically impaired and that it required him to participate in a “CAT DAC” to determine if he was catastrophically impaired.⁸

On June 3, 2004, Mr. Keffer filed a Notice of Action in the Ontario Superior Court against Wawanesa and Belair, claiming income replacement and attendant care benefits, as a result of injuries sustained in accidents on April 1, 1999, August 24, 2001 and December 14, 2001.

On June 10, 2004, Mr. Keffer served a Statement of Claim on Wawanesa claiming attendant care benefits from April 1, 1999 to April 1, 2001, income replacement benefits from April 1, 1999 to August 24, 2001, housekeeping expenses from April 1, 1999 to April 1, 2001, and special damages. Mr. Keffer also alleges that Wawanesa refused to pay attendant care benefits for the period of April 1, 1999 to the present, and onward.⁹ Wawanesa delivered its Statement of Defence¹⁰ and a Jury Notice on November 8, 2004.

In the same court action, Mr. Keffer claims against Belair for accident benefits as a result of the Belair accidents, including income replacement benefits from August 7, 2003 to present and onward, attendant care benefits from July 2003 to present and onward, special, general, punitive and aggravated damages.¹¹

Belair delivered its Jury Notice on June 25, 2004.

At an Examination for Discovery of Mr. Keffer conducted on June 21, 2005, Mr. Keffer withdrew his claim for special damages in the court action.

On January 12, 2006, a Designated Assessment Centre (“DAC”) Report stated that “…[t]here is a consensus that Mr. Keffer has a severe psychiatric disorder as a result of his three MVAs.” The DAC found that Mr. Keffer was catastrophically impaired.¹²

On April 28, 2006, Ms. Susan Gerber, an occupational therapist with Rehabilitation Management Inc. assessed Mr. Keffer’s Attendant Care Needs.¹³ The Attendant Care Assessment dated May 3, 2006 and the Attendant Care Form 1 dated April 28, 2006 were submitted to Wawanesa on May 8, 2006.¹⁴

In a fax dated June 23, 2006, Wawanesa advised Mr. Keffer that its position regarding entitlement to attendant care benefits for him was set out in its letter dated June 6, 2002.¹⁵

Belair delivered its Statement of Defence on November 20, 2006. Belair alleges that the Wawanesa accident was the cause of Mr. Keffer’s complaints and disabilities. Belair also indicates that it paid Mr. Keffer attendant care benefits from August 24, 2001 to June 17, 2003.

On December 14, 2006, Mr. Keffer applied to the Commission for mediation of Wawanesa’s denial of attendant care benefits from December 1, 2001 to present and ongoing. At Wawanesa’s request, the issue of whether Mr. Keffer was catastrophically impaired was added to the mediation.

On March 2, 2007, Belair conducted an insurer’s examination that also found that Mr. Keffer was catastrophically impaired, and stated that all three of his accidents made a material contribution to his impairment. Belair’s examination team concluded that: “…Mr. Keffer meets the definition of catastrophic impairment under the mental and behavioural (g) criterion of Part 1 Section 2 of the [SABS] …all three accidents have made a material contribution, as described.”¹⁶

After a March 8, 2007 mediation at the Commission failed, Mr. Keffer applied on May 2, 2007 for arbitration against Wawanesa seeking determination of catastrophic impairment, attendant care benefits from December 1, 2001 to present and ongoing at the rate of $5,726.50 per month, and a special award.

In its Response to the Application for Arbitration dated June 11, 2007, Wawanesa states, among other things:

…that the applicant is barred from arbitrating the determination of catastrophic impairment, attendant care benefits and a Special Award arising from the April 1, 1999 accident, as these issues are currently being litigated in the Kitchener Superior Court of Justice action … That action also involves the defendant Belair in regard to the August 24, 2001 and December 14, 2001 accidents and overlapping claims for attendant care and other accident benefits.

Wawanesa also states in its Response, that the “applicant is barred from arbitrating these claims as the issue of disability both pre and post 2 years in relation to attendant care benefits arising from the April 1, 1999 accident are currently being litigated…The time periods claimed may require a determination of catastrophic impairment in the court action.”

Medical Reports:

The parties in the civil action have exchanged various medical reports and records. Numerous medical practitioners have provided their opinion with respect to the relationship between Mr. Keffer’s injuries and the accidents of April 1, 1999, August 24, 2001 and December 14, 2001. Wawanesa alleges that these medical reports illustrate the intertwined and overlapping nature of the Applicant’s complaints in relation to the multiple motor vehicle accidents.

Following the April 1, 1999 accident, Mr. Keffer was treated at Kinetex Innovative Assessment and Rehab Centre Inc. (“Kinetex”) for whiplash, lumbar and thoracic joint dysfunction, and hip, shoulder and rib injuries. He was also seen for six sessions of counselling to help him to develop basic chronic pain/stress management strategies. According to clinical records, he had made some recovery from these injuries by the end of July 2001, but was still experiencing lower back pain, neck pain and headaches, as well as problems with attention, concentration and memory.¹⁷

Because his cognitive difficulties did not resolve following an improvement in his coping skills, Mr. Keffer was seen for a neuropsychological assessment in August 2001. The results of the neuropsychological assessment revealed mild impairments in working memory and attention, as well as impaired performance on complex visual memory tasks.¹⁸

In a report by the Applicant’s treating practitioners dated August 30, 2001, Dr. Richardson, physician, Mr. Chris Coughlin, kinesiologist, and Mr. Neil Boon, physiotherapist, addressed the issue of whether the Applicant had any ongoing physical impairment or disability as a result of the accident on August 24, 2001. They concluded that the Applicant had “not fully recovered from previous motor vehicle accident injuries from 1999” and that this previous accident was a “potential barrier to recovery”.¹⁹

In a report dated September 7, 2001, Dr. John Heitzner, the Applicant’s neurologist, concluded that the second motor vehicle accident (August 24, 2001) exacerbated the Applicant’s pre-existing neck, low back pain and cervicogenic headaches from the first accident (April 1, 1999).²⁰

In a report dated October 31, 2001, Dr. Dimeck stated that following Mr. Keffer’s second accident on August 24, 2001, he:

reported increased difficulties with attention, concentration, and memory; ‘terrible headaches’, a significant increase in neck pain, and pain in his lower back, right leg and foot. He also reported pain in both of his shoulders, and numbness in his arms at night. Emotionally, Mr. Keffer reported a high degree of driving anxiety, and his wife, Roseanne [sic], reported that her husband was demonstrating outbursts of anger, was not sleeping well, and was frequently getting lost while driving.

Mr. Keffer was in a third accident on December 14, 2001. It was caused by a tire blowing out, while he was driving his truck. Mr. Keffer reported it to Dr. Dimeck as very minor. He stated that he did not strike his head or sustain any concussive injuries, but did experience injuries to his left knee and shoulder.

Because Mr. Keffer’s perceptual, cognitive, and processing difficulties appeared to worsen through this time period, and because he appeared to have increasing difficulty in coping with these problems, Dr. Dimeck carried out a second neuropsychological assessment. Dr. Dimeck’s report dated May 12, 2002, suggests a significant deterioration in a number of areas of cognitive and perceptual abilities, namely memory and executive functioning, as well as significant changes in Mr. Keffer’s psychological and emotional functioning.

In his report dated January 2, 2002, Dr. Dwight J. Stewart, neurologist, indicated the following:

This gentleman has been involved in two motor vehicle collisions in the past two years. Neither of these involved loss of consciousness but both resulted in presumably concussive injuries. He has demonstrated a variety of personality and cognitive, executive function problems. Given the extent of his complaints, it is hard to reconcile with the minor mechanism of injury…²¹

Dr. Andrew Kertesz, neurologist, assessed the Applicant. In his report dated November 21, 2002, he commented on the Applicant’s “unusual situation of behavioural and cognitive deterioration after head injuries”, which he indicated:

…were relatively minor, the first one occurring on April 11, 1999 [sic]. He did not lose consciousness with either of them. He struck the front of his head with the first one and the second on August 24, 2001. He had a whiplash injury when his vehicle was rear-ended. Apparently all his complaints date from the time of the first accident, but he was not a reliable historian.

This man seems to have developed a significant behavioural disorder that is not compatible with minor head injuries. Even though frontal lobe deficits are seen after major head injuries this is not explainable, on the basis of the described MVAs…²²

Dr. Michel P. Rathbone, a neurologist, prepared a medical-legal report dated September 29, 2003 for Mr. Keffer. Dr. Rathbone states that the pains in Mr. Keffer’s head, neck, back, right arm and left leg were further aggravated by both Belair accidents.

Dr. Rathbone also indicated that Mr. Keffer felt that the first Belair accident substantially worsened his pains and his difficulties with attention, concentration, memory and personality changes. ²³

In a neuropsychological report²⁴ dated January 15, 2004, Dr. Dimeck reviewed various neuropsychological tests that Mr. Keffer had undergone. She noticed that Mr. Keffer’s condition continued to deteriorate over the summer months of 2002.

Having worked with Mr. Keffer since April 2001, Dr. Dimeck opined that:

…as a result of repeated trauma, Mr. Keffer’s brain was more seriously injured than originally suspected and that this repeated trauma has precipitated a neurodegenerative process which is reflected as fronto-temporal dementia. As a result of injuries to his neck and back, Mr. Keffer has also developed a chronic pain condition, and all of these stressors have contributed to a major depression and a stress disorder.

It appears that the most significant contributing factors to the Applicant’s symptom presentation were the Wawanesa accident and the first Belair accident.

Examinations for Discovery of Mr. Keffer and his wife,

Ms. Roseann Alfreda Keffer:

It is clear from the transcripts of examinations for discovery of Mr. Keffer and his wife,

Ms. Roseann Alfreda Keffer, that they are unsure as to the effect of the accidents individually on

Mr. Keffer’s impairments.

On June 21, 2005, at his examination for discovery in the tort action, Mr. Keffer testified that he was unable to distinguish or even recall his injuries in relation to each of the motor vehicle accidents, including the specific injuries (and resulting damages) stemming from the April 1, 1999 motor vehicle accident.²⁵

At that examination for discovery, Mr. Deutschmann, Mr. Keffer’s counsel, confirmed that it was not clear as to which of his injuries (and the effects) related to each of the three accidents. ²⁶

On December 13, 2007, Mr. Keffer’s wife was examined for discovery as a non-party witness.

Ms. Keffer, testified as to her observations of Mr. Keffer in the time periods before and following the April 1, 1999 motor vehicle accident. Her evidence revealed her inability to connect or comment on the relationship between Mr. Keffer’s injuries and each of the accidents.²⁷

Ms. Keffer also testified that her husband’s injuries varied from the time of the April 1, 1999 motor vehicle accident to his August 24, 2001 collision, and then his subsequent accident on December 14, 2001. For example, with respect to Mr. Keffer’s incontinence, she confirmed that his medical condition was not static over time.²⁸

ANALYSIS:

Law regarding Multiplicity of Proceedings:

Section 281(1) of the Insurance Act provides, in part, that if mediation fails, the insured person may bring a proceeding in a court of competent jurisdiction or may refer the issues in dispute to an arbitrator. [Emphasis added]

The basic common law rule against multiple proceedings is set out in section 138 of the Courts of Justice Act²⁹, which provides that: “As far as possible, multiplicity of legal proceedings shall be avoided.”

Mr. Keffer initiated a civil action that is broader in nature than the arbitration. The court action generally includes the issues in dispute in the arbitration.

In Scott and Motor Vehicle Accident Claims Fund and Royal Insurance Company of Canada³⁰, Arbitrator Blackman found that the Commission does not have jurisdiction to hear an arbitration where an applicant has earlier commenced a far more comprehensive court action, encompassing the same issues and burden of proof as the arbitration proceeding. Specifically Arbitrator Blackman found that:

…given the unnecessary expense to Royal of defending two overlapping proceedings, and the very real potential for conflicting determinations against Royal both on the exclusion defence and on the question of entitlement, that is inappropriate for both proceedings to continue against Royal. ³¹

The Schedule “precludes an insured from travelling down both paths of arbitration and litigation” in respect of essentially the same claims or issues.³²

An insured may not pursue a dispute in more than one forum, but is not required to pursue all of his or her disputes in only one forum. Arbitrator Bayefsky set out the principles governing the question as to whether a person is precluded from proceeding before both a court and the Commission in King and Royal Insurance Company of Canada. ³³ These principles include:

1. Does the arbitration involve issues “substantially similar” to those in the civil action?

2. How far along has the civil action proceeded (for example, have discoveries taken place on the issues before the court)?

3. Is the civil action broader in scope than the arbitration, both in terms of the issues involved and the relief sought?

4. Is there any serious impediment to having the issues in the arbitration dealt with in the court proceeding?

5. Would permitting the Applicant to proceed with the arbitration unduly duplicate proceedings, leading to greater costs and delays, and raising the spectre of inconsistent results?

In Mangat and Non-Marine Underwriters, Mbrs. of Lloyd’s³⁴, Director’s Delegate Draper supported the rule against multiplicity of proceedings when he stated:

The rule against multiple proceedings is one of the more basic common law principles. It is based on concerns that multiple proceedings will increase the cost and complexity of litigation, and lead to inconsistent results that undermine the credibility of the system.

The situation is fundamentally different if, as here, the insured person first elects to go to court. While a subsequent mediation may offer a further choice of forum, the insured person may not be allowed to proceed in arbitration if the claims could reasonably have been added to the court action, and allowing both proceedings to continue would result in both forums dealing with evidence or issues that substantially overlap.

Summary of Wawanesa’s Submissions regarding Multiplicity of Proceedings:

Wawanesa submits that the medical records clearly establish that cause of the Applicant’s injuries (arising from three accidents connected to two insurers) is a major issue to be determined by the court in the civil action. To attempt to advance a subset of claims arising from one of these accidents alone, in a separate proceeding such as an arbitration, will lead to potentially inconsistent and irreconcilable findings in different fora, is an abuse of process and a significant waste of time and legal expense.

According to Wawanesa, all of these issues are encompassed in the civil action, which is broader in nature and inclusive of the arbitration issues relating to the Wawanesa accident.

In Wawanesa’s view, the ongoing court action is the appropriate forum in which the arbitration issues should be heard, and there is no particular impediment to having the issues in the arbitration dealt with in the court proceeding.

Wawanesa states that the question is not simply whether two proceedings involve distinct benefits, but rather the overlapping nature of the issues in dispute. While the arbitration claims may appear small and discrete, they raise many of the same issues being contested in the consolidated court action. Particularly important is the causation question, and there will be a substantial amount of evidence that the parties will need to present in both proceedings.

Wawanesa submits that the arbitration should be dismissed, or in the alternative, permanently stayed, based on the following considerations:

a. The claims in each proceeding are not different or distinct matters, justifying multiple proceedings.

b. The same parties are involved in both proceedings and the Applicant/Plaintiff has the chief burden of proof in both fora.

c. The litigation has progressed to the point of the discovery stage and is well under way.

d. The court action was commenced approximately three years before the application for arbitration was filed.

e. The court action involves larger questions including pre-accident health, multiple motor vehicle accidents involving more than one insurer, pivotal causation questions, multiple issues and a claim for special, general, punitive and aggravated damages and costs.

f. The court action includes a broad claim for accident benefits, including attendant care benefits to the present and onward, which includes the benefits being claimed in the arbitration.

g. The same evidence will be required in both fora.

h. There is no obvious impediment to the Applicant in having the issues heard in the court action.

i. There is a serious risk that the two proceedings will require substantially overlapping medical evidence, inflating the overall cost of litigation.

j. The overlapping factual and legal issues create a real possibility of inconsistent findings, and these findings are better made in the more comprehensive proceeding.

Summary of Mr. Keffer’s Submissions regarding Multiplicity of Proceedings:

Mr. Keffer vigourously opposes Wawanesa’s motion for the following reasons:

a. The explicit wording of the Insurance Act bars the application of the common law rule against multiple proceedings to an Application for Arbitration made pursuant to section 282 of that Act.

b. Sections 279 to 283 of the Insurance Act comprise a complete code for resolving disputes between insured persons and insurers regarding statutory accident benefits and, as such, these sections of the Act exclude or supplant all of the common law, including the rule against multiple proceedings.³⁵ [Mr. Keffer’s emphasis]

c. Wawanesa has not addressed whether the common law rule against multiple proceedings can even be considered in the face of an Application for Arbitration made pursuant to subsection 282(1) of the Insurance Act.

Mr. Keffer submits that it is well established in law that, to the extent the legislature has set out procedure in a statute, a tribunal is bound by that procedure. A tribunal cannot make regulations or rules that, “amend, alter, enlarge or limit the substantive terms of the Act.”³⁶

He further submits that if statutory provisions are in force that relate to a function of the tribunal, those provisions have to be followed even if they are at odds with policy statements.³⁷

Mr. Keffer submits that in order to determine how a principle of common law, such as the rule against multiple proceedings, interacts with statute law it is necessary to:

• Analyze, identify and set out the applicable common law;

• Specify the effect of statute law on common law by determining:

  • what common law rule the statute law codifies, replaces or repeals;

  • whether the statute law leaves gaps that the common law must fill;

  • and whether the statute law is a complete code that excludes or supplants all of the common law, in the specific area of law involved.³⁸

Mr. Keffer also refers to Carleton Condominium Corp. No. 441 v. Ontario New Home Warranty Program.³⁹ In this case, the Divisional Court of Ontario considered an application for judicial review of a decision by the Commercial Registration Appeal Tribunal to adjourn, sine die, a claim made to the Ontario New Home Warranty Program.

The Court considered subsection 16(3) of the Ontario New Home Warranties Plan Act ⁴⁰, which reads, in part: “Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing…”

Upon considering the above-noted provision, the Divisional Court held that the section imposed a statutory duty upon the Tribunal to hold a hearing and stated that the “…statutory duty…overrides the general rule against multiplicity of proceedings that was applied by the Tribunal.”

Section 282 of the Insurance Act states as follows:

1An insured person seeking arbitration under this section shall file an application for the appointment of an arbitrator with the Commission.

2The Director shall ensure that an arbitrator is appointed promptly.

3The arbitrator shall determine all issues in dispute…

Mr. Keffer argues that since the Insurance Act (or its regulations) does not contain a provision stating that as far as possible, multiplicity of proceedings are to be avoided, one can assume that the legislature did not intend the common law rule against multiple proceedings to apply to proceedings commenced pursuant to sections 280 to 283 of the Insurance Act.

Mr. Keffer also refers to subsection 279(2) of the Insurance Act which states: “Any restriction on a party’s right to mediate, litigate, appeal or apply to vary an order as provided in sections 280 to 284…is void except as provided in the regulations.”

In Mr. Keffer’s opinion, the wording of subsection 279(2), in conjunction with the absence of any formal codification of the common law rule against multiple proceedings, leads to the conclusion that Mr. Keffer’s Application for Arbitration cannot be either barred or stayed as the Commission lacks the requisite legislative authority to do so.

Alternatively, Mr. Keffer argues that in the event the rule against multiple proceedings applies to an Application for Arbitration made pursuant to section 282 of the Insurance Act, that Mr. Keffer’s Application does not offend this rule because:

a. The issues in the civil action are not “substantially similar” to those raised in the arbitration.

b. The civil action is far along and to add issues via an amendment to the Statement of Claim would cause profound delays.

c. The arbitration is broader in scope than the civil action, both in terms of the issues involved and the relief sought.

d. There are serious impediments to having the issues in the arbitration dealt with in the civil action.

e. Permitting the arbitration to proceed would not unduly duplicate proceedings, lead to greater costs or delays or raise the spectre of inconsistent results.

f. Barring or staying Mr. Keffer’s application for arbitration would result in a significant prejudice to him because of:

i. the costs of prosecuting a civil action versus the costs of arbitrating an issue before Commission;

ii. the likelihood of having to participate in further examinations for discovery and the associated legal costs of having counsel prepare for, advise and accompany Mr. Keffer to further examinations for discovery;

iii. the substantial costs Mr. Keffer would have to incur to retain experts to opine on the issues that are the subject of the arbitration in the civil action; and

iv. the delay in the trial of the civil action will, at least potentially, be extremely prejudicial to Mr. Keffer.

Analysis and Conclusion regarding Multiplicity of Proceedings:

I do not agree with Mr. Keffer’s interpretation of sections 279 to 283 of the Insurance Act as a “complete code” which excludes the operation of the common law, as well as the statutory provisions of the Courts of Justice Act, such as the rule against multiplicity of legal proceedings. Arbitrators frequently apply and consider the common law in their determinations.⁴¹

The wording of section 281 of the Insurance Act specifically requires the insured to choose between instituting a court proceeding or arbitration. By its clear and unambiguous language, a person is given a choice of forum where he or she could have their claim resolved, namely arbitration or litigation. Once having made a choice, the individual is no longer entitled to re-elect, otherwise the insured could re-elect repeatedly without limit.⁴²

In the past, the Supreme Court of Canada has relied on the so-called “plain meaning rule” of statutory interpretation, which has been described as follows:

… the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the Act and intention of Parliament.⁴³

Subsequently, Professor Ruth Sullivan reformulated a “modern” interpretation method as follows:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is the outcome is reasonable and just.⁴⁴

Looking at the Insurance Act as a whole, there is no indication that the legislature intended to exclude the common law to fill in the gaps, so to speak. In my view this interpretation is appropriate since it can be justified in terms of its plausibility and its promotion of legislative purpose (to provide fair resolution of statutory accident benefit claims). In addition, this interpretation provides for an outcome that is reasonable and just.

The Applicant proposes that subsection 279(2) of the Insurance Act supports his argument that there can be no restriction on his right to arbitrate on whatever issues he chooses and whenever he chooses. This section of the Act is specifically entitled “No opting out.” It was intended to prohibit insured and/or insurers from opting out of the dispute resolution procedure set out in sections 279 to 283. For example, an insurer and insured could not agree that a lower premium would be paid in exchange for “opting out” from these sections entirely.

The Applicant’s interpretation that the “opting out” section means he has no restriction on ability to arbitrate is inherently inconsistent with section 281 of the Insurance Act which clearly sets out a choice for the insured to arbitrate or litigate.

Further, pursuant to subsection 23(1) of the Statutory Powers Procedure Act⁴⁵, a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. Accordingly, if a situation arises where I find that there is a multiplicity of proceedings and that this is an abuse of the Commission’s processes, I may make an appropriate order to prevent this abuse.

Mr. Keffer referred to the Carleton Condominium⁴⁶ case for authority that a tribunal’s statutory duty to hold a hearing overrides the general rule against multiplicity of proceedings. However, in that case the Court justified its interpretation by citing the regulations to the Ontario New Home Warranties Plan Act.⁴⁷ The Court pointed out that these regulations obviously contemplate prosecuting an action in respect of the defects leading to a claim, after the Program has made payment out of the guarantee fund. The Court indicated that the decision of the Tribunal in that case required a reversal in that order of proceedings. In the case at hand, there is no such justification for overriding the common law rule against multiple proceedings.

In addition, I not only find the appeal ruling in Mangat⁴⁸ more persuasive than the Applicant’s argument, I am also bound by it. Further, I agree with Wawanesa that there are legitimate concerns that multiple proceedings will increase the cost and complexity of this litigation, and potentially lead to inconsistent results that would undermine the credibility of the system.

Governing Principles to Determine whether a person is precluded from proceeding before both a court and the Commission:

As indicated earlier in this decision, in King⁴⁹, Arbitrator Bayefsky set out five governing principles to determine whether a person is precluded from proceeding before both a court and the Commission. I will now review them in order.

1) Does the arbitration involve issues “substantially similar” to those in the civil action?

The issues in dispute between Mr. Keffer and Wawanesa in the civil action are:

• Mr. Keffer’s entitlement to income replacement benefits for the period April 1, 1999 to August 24, 2001; and

• Mr. Keffer’s entitlement to attendant care benefits for the period April 1, 1999 to April 1, 2001.⁵⁰

The issues in dispute between Mr. Keffer and Belair in the civil action are:

• Mr. Keffer’s entitlement to income replacement benefits for the period from August 7, 2003 to present and onward;

• Mr. Keffer’s entitlement to attendant care benefits for the period July 2003 to present and onward; and

• Special, General, Punitive and Aggravated Damages in the amount of $1,000,000.00.

The issues raised in Mr. Keffer’s Application for Arbitration against Wawanesa are:

• Mr. Keffer’s entitlement to attendant care benefits at the rate of $5,726.50 monthly for the period from December 1, 2001 to the present and ongoing;

• Whether Mr. Keffer is catastrophically impaired as a result of the Wawanesa accident; and

• Mr. Keffer’s entitlement to a special award.

(a) Income Replacement Benefits

Income replacement benefits do not form part of the arbitration, so there is no danger of substantially similar claims under this heading.⁵¹

(b) Attendant Care Benefits and Catastrophic Impairment

In the arbitration, the Applicant claims attendant care benefits from December 1, 2001 to present and ongoing. In his court action, the Applicant claims attendant care benefits from Wawanesa from April 1, 1999 to April 1, 2001.⁵² In addition, the Applicant claims attendant care benefits from Belair from July 2003 to present and onward. Mr. Keffer has effectively sought attendant care benefits for the same time period after July 2003, from both Wawanesa and Belair in the arbitration and the court action.

Wawanesa argues that attendant care benefits claimed up to the two-year mark are not distinct from attendant care benefits claimed after the two-year mark. The fact that the test changes and the scope of the arbitrator’s inquiry broadens after the two-year mark does not make the claim for these benefits after the two-year mark a separate issue or matter from a claim for these benefits before the two-year mark.⁵³ An arbitrator cannot consider attendant care benefits in the post two year period without engaging in a detailed inquiry as to the medical evidence and entitlement in the initial two-year period.

Wawanesa states that determining entitlement to attendant care benefits during the first two-year period in one forum and subsequently determining entitlement to the same benefit after two years in a different forum could lead to absurd and inconsistent findings, as well as significant duplication of evidence and expense. According to Wawanesa, an arbitrator cannot find entitlement to attendant care benefits after two years, when entitlement to attendant care benefits in the first two years is still in dispute and a live issue in the court proceeding.

Insofar as a claim for catastrophic impairment is concerned, Wawanesa argues that, in Mr. Keffer’s Statement of Claim, he states that Wawanesa “…has refused to pay Attendant Care benefits…for the period of April 1, 1999 to the present, and onward…” and that “[b]y virtue of the claims for benefits to the ‘present and onward’… [Mr. Keffer] has put into issue determining whether Mr. Keffer is catastrophically impaired into the court action”. In addition, Mr. Keffer is claiming attendant care benefits against Belair in excess of 104 weeks after the second Belair insured accident.⁵⁴

Mr. Keffer submits that in the civil action his disputes with Wawanesa are limited solely to the period of time prior to either of the Belair Accidents. Accordingly, while the credibility and cause of the symptoms which Mr. Keffer alleges give rise to an entitlement to income replacement and attendant care benefits from Wawanesa in the civil action may well be in dispute, the potential causal contribution of the Belair accidents to these symptoms is not an issue in the civil action as between Mr. Keffer and Wawanesa.

He also states that a plain reading of the Statement of Claim makes it perfectly clear that there is no claim for determination of catastrophic impairment.

Prior to December 14, 2006, Mr. Keffer had not filed any Application for Mediation with respect to his entitlement to attendant care benefits for the period December 1, 2001 and forward.

Further, neither Mr. Keffer nor Wawanesa ever filed an Application for Mediation with respect to the issue of whether Mr. Keffer is catastrophically impaired as a result of the Wawanesa Accident and, in fact, this issue was not added to any proceeding until the mediation that took place on March 8, 2007.⁵⁵

In addition, when Mr. Keffer submitted his Application for Mediation, on December 14, 2006, the Schedule stated at section 50 that:

An insured person shall not commence a mediation proceeding under section 280 of the Act unless,

(b) the insured person, if he or she was requested to undergo a designated assessment under section 43, has undergone the designated assessment and has complied with that section.

Pursuant to s. 40(2)(c) of the Schedule at that time, on January 26, 2004, Wawanesa required

Mr. Keffer to be assessed by a DAC to determine whether he was catastrophically impaired (“CAT DAC”).⁵⁶

The DAC did not start assessing Mr. Keffer until August 10, 2005 and did not finish until December 5, 2005. The CAT DAC report was finalized on January 12, 2006.⁵⁷

Mr. Keffer argues that his claim (in his Statement of Claim) for attendant care benefits beyond 104 weeks of the accidents was not an implicit claim that he was catastrophically impaired because:

• At the time the Statement of Claim was issued and served the issue of catastrophic impairment had not been mediated and, as such, litigation of the issue would be barred by the operation of s. 281(2) of the Insurance Act.⁵⁸

• At the time the Statement of Claim was issued and served Wawanesa had given notice that, pursuant to section 40 of the Schedule, it required Mr. Keffer to participate in a CAT DAC.

• The above-noted CAT DAC had not been completed by the time the Statement of Claim in the civil action was issued and served. Accordingly, any attempt by Mr. Keffer to mediate the issue of catastrophic impairment, let alone litigate, would have been barred by the operation of section 50 of the Schedule.

I have considered Mr. Keffer’s submissions regarding whether a claim for catastrophic impairment can be implied in his Statement of Claim (due to his claim for attendant care benefits beyond 104 weeks).⁵⁹ He argues that it cannot be implied since the claim had not been specifically mediated and his assessment for catastrophic impairment had not been finished at the time the Statement of Claim was issued.

Since the issue of catastrophic impairment has been subsequently mediated, I do not see a barrier to it being determined in the civil action, once it is added to the Statement of Claim. Mr. Keffer relies on Guarantee Company of North America v. Witts⁶⁰ as support for the proposition that he would have to pass through the mandatory mediation process before a making a claim for a certain benefit. However, Cumming, J. makes it clear that an insured may subsequently proceed forward with a mediation to arbitration or to a court action in pursuit of any claim he or she may have to further benefits in respect of the past or the future.⁶¹

(c) Special Award

Wawanesa submits that Mr. Keffer’s claims for special, general, punitive and aggravated damages and damages for bad faith in his tort action⁶² are substantially similar to his claim for a special award in arbitration. As both of these types of claims relate to key determinations of facts, findings of credibility, assessment of relevant medical evidence from multiple sources, causation issues, and adjuster handling of multiple claims, Wawanesa states that addressing these issues in two separate proceedings would increase the cost and complexity of litigation and potentially lead to inconsistent results undermining the credibility of the judicial system.⁶³

Mr. Keffer admits that he initially did make a claim against Wawanesa for special, general, punitive and aggravated damages in his Statement of Claim. However, he states that his counsel confirmed that this claim would be dismissed on a without costs basis against Wawanesa during Mr. Keffer’s Examination for Discovery.⁶⁴

Accordingly, the only currently outstanding claim for any type of award or damages arising from the manner in which Wawanesa adjusted Mr. Keffer’s entitlement to benefits is his claim for a special award, as stated in his current Application for Arbitration.

(d) Conclusion regarding whether the arbitration involves issues that are substantially similar to those in the civil action

Wawanesa submits that Mr. Keffer’s claim for attendant care benefits (albeit for different time periods) in the arbitration and court action overlap sufficiently as to be substantially similar. In addition, Wawanesa argues that the issue of catastrophic impairment is essentially the same in both.

Mr. Keffer argues that the issues raised in his Application for Arbitration are substantially different from the issues being litigated in the civil action. He contends that in the civil action his dispute with Wawanesa is limited solely to the period of time prior to either of the Belair accidents. Accordingly, while the credibility and cause of the symptoms which Mr. Keffer alleges gave rise to an entitlement to the income replacement benefits and attendant care benefits from Wawanesa in the civil action may well be in dispute, the potential causal contribution of the Belair accidents to these symptoms is not an issue in the civil action as between Mr. Keffer and Wawanesa.

Wawanesa points out that Mr. Keffer chose to commence litigation as opposed to arbitration against Wawanesa and Belair for accident benefits as a result of motor vehicle accidents taking place on April 1, 1999, August 24, 2001 and December 14, 2001. The Applicant has raised the issue of disability from all three accidents, including claiming income replacement benefits and attendant care benefits both before and after 104 weeks as against both Wawanesa and Belair. Mr. Keffer’s claim for attendant care benefits after 104 weeks automatically requires a determination of whether he is catastrophically impaired in the court action.

In paragraph 109(b) of the Applicant’s factum, he admits that the issues as raised in the arbitration, include:

Whether said symptoms were [sic] materially contributed to the Wawanesa Accident which will inevitably lead to an extremely complicated discussion about the possible contributions to Mr. Keffer by the Wawanesa Accident versus the Belair Accidents and whether any of the accidents materially contributed to Mr. Keffer’s symptoms.⁶⁵

This quotation shows that the Applicant recognizes the intertwined nature between the Wawanesa and Belair accidents, but inexplicably says that the issues should be addressed in the context of arbitration, which would not involve Belair. Further, the evidence the Applicant is relying upon, including the Assessment of Attendant Care Needs (Form 1), Application for Catastrophic Determination, CAT DAC Report and Insurer’s Examination for Determination of Catastrophic Impairment, were all generated following all three accidents and specifically raise causation issues.

Similarly, in paragraph 109(d) of the Applicant’s factum, Mr. Keffer concedes that the issue of catastrophic impairment would:

not simply involve duelling medical reports, but will involve complicated, lengthy and expensive multidisciplinary assessments by assessors trained in the application of the AMA Guides to the Evaluation of Permanent Impairment, 4th edition.⁶⁶

Wawanesa submits that the “complicated” and “expensive” assessments must also include those requested by Belair, especially as any determination of catastrophic impairment with respect to Wawanesa would be in the context of assessments generated after both the Wawanesa and the Belair accidents took place.

Further, the issue of entitlement to attendant care benefits in the arbitration for the period from December 1, 2001 to present and ongoing, is clearly a part of the civil action. The causal contribution of the Belair accidents to the Applicant’s impairment and entitlement to accident benefits is an issue in both the civil action as well as the arbitration. The causal contribution of the Wawanesa accident to the Applicant’s impairment and entitlement to accident benefits, is an issue in both the civil action as well as the arbitration. The Applicant seeks benefits after 104 weeks in both the court action and the arbitration, as against Belair and Wawanesa respectively. These issues are not discrete; rather the evidence with respect to the entire claim, including the periods after two years, is multifaceted.

In addition, in paragraph 107 of the Applicant’s factum, he concedes that:

…there may be some overlap between the Civil Action and the Arbitration in the sense that veracity of Mr. Keffer’s alleged symptoms is likely to be disputed in both proceedings…⁶⁷

Mr. Keffer submits that the issues raised in his arbitration are not part of the civil action. While in a very technical sense, this may be true, I find his division of issues artificial. What I must consider is whether the issues in the arbitration and the civil action are “substantially similar.”

Irrespective of the differing time periods in each proceeding for attendant care benefits, I find that the arbitration involves issues of credibility, causation, entitlement to attendant care benefits both before and after the two-year mark, as well as catastrophic impairment. These issues are substantially similar to those in the civil action.

2) How far along has the civil action proceeded (for example, have discoveries taken place on the issues before the court)?

Wawanesa submits that the civil proceeding has advanced to the stage where discoveries, while not complete, are well underway.

In subparagraph 3(d)(ii) of the Applicant’s factum, Mr. Keffer concedes that the “civil action is far along…”⁶⁸

Mr. Keffer states that if his Application for Arbitration is barred or stayed his only recourse to obtaining relief for the issues raised in the Application would be to bring a motion to amend the Statement of Claim in the civil action.

According to Mr. Keffer, an amendment to the Statement of Claim seeking a declaration of catastrophic impairment, entitlement to attendant care benefits from December 1, 2001 to the present date, and entitlement to punitive and aggravated damages would give rise to the following:

• The need for further examinations for discovery of him as it is clear from the transcript of the examination for discovery of Mr. Keffer of June 21, 2005, that this examination did not touch on any of these issues;⁶⁹

• Further medical-legal examinations of him at the request of the Wawanesa to address, at the very least, the issue of whether he is, in fact, catastrophically impaired (although there has already been a CAT DAC report to this effect).⁷⁰

• A motion with respect to the Jury Notices filed by Wawanesa and Belair in the civil action as it is well established that the issue of whether an individual is catastrophically impaired within the meaning of the Schedule is an issue to be determined by judge alone and while it has been suggested that, theoretically, the issue could be determined by a trial judge in the absence of a jury while allowing a jury to determine other issues, judges have questioned the practicality of attempting such a trial.

• A delay of the trial as, given the number of parties involved, the complexity of the issues and the possibility that the trial will be a jury trial, the matter would almost certainly require a trial of longer than three weeks which, in Kitchener, would mean the matter would have to be placed on the Long Trial List. Currently the Long Trial List sits twice a year and parties are required to submit an application to the Regional Senior Administrative Judge for consideration of having the matter placed on the Long Trial List.

It is possible that Wawanesa may require further examination for discovery if the arbitration is stayed or barred. However, given that Mr. Keffer was already claiming a catastrophic impairment in the arbitration against Wawanesa and attendant care benefits post the two-year mark in the civil action against Belair, he would have been required to prove he had a catastrophic impairment in any event. Accordingly, I am not convinced that the other steps or delays he mentions will necessarily take place.

Overall, as Mr. Keffer has admitted, I find it fair to say that the civil action is far along.

3) Is the civil action broader in scope than the arbitration, both in terms of the issues involved and the relief sought?

Wawanesa submits that the civil action is broader in scope than the arbitration. It notes that the issue of Mr. Keffer’s disability and entitlement to attendant care benefits (arising from the Wawanesa accident both before and after two years) is currently being litigated. Further, the different times Mr. Keffer is claiming against different insurers, relating to impairments and their possible progression, necessitates determining catastrophic impairment in assessing each accident against each insurer, in the civil action.

Mr. Keffer argues that while there may be some overlap between the civil action and the arbitration in the sense that the veracity of Mr. Keffer’s alleged symptoms is likely to be disputed in both proceedings, the scope of the civil action is much narrower.

In Mr. Keffer’s view, the issues between Mr. Keffer and Wawanesa in the civil action are limited to:

• What symptoms Mr. Keffer was experiencing between April 1, 1999 and August 24, 2001.

• Whether these symptoms were caused by the Wawanesa accident.

• Whether these symptoms caused Mr. Keffer to suffer a substantial inability to perform the essential tasks of his pre-accident employment between April 1, 1999 and August 24, 2001 (the income replacement benefit test).

• Whether, between April 1, 1999 and April 1, 2001, as a result of these symptoms, it was reasonable and necessary for Mr. Keffer to incur expenses for services provided by an aide or attendant (the attendant care test).

Mr. Keffer states that in comparison, the issues raised by his Application for Arbitration include:

• What symptoms Mr. Keffer has experienced between December 1, 2001 and the present date and continues to experience on an ongoing basis.

• Whether the Wawanesa accident materially contributed to Mr. Keffer’s symptoms which will inevitably lead to an extremely complicated discussion about the possible contributions to his symptoms by the Wawanesa accident versus the first and second Belair accidents and whether any of the accidents materially contributed to Mr. Keffer’s symptoms.

• Whether Mr. Keffer suffered a catastrophic impairment within the meaning of the Schedule as a result of the Wawanesa accident. More specifically, whether Mr. Keffer suffers from an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment⁷¹ (“AMA Guides”), that result in 55 per cent or more impairment of his whole person or a class 4 or 5 impairment due to mental or behavioural disorder (the catastrophic impairment test).

• The dispute as to whether Mr. Keffer is catastrophically impaired as a result of the Wawanesa Accident will not simply involve dueling medical reports; it will involve complicated, lengthy and expensive multi-disciplinary assessments by assessors trained in the application of the AMA Guides.

• Whether between December 1, 2001 and the present date, as a result of symptoms materially contributed to by the Wawanesa accident, it was reasonable and necessary for Mr. Keffer to incur expenses for services provided by an aide or attendant (the attendant care test).

• Whether Wawanesa unreasonably withheld or delayed payments to Mr. Keffer (the test for a special award).

However, Mr. Keffer’s analysis completely ignores Belair’s involvement in the civil action and its lack of involvement in the arbitration. He also ignores that he is claiming attendant care benefits against Belair that require proof that Mr. Keffer was catastrophically impaired. In my respectful opinion, Belair’s involvement obviously makes the civil action broader both in terms of the issues and the relief sought.

4) Is there any serious impediment to having the issues in the arbitration dealt with in the court proceeding?

While Mr. Keffer states that his claims must be specifically pleaded pursuant to Rule 25.06(9) of the Rules of Civil Procedure⁷², he acknowledges that he could amend his Statement of Claim pursuant to Rule 2.01 (which permits the claim to be amended at any stage of an action in the absence of prejudice). Mr. Keffer’s main arguments against having the issues in the arbitration dealt with in the court proceeding are the following:

• the delay of the civil action that he anticipates, if his Statement of Claim has to be amended; and

• the costs associated with litigating these issues, most notably the issues of whether Mr. Keffer is catastrophically impaired as a result of the Wawanesa accident.

(a) Delay

Mr. Keffer states that amending his Statement of Claim would delay the civil trial for two reasons. First, Wawanesa would likely require further examinations for discovery of Mr. Keffer. Secondly, Wawanesa is likely to require Mr. Keffer’s attendance at further defence medical examinations.

I summarize Mr. Keffer’s additional arguments that allowing the arbitration to proceed would not lead to greater delays as follows:

• The civil action could proceed independently of the arbitration; thus allowing the arbitration to proceed does not raise the risk of delay.

• With respect to costs and time, arbitrations are far more expeditious than litigation; thus, significant time will be saved if complex issues such as catastrophic impairment, entitlement to past and ongoing attendant care, and entitlement to a special award were determined at arbitration.

• The delay in the trial of the civil action will, at least potentially, be extremely prejudicial to Mr. Keffer.

Regarding delay, Wawanesa argues that Mr. Keffer has already delayed his case by not proceeding as expeditiously as possible. Mr. Keffer counters that under all the circumstances, he has proceeded as swiftly as he prudently could. Due to the complex nature of Mr. Keffer’s situation, I make no finding faulting him or his counsel for causing delay in prosecuting his arbitration or civil action.

Although delay is a significant factor to consider, in my view, Mr. Keffer is speculating about whether Wawanesa will conduct further examinations for discovery of him. Given the vagueness of his testimony and his poor recollection exhibited in his previous Examination for Discovery Wawanesa may choose not to conduct further examinations. Further, even if Wawanesa does require further defence examinations for discovery or further medical examinations for the civil proceedings, and this results in some delay, I am not persuaded that that delay should be determinative.

(b) Costs

With respect to costs, Mr. Keffer states that if the arbitration issues were to be added to the court action, he would be faced with significant costs in terms of retaining medical-legal experts, on top of an additional examination for discovery. Further, should he lose, the costs in court may be higher than expenses awarded at the Commission.

In addition, Mr. Keffer argues that forcing the issues that are the subject of Mr. Keffer’s Application for Arbitration to be litigated will dramatically increase the cost of the litigation for both parties and will be extremely prejudicial to Mr. Keffer given that it will pit his resources and ability to retain medical-legal experts versus the virtually limitless resources of Wawanesa.

Wawanesa submits that Mr. Keffer’s arguments on these points lack merit, particularly when he will still have to prove his claim for benefits both before and after 104 weeks, in addressing his multiple accidents, as against two insurers, in the civil action. Further, Wawanesa states that the argument that the Applicant would be forced to bear increased costs in litigation is flawed, as the Applicant would clearly have increased costs in having to advance substantially similar claims for the same benefits in both litigation and arbitration.

On these points, I agree with Wawanesa that if Mr. Keffer still has to prove his claims in both fora, it is hard to understand how that will be less expensive for him.

5) Would permitting the Applicant to proceed with the arbitration unduly duplicate proceedings, leading to greater costs and delays, and raising the spectre of inconsistent results?

Wawanesa submits that the arbitration claims and the litigation claims in this case do not involve “essentially different lines of inquiry”. According to Wawanesa, the arbitration does not involve a discrete, distinct dispute that can reasonably be dealt with separately from the reality of other factors. The evidence from Mr. Keffer and his spouse at their examinations for discovery confirm the intertwined nature of integral facts and issues relating to multiple accidents and incidents. These include the Applicant’s various injuries, medical status and diagnoses over time. These issues are entangled and causation issues have been pleaded in both fora. Therefore, according to Wawanesa, allowing the Applicant to split his case will likely lead to undue duplication of evidence and effort, cost and time.⁷³

Wawanesa further submits that there is an obvious and real potential for inconsistent findings if both the arbitration and the civil action against Wawanesa were allowed to proceed. For example, the civil action requires the court to determine causation (whether the Wawanesa or Belair accidents are responsible for the Applicant’s complaints, and which insurer is therefore liable for attendant care benefits). It is conceivable that the court could find that the Applicant is not entitled to attendant care benefits as a result of the Wawanesa accident. An arbitrator hearing this proceeding, not having heard the complete evidence regarding the Belair accidents, may find that the Applicant is entitled to attendant care benefits as a result of the Wawanesa accident. This would result in inconsistent and irreconcilable findings and undermine the credibility of the system.⁷⁴

Wawanesa notes that in his Application for Arbitration, Mr. Keffer has claimed attendant care benefits after 104 weeks from December 2001 onward as against Wawanesa. Belair, however, has accepted and paid at least part of Mr. Keffer’s attendant care claim from August 24, 2001 to June 23, 2002,⁷⁵ thereby raising issues of double recovery and whether Mr. Keffer can claim two sets of attendant care benefits from two insurers for the same time period.⁷⁶

Wawanesa gives the following examples of possible inconsistent findings that could result from the claims proceeding in two separate fora:

• The Applicant is entitled to attendant care benefits after two years from Belair in the civil action, as well as from Wawanesa in the arbitration.

• The Applicant is entitled to attendant care benefits after two years from Wawanesa in the arbitration, but not entitled to attendant care benefits for the first two years in the civil action.

• The Applicant is entitled to attendant care benefits after two years from Wawanesa in the civil action, but not entitled to these benefits in the arbitration, or vice-versa.

• The Applicant is catastrophically impaired in relation to the April 1, 1999 accident in the court action (via Belair’s defence) but not in the arbitration, or vice versa.

In addition, Wawanesa argues that the Applicant has applied to determine catastrophic impairment to both Wawanesa and Belair. Both Wawanesa and Belair dispute the catastrophic impairment determination. The catastrophic impairment assessments involving both Wawanesa and Belair confirm that the issues as between the accidents of April 1, 1999, August 24, 2001 and December 14, 2001, and as between the insurers, are inextricably intertwined and that causation is significantly in issue.

In Wawanesa’s view, the issue of the Applicant’s entitlement to accident benefits is clearly complicated by multiple accidents and two insurers. The issues as presented in this arbitration, simply cannot be carved out neatly, resulting in a considered and informed decision. All the parties contest the issues as to which accident, and which insurer, is liable for which accident benefits, and for what time periods, and which accident is responsible for any catastrophic impairment designation. According to Wawanesa, it is necessary for the court where all the parties are present to determine the issues of causation and the credibility of the expert and medical evidence.

Finally, Wawanesa states that the costs to the Applicant in addressing the issues sought to be arbitrated are already being borne by the Applicant in proving his claims in the action. There will be substantial costs to both parties if they have to introduce evidence, (including medical and expert evidence), in both an arbitration and a court proceeding dealing with substantially similar issues.

On the other hand, Mr. Keffer submits that permitting his Application for Arbitration would not unduly duplicate proceedings, would not lead to greater costs or delays, and would not raise the spectre of inconsistent results. He states that there is little risk of inconsistent results if the arbitration and civil action are both allowed to proceed. He provides the following example:

If the court determined that Mr. Keffer was not substantially disabled from performing his pre-accident employment prior to August 24, 2001 and that he was not entitled to attendant care benefits between April 1, 1999 and April 1, 2001 that would not necessarily be inconsistent with a finding at an arbitration that Mr. Keffer became catastrophically impaired following one or both of the Belair Accidents and that the Wawanesa accident rendered Mr. Keffer vulnerable to subsequent injuries and thus materially contributed to his catastrophic impairment and need for attendant care benefits for the period December 1, 2001 forward.

Mr. Keffer states that, conversely, a finding in the arbitration that he was not catastrophically impaired after December 1, 2001 and that the symptoms he suffered after December 1, 2001 (if any) were not materially contributed to by the Wawanesa accident would not necessarily be inconsistent with a finding in the civil action that prior to August 24, 2001, as a result of the Wawanesa accident, Mr. Keffer did suffer symptoms that qualified him for income replacement benefits and/or attendant care benefits (prior to April 1, 2001).

I recognize that Mr. Keffer has legitimate concerns, as indicated earlier, especially about greater costs and delays resulting in prejudice to him; however, I am even more concerned about the spectre of inconsistent results such as double recovery. Should Mr. Keffer be permitted to split his claim into two separate proceedings, he could potentially recover the same benefits for the same time periods, from both of the insurers. On the other hand, another possibility is that the civil action finds, for example, that Belair is not liable for attendant care benefits more than two years after the December 14, 2001 accident. What if an arbitrator finds that Wawanesa is not liable for attendant care benefits during the same period? By splitting his claims between two fora, Mr. Keffer may lose benefits to which he may have otherwise been entitled. These are only two examples of possible inconsistent, unjust and possibly highly prejudicial results.

In view of the complexity of Mr. Keffer’s claims involving multiple accidents and two insurers, and in view of the intertwined nature of the medical and expert evidence regarding credibility, causation and catastrophic determination, I find that permitting Mr. Keffer to proceed with the arbitration would raise the spectre of inconsistent results.

In summary, I agree with Wawanesa that the principles set out in the King⁷⁷ case governing the question as to whether the Applicant is precluded from proceeding before both a court and the Commission are met in this case. The civil proceeding has advanced to the stage where discoveries, while not complete, are well underway. The civil action is clearly broader in scope than the arbitration, in terms of the parties and issues involved and the relief sought. There is no serious impediment to having the issues in arbitration dealt with in the court proceeding. Further any impediment or prejudice in precluding arbitration is outweighed by the greater costs, delays and the spectre of inconsistent results, if the Applicant is permitted to continue both with his civil action and with this arbitration.

Based on my analysis of the principles set out in the King case, I find that Mr. Keffer is precluded from proceeding before both a court and the Commission at the same time.

Alternative Remedy – Withdrawal of Civil Action against Wawanesa:

Mr. Keffer submits that if I determine that the common law rule against multiple proceedings is applicable to Mr. Keffer’s Application for Arbitration, and that his Application does offend the rule against multiple proceedings, it is open to me to order that Mr. Keffer is entitled to proceed with an arbitration of the issues raised in his Application for Arbitration provided that he withdraws his involvement in the civil action, as against Wawanesa, (as was done in the cases of Andreeski and Pilot Insurance Company and Murphy and Certas Direct Insurance Company).⁷⁸

He submits that such an order would be most just, and most consistent with the purpose of the Act.

Wawanesa opposes this course of action for the following reasons:

• In the Murphy case, the Applicant was not precluded from proceeding to arbitration as long as she confirmed in writing within 30 days that she was seeking leave of the court to withdraw or discontinue her court action. In that case, the court action included both tort and accident benefits, in regard to the same motor vehicle accident. At the time the preliminary issue was decided, the tort defendant had settled the action with the applicant, leaving only the accident benefits insurer as a defendant in the proceeding. In other words, both the court action and potential arbitration proceedings involved the same parties and the same motor vehicle accident. [Wawanesa’s emphasis added]

• The Murphy case is clearly distinguishable from the case at hand. Causation is a very live issue in this case. The Applicant’s court action involves multiple accidents and two different insurers and is significantly more complex than the facts in the Murphy case.

• An attempt to seek leave to withdraw the claims as against Wawanesa in the court action⁷⁹, would not dispose of the issues as they would continue to be litigated in the action with Belair. Belair would continue to allege that the Wawanesa accident was the cause of the Applicant’s disability and catastrophic determination. Belair would introduce all the same medical evidence and rely on the same discovery transcripts. A court would still have to determine the issue of causation and entitlement to attendant care and income replacement benefits, which have been claimed from two different insurers for overlapping periods, and which could lead to inconsistent findings and duplication of evidence in two different fora. This is substantially different from the Murphy case, where all issues were being dealt with in only one proceeding with one insurer.

• The court action in this case also involves the issue of income replacement benefits in both the before and after 104-week period as against Wawanesa and Belair respectively. The factual and legal questions to be determined with respect to the Applicant’s ability to work are inextricably connected to the claims for attendant care benefits both before and after 104 weeks. The parties will rely on the same evidence, including the CAT DAC report, and insurer’s examinations. The interplay of benefits claimed, for what time periods, and against whom, in the context of all of the medical evidence and expert testimony generated to date, would have to be presented in each forum to permit the trier to properly comprehend and assess the issues to be determined. This would clearly involve a significant duplication of evidence and potential inconsistent findings.

• As the action has been proceeding over the course of many years, the Applicant would be responsible for costs relating to any withdrawal/discontinuance, which would be significant, and would negate any potential benefit in saving costs through arbitration.

• Permitting Mr. Keffer to proceed with this arbitration would unduly duplicate proceedings, result in overlapping evidence, lead to greater costs, and would raise the spectre of inconsistent findings, thereby putting the administration of justice and our legal processes into disrepute.

I agree with Wawanesa’s submissions on the order Mr. Keffer has proposed. In cases involving one accident and one insurer, an applicant’s undertaking to withdraw from a court proceeding in order to proceed with an arbitration is often a simple and effective way to deal with a “multiplicity of proceedings” issue. Unfortunately, in this case with its multiple accidents, two insurers and intertwined credibility, causation, catastrophic impairment and substantive issues, an undertaking to withdraw the civil action solely against Wawanesa will not address the underlying concerns of duplicated proceedings adding to costs and delays. It also does not address the risk of inconsistent results where the action against Belair is still live. Accordingly, I am not prepared to make an order allowing Mr. Keffer to proceed with the arbitration on the condition that he withdraw his civil proceeding against Wawanesa alone.

Remedy:

As discussed earlier in this decision, Wawanesa is seeking an order barring Mr. Keffer from proceeding to arbitration against it on issues relating to attendant care benefits, a determination of catastrophic impairment and a special award. Although I concur with Wawanesa that this arbitration should be barred while the civil action involving Mr. Keffer’s three accidents is still outstanding, I am not prepared to do so unconditionally. As discussed in Kovacs⁸⁰, there is a range of remedies in these sorts of cases from a stay pending amendment of the relevant Statement of Claim, to a stay pending the outcome of the related court action with a right to withdraw the arbitration, to a dismissal of the arbitration.

It is now up to Mr. Keffer to amend his Statement of Claim. On the other hand, he may wish to pursue his remedies in a different fashion. For example, he may decide to withdraw from the civil proceeding against both insurers and only pursue arbitration. Since I am unable to predict what may occur with the civil proceeding, I am staying the arbitration, pending the outcome of the court action against both Wawanesa and Belair.

Summary of My Conclusions:

Mr. Keffer has been in three accidents involving two different insurers. After the first accident, (insured by Wawanesa), he continued to work. Following the second and third accidents (insured by Belair), a CAT DAC found him to be catastrophically impaired.⁸¹ No one, including the experts, seems sure of the extent that each of the accidents contributed to his impairment. This raises complicated causation issues.

Mr. Keffer started an action in Ontario Superior Court against both Wawanesa and Belair claiming various benefits. He later applied for arbitration at the Commission, but only against Wawanesa and only with respect to attendant care benefits starting two years after the Wawanesa accident⁸² and a special award. Because of the time period (more than two years after the accident) and the amount that he is claiming ($5,726.50 per month) Wawanesa has raised the issue of catastrophic impairment at the arbitration.

When Wawanesa brought a motion to bar Mr. Keffer from proceeding to arbitration, based on the common law rule against multiplicity of proceedings, Mr. Keffer responded that statute law trumps common law. He argued that the specific wording sections 279 to 283 of the Insurance Act required the Commission to hear his arbitration.

I do not agree with Mr. Keffer’s argument. Section 281 of this Act states that an insured person may bring a proceeding in court or refer the issues in dispute to an arbitrator. [Underlining added] It does not provide for an insured person to do both. I also have the power (pursuant to subsection 23(1) of the Statutory Powers Procedure Act) to deal with potential abuse of process.

I agree (and am bound by) Director’s Delegate Draper’s decision in Mangat⁸³ that it is inappropriate to allow an insured person who has started a court action to proceed with an arbitration where that “would result in both forums dealing with evidence or issues that substantially overlap.”

After reviewing the principles set out in King⁸⁴ regarding the question of whether a person is precluded from proceeding before both a court and the Commission, I conclude that the issues in this arbitration and the civil action regarding credibility, causation, benefits and catastrophic impairment are substantially similar (and inextricably intertwined). The civil action is far along and broader in scope in terms of parties, the issues involved and the relief sought. It is open to Mr. Keffer to amend his Statement of Claim to include the issues in dispute in the arbitration. Although Mr. Keffer contends that continuing with both the civil action and the arbitration will cost less and reduce delays, I find that unlikely. Most importantly, I am concerned about duplicating proceedings which could lead to the “spectre of inconsistent results.”⁸⁵

In addition, this is not an instance where it is appropriate to permit Mr. Keffer to continue with his arbitration, provided that he withdraws his civil proceeding against Wawanesa, because this does not address the concern of inconsistent results in the civil proceeding Mr. Keffer is continuing against Belair.

EXPENSES:

Should the parties not agree on the entitlement to or the amount of the legal expenses of this preliminary issue hearing, either party may request that the question of expenses be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 3, 2009

Anne Sone

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 38

FSCO A07-000940

BETWEEN:

DOUGLAS KEFFER

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. This arbitration proceeding is stayed.

April 3, 2009

Anne Sone

Arbitrator

Date

If one were required to look to the Schedule for every step in the dispute resolution process, it would grind to a screeching halt.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Kitchener Superior Court of Justice, Court File No. C-579-04
3. 3Application for Accident Benefits (OCF-1/59), Motion Record of the Responding Party/Applicant, Tab 2.
4. 4Occupational Therapy Activities of Daily Living Checklist, April 17, 2002, Ms. Karen Carney, Sibley & Associates Inc., Motion Record of the Responding Party/Applicant, Tab 6; Assessment of Attendant Care Needs (Form 1) dated April 17, 2002, Ms. Karen Carney, Sibley & Associates Inc., Motion Record of the Responding Party/Applicant, Tab 7.
5. 5Letter dated May 22, 2002 from Ms. Laura Helm, Rehabilitation Specialist at Vital Accident Benefits Inc. to Ms. Julie Marshall, Claims Representative at Wawanesa Mutual Insurance Company, Motion Record of the Responding Party/Applicant, Tab 8.
6. 6Letter dated June 6, 2002 from Ms. Julie Marshall, Senior Adjuster, Wawanesa Mutual Insurance Company to Ms. Laura Helm, Vital Accident Benefits Inc., Motion Record of the Responding Party/Applicant, Tab 9.
7. 7Dr. Dimeck’s Application for Determination of Catastrophic Impairment (OCF-19/59) dated January 15, 2004, Motion Record of the Responding Party/Applicant, Tab 13.
8. 8Letter dated January 26, 2004 from Julie Marshall, Claims Representative at Wawanesa Mutual Insurance Company to Douglas Keffer, Motion Record of the Responding Party/Applicant, Tab 14.
9. 9Paragraph 20 of Mr. Keffer’s Statement of Claim.
10. 10Statement of Defence of Wawanesa Mutual Insurance Company dated November 8, 2004, Motion Record of the Moving Party/Respondent, Tab 6.
11. 11Paragraphs 1(j) (k) and (m) and 43 to 47 of Mr. Keffer’s Statement of Claim.
12. 12Catastrophic Impairment DAC Assessment dated January 12, 2006, Kaplan and Kaplan Psychologists, Motion Record of the Responding Party/Applicant, Tab 16.
13. 13Assessment of Attendant Care Needs dated May 3, 2006 by Ms. Susan Gerber, Rehabilitation Management Inc., Motion Record of the Responding Party/Applicant, Tab 17. Assessment of Attendant Care Needs (Form 1) dated April 28, 2006 by Ms. Susan Gerber, Rehabilitation Management Inc., Motion Record of the Responding Party/Applicant, Tab 18.
14. 14Correspondence dated May 8, 2006 from Ms. Irene Howarth, Client Services Coordinator, Rehabilitation Management Inc. to Ms. Denise King, Wawanesa Mutual Insurance Company, Motion Record of the Responding Party/Applicant, Tab 19.
15. 15Fax dated June 23, 2006 from Ms. Denise King, Wawanesa Mutual Insurance Company to Mr. Robert Deutschmann, Paquette Travers & Deutschmann, Motion Record of the Responding Party/Applicant, Tab 20.
16. 16Insurer’s Examination Report dated March 2, 2007, Catastrophic Impairment Determination, Work Able Centres Inc., Motion Record of the Responding Party/Applicant, Tab 21.
17. 17Report of Kinetex Innovative Assessment & Rehab Centre Inc. dated August 30, 2001, Tab 10.
18. 18Report by Dr. Dimeck dated October 31, 2001, Tab 12 of the Moving Party/Respondent’s Motion Record.
19. 19Assessment Report by Dr. D.B. Richardson, Mr. Chris Coughlin, and Mr. Neil Boon dated August 30, 2001, Tab 10 of the Moving Party/Respondent’s Motion Record.
20. 20Report by Dr. John Heitzner dated September 7, 2001, Tab 11 of the Moving Party/Respondent Motion Record.
21. 21Report by Dr. Dwight J. Stewart dated January 2, 2002, Tab 13 of the Moving Party/Respondent’s Motion Record.
22. 22Report by Dr. Andrew Kertesz dated November 21, 2002, Tab 14 of the Moving Party/Respondent’s Motion Record.
23. 23Report by Dr. Michel P. Rathbone dated September 29, 2003, Tab 15 of the Moving Party/Respondent’s Motion Record.
24. 24Report of Dr. P. Dimeck, dated January 15, 2004, Motion Record of the Responding Party/Applicant, Tab 12.
25. 25Excerpts from the transcript of the examination for discovery of Douglas Keffer held on June 21, 2005, Tab 8 of the Moving Party/Respondent’s Motion Record at pages 50, 57, 63, 65, 67, 93 and 94.
26. 26Excerpts from the transcript of the examination for discovery of Douglas Keffer held on June 21, 2005, Tab 8 of the Moving Party/Respondent’s Motion Record, page 122.
27. 27Excerpts from the transcript of the examination for discovery of a Non-Party, Roseann Alfreda Keffer held on December 13, 2007, Tab 9 of the Moving Party/Respondent’s Motion Record, pages 103 and 104.
28. 28Excerpts from the transcript of the examination for discovery of a Non-Party, Roseann Alfreda Keffer held on December 13, 2007, Tab 9 of the Moving Party/Respondent’s Motion Record at pages 110 and 111.
29. 29R.S.O. 1990, c. C.43, as amended
30. 30(OIC A96-001515, February 28, 1997)
31. 31(OIC A96-001515, February 28, 1997), at page 8
32. 32Sunderani and State Farm Mutual Automobile Insurance Company (FSCO A99-000724, August 31, 2000)
33. 33(FSCO A98-000234, March 24, 1999)
34. 34(FSCO P00-00020, August 1, 2000), Appeal
35. 35Liberty Mutual Insurance Co. v. Fernandes 2006 CanLII 30212 (ON CA), [2006] O.J. No. 3514, at paragraph 18
36. 36Opron Inc. v. Emco Ltd. (1980), 1980 CanLII 2680 (NB CA), 112 D.L.R. (3d) 288 (N.B.C.A.)
37. 37Capital Cities Communications Inc. v. Canada (Radio-Television & Telecommunication Commission) (1977), 1977 CanLII 12 (SCC), 81 D.L.R. (3d) 609 (S.C.C.)
38. 382747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool) 1996 CanLII 153 (SCC), [1996] S.C.J. No. 112, at paragraphs 95-97
39. 391996 CanLII 11777 (ON CTGD), [1996] O.J. No. 1345
40. 40R.S.O. 1990, c. O.31
41. 41Arbitrator Rogers disagreed with Mr. O’Toole’s (Mr. Keffer’s counsel in this proceeding) “complete code” argument in Borowski and Aviva Canada Inc. (FSCO A07-002593, September 12, 2008) stating at page 6 that:
42. 42Botsis v. Unifund Assurance Co. [1998] O.J. No. 2346
43. 43E. A. Driedger, Construction of Statutes (2nd ed. 1983), at page 87; applied in Stubart Investments Ltd. v. The Queen 1984 CanLII 20 (SCC), [1984] 1 S.C.R. 536, at page 578
44. 44Ruth Sullivan, Driedger on the Construction of Statutes (3d ed. 1994), at page 131
45. 45R.S.O. 1990, c. S.22
46. 461996 CanLII 11777 (ON CTGD), [1996] O.J. No. 1345
47. 47R.S.O. 1990, c. O.31
48. 48(FSCO P00-00020, August 1, 2000), Appeal
49. 49(FSCO A98-000234, March 24, 1999)
50. 50Mr. Keffer withdrew a claim against Wawanesa for “Special, General, Punitive and Aggravated Damages in the amount of $1,000,000.00” during his examination for discovery on June 21, 2005, according to the transcript prepared by Ieva A. Wightman, Cerified Court Reporter at page 6, lines 1 to 30 and page 7, lines 5 to 8.
51. 51Wawanesa submits that Mr. Keffer continued to work as a gas pipe fitter after the April 1, 1999 accident until August 24, 2001 (the date of the second accident, which was insured by Belair).
52. 52Paragraph 20 of the Statement of Claim refers to Wawanesa’s refusal to pay attendant care benefits for the period of April 1, 1999 to the present, and onward.
53. 53Andreeski and Pilot Insurance Company (OIC A96-000714, March 26, 1997)
54. 54At paragraphs 1(k) and 47 of the Statement of Claim, Mr. Keffer is claiming attendant care benefits from Belair from July 2003, (when benefits were cut off) to present and onward.
55. 55Further to Mr. Keffer’s Application for Mediation, which was submitted on December 14, 2006.
56. 56Letter dated January 26, 2004 from Ms. Julie Marshall, Wawanesa Mutual Insurance Company to Mr. Douglas Keffer.
57. 57Catastrophic Impairment DAC Assessment dated January 12, 2006, Kaplan and Kaplan Psychologists, Motion Record of Responding Party/Applicant, Tab 16
58. 58[1997] O.J. No. 1657 (Ontario Court of Justice)
59. 59In addition, presumably Mr. Keffer is claiming more than $3,000 per month for attendant care, which would exceed the maximum amount payable for non-catastrophic claims.
60. 60[1997] O.J. No. 1657 (Ontario Court of Justice)
61. 61[1997] O.J. No. 1657 (Ontario Court of Justice), at paragraph 59
62. 62Paragraphs 1(l) and 56 of Mr. Keffer’s Statement of Claim
63. 63Kovacs and Canadian General Insurance Group (FSCO A01-001450, May 4, 2004)
64. 64Transcript of examination for discovery of Douglas Keffer on June 21, 2005 by Ieva A. Wightman, Certified Court Reporter at page 6, lines 1-30, page 7, lines 5-8. At that time, Mr. Keffer’s counsel also withdrew his claim for housekeeping and home maintenance benefits against Wawanesa.
65. 65Responding Party’s Factum, paragraph 109(b), page 44, Motion Record of the Responding Party/Applicant.
66. 66Responding Party’s Factum, paragraph 109(d), page 44, Motion Record of the Responding Party/Applicant.
67. 67Responding Party’s Factum, paragraph 107, page 43, Motion Record of the Responding Party/Applicant.
68. 68Paragraph 3(d)(ii) of the Applicant’s Factum, Responding Party/Applicant’s Motion Record, volume 1.
69. 69Transcript of examination for discovery of Douglas Keffer on June 21, 2005, Ieva A. Wightman, Certified Court Reporter.
70. 70Baron v. Kingsway General Insurance Co. (2006), 2006 CanLII 8463 (ON SC), 80 O.R. (3d) 290 (S.C.J.)
71. 714th edition, 1993
72. 72R.R.O. 1990, Reg. 194
73. 73Miller and Allstate Insurance Company of Canada (FSCO P99-00026, June 12, 2000), Appeal
74. 74Kovacs and Canadian General Insurance Group (FSCO A01-001450, May 4, 2004)
75. 75Belair indicates that it has paid $30,000 in attendant care benefits for this period.
76. 76Correspondence dated June 2, 2006 from Belair to Applicant’s Counsel, Affidavit of Anna Maria Caraginese sworn April 14, 2008, Exhibit “G”, of the Moving Party/Respondent’s Supplementary Motion Record.
77. 77(FSCO A98-000234, March 24, 1999)
78. 78(OIC A96-000714, March 26, 1997) and (FSCO A07-000984, March 29, 2008), respectively
79. 79Wawanesa has indicated that it would oppose an attempt by Mr. Keffer to withdraw the claims against it in the court action.
80. 80(FSCO A01-001450, May 4, 2004) at page 8
81. 81Both Wawanesa and Belair dispute this finding.
82. 82Mr. Keffer is claiming attendant care benefits from Wawanesa up to two years after the accident in the civil action. He is also claiming (and has received) attendant care benefits from Belair in the civil action during the period he has claimed attendant care benefits from Wawanesa in the arbitration.
83. 83(FSCO P00-00020, August 1, 2000), Appeal
84. 84(FSCO A98-000234, March 24, 1999)
85. 85King and Royal Insurance Company of Canada (FSCO A98-000234, March 24, 1999) at page 5