Neutral Citation: 2010 ONFSCDRS 123 FSCO A08-002589

BETWEEN:

JULIA GORDYUKOVA Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY and CERTAS DIRECT INSURANCE COMPANY Insurers

DECISION ON A PRELIMINARY ISSUE

Before: Robert Bujold Heard: September 28, 2010, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on September 16 and 22, 2010.

Appearances: J.A. Michael Wolfe for Ms. Gordyukova Todd J. McCarthy for Certas Direct Insurance Company No one appeared for Dominion of Canada General Insurance Company

Issues:

The Applicant, Julia Gordyukova, was injured in a motor vehicle accident on November 9, 2001. She applied for and received certain statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ Disputes arose regarding the payment of certain other benefits. In September 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits.

Subsequently, a dispute arose as to whether Ms. Gordyukova had sustained a catastrophic impairment as a result of the accident. In December 2008, Ms. Gordyukova filed an Application for Arbitration to have the issue of catastrophic impairment determined by an arbitrator at the Commission.

In the interim, a priority dispute between Dominion and Certas Direct Insurance Company (“Certas”) worked its way through private arbitration and the courts. As a result of a private arbitration decision in May 2008, an appeal decision of the Ontario Superior Court of Justice in July 2009 and an application for leave to appeal to the Court of Appeal being denied in December 2009, Certas became the insurer responsible for payment of accident benefits.

Following the resolution of the priority dispute between Dominion and Certas, Ms. Gordyukova sought to add Certas as a party to the arbitration. Certas opposed being added as a party on the basis that the arbitration should be stayed. Certas maintained that the single issue in the arbitration, the issue of catastrophic impairment, should be determined in the court action. Dominion brought its own motion seeking to be removed or replaced as a party to the arbitration.

On July 9, 2010, I heard Ms. Gordyukova’s motion to add Certas as a party to the arbitration, as well as Certas’s motion to stay the arbitration and Dominion’s motion to be removed or replaced as a party.

In my decision dated July 30, 2010, I agreed with Certas that the spectre of inconsistent results on issues of causation and credibility precluded Ms. Gordyukova from proceeding independently with both her arbitration proceeding for a determination of catastrophic impairment and her court action for medical and rehabilitation benefits, attendant care benefits and income replacement benefits (“IRBs”). However, I did not stay the arbitration proceeding. For the reasons set out in my decision, Ms. Gordyukova was permitted to proceed to arbitration on condition that she gave notice within 14 days that she had sought leave to withdraw or discontinue her court action. On confirmation of same, Ms. Gordyukova could add the issues in the court action to the arbitration.

At that hearing, Certas gave notice that, if Ms. Gordyukova was permitted to add the issues in the court action to the arbitration, it would raise a limitation defence on the basis that the claims in the court action are statute-barred from proceeding to arbitration pursuant to section 281.1 of the Insurance Act and section 51 of the Schedule.²

As the limitation issue had not been canvassed in detail and the parties did not appear prepared to argue that issue, I added Certas as a party to the arbitration, but I reserved its right to raise a limitation defence in the event that Ms. Gordyukova chose to discontinue her claims before the court and add them to the arbitration. Dominion remained a party to the arbitration to respond to the special award claim.

By letter dated August 12, 2010, Ms. Gordyukova advised Certas and Dominion that she would be withdrawing her court action and pursuing her claims through arbitration.

As a result, Certas requested this further hearing for a determination on the limitation issue. Dominion advised that it would not be participating in the hearing on the limitation issue.

The preliminary issue is as follows:

Is Ms. Gordyukova precluded from proceeding to arbitration on her claims for income replacement benefits from June 17, 2005 and ongoing and attendant care benefits from November 9, 2001 to November 9, 2003 on the basis that those claims are statute-barred from proceeding to arbitration pursuant to section 281.1 of the Insurance Act and section 51 of the Schedule?

Result:

Ms. Gordyukova is not precluded from proceeding to arbitration on her claims for income replacement benefits from June 17, 2005 and ongoing and attendant care benefits from November 9, 2001 to November 9, 2003.
Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.

EVIDENCE AND ANALYSIS:

Claims in the two proceedings

The following summary outlines the salient timelines for the claims brought by Ms. Gordyukova in the arbitration and court proceedings.

With respect to the arbitration proceeding, Dominion advised Ms. Gordyukova of its determination that she had not sustained a catastrophic impairment as a result of the accident by Explanation of Benefits dated July 3, 2008. The issue proceeded to mediation on November 26, 2008 and an Application for Arbitration dated November 28, 2008 was filed at the Commission on December 1, 2008. At the time I heard the first preliminary issue hearing, on July 9, 2010, the arbitration of the catastrophic impairment issue was scheduled to proceed over four days commencing on September 27, 2010. It has since been adjourned on consent of the parties until November 15, 2010.

The court action is considerably older. A comprehensive court action was commenced by Statement of Claim dated September 16, 2002, after disputes over entitlement to an orthopaedic mattress for $1,644.50 and attendant care benefits of $1,669.69 per month for dog walking services failed at mediation conducted on August 21, 2002.

The Statement of Claim was broadly drafted with specific reference to not only medical and rehabilitation benefits, but also housekeeping and IRBs, although these were not, at the time, failed issues at mediation. The parties had, in fact, reached a procedural agreement regarding IRBs wherein Dominion agreed to pay IRBs at the rate of $200.00 per week until the quantum could be finalized.

Dominion ultimately determined the quantum of IRBs to be $400.00 per week which it paid, with interest, until IRBs were terminated effective June 17, 2005 on the basis that Ms. Gordyukova no longer met the test for entitlement. The issue of Ms. Gordyukova’s entitlement to IRBs failed at mediation conducted on February 16, 2007. The parties agreed that Ms. Gordyukova’s entitlement to IRBs was already covered by the existing court action and did not require a separate proceeding to be commenced following mediation.

Since the benefits that are the subject of the court action were sought on a non-catastrophic basis, the parties also agreed that the only issues from the court action which may be subject to a limitation defence are IRBs from June 17, 2005 and ongoing and attendant care for the period November 9, 2001 to November 9, 2003.³

Ms. Gordyukova also raised, for the first time at this hearing, that her claim for attendant care benefits was not statute-barred because Dominion had failed to arrange a DAC assessment and therefore her attendant care benefits were not properly terminated. The relevant facts are that Ms. Gordyukova’s claim for attendant care benefits was reduced by Explanation of Benefits Payable dated April 4, 2003.⁴ In response, Ms. Gordyukova requested an attendant care DAC assessment and provided Dominion with the necessary executed OCF-14.⁵ The request for a DAC assessment was repeated in correspondence dated February 10, 2004.⁶ For reasons that are unclear, it does not appear that Dominion arranged a DAC assessment with respect to Ms. Gordyukova’s attendant care benefits. Certas was unable to provide an explanation as to why Dominion did not arrange a DAC assessment.

Relevant legislation

As I noted in my decision of July 30, 2010, when a dispute regarding entitlement to or quantum of a benefit fails at mediation, an insured person may either commence a court action or apply for arbitration.⁷

Both the Insurance Act and the Schedule also require that the court proceeding or arbitration be commenced within two years of the insurer’s refusal to pay the benefit or amount claimed.

Section 281.1 of the Insurance Act provides as follows:

281.1(1) A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer's refusal to pay the benefit claimed.

Exception

(2) Despite subsection (1), a proceeding or arbitration under clause 281 (1) (a) or (b) may be commenced,

(a) if there is an evaluation under section 280.1, within 30 days after the person performing the evaluation reports to the parties under clause 280.1 (4) (b);

(b) if mediation fails but there is no evaluation under section 280.1, within 90 days after the mediator reports to the parties under subsection 280(8).

Section 51 of the Schedule provides as follows:

51(1) A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer's refusal to pay the amount claimed.

(2) Despite subsection (1), a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280 (8) of the Act or within 30 days after the person performing the evaluation provides a report to the parties under section 280.1 of the Act, whichever is later.

The Parties’ Positions

Certas

Certas submits that this preliminary issue is “all about defining the statutory jurisdiction of this tribunal to add claims to an existing arbitration that would otherwise be statute-barred.”

Specifically, Certas maintains that, while an arbitrator has jurisdiction to add an issue to an existing arbitration, the issue must first be the subject of an arbitration commenced within the requisite two year limitation period. It is beside the point that the issue was the subject of a court action commenced within two years of the insurer’s denial. I should ignore this fact. It pertains to a court proceeding that is outside my jurisdiction. Further, compliance with the limitation requirement for the purposes of one proceeding (the court action) does not qualify as meeting the limitation requirement for another proceeding (the arbitration). It is not “transferable.” For the purposes of examining the limitation issue in the arbitration context, I must look exclusively at whether an arbitration proceeding in respect of the disputed issue was commenced within two years of the insurer’s refusal to pay the benefit or amount claimed.

In this case, Certas maintains that, with respect to the IRB issue, Ms. Gordyukova would need to have commenced an arbitration proceeding within two years of its ultimate denial of IRBs, i.e. no later than June 17, 2007. As she did not do so, her claim for IRBs is statute-barred from proceeding to arbitration. With respect to the attendant care issue, it appears that Ms. Gordyukova’s attendant care benefits were reduced by Explanation of Benefits Payable dated April 4, 2003. Therefore, she had until April 4, 2005 to commence an arbitration proceeding and, not having done so, that claim is also statute-barred from proceeding to arbitration.

Certas emphasized that it is still available to Ms. Gordyukova to pursue her IRB and attendant care claims in the Superior Court where the requisite action was commenced within the required time periods. Further, Certas maintained that her claim for a determination of catastrophic impairment could be added to the court action without any limitation period defence being applicable. However, in the event it is wrong on that point and there is a limitation problem with adding the catastrophic impairment issue to the court action, Certas advised that it would consent to adding the issue.

Certas also submits that I should not consider whether Certas would be prejudiced by adding the claims to the existing arbitration proceeding. Prejudice is only relevant to the common law doctrine of “special circumstances” which is not available to me and would not, in any event, apply in this case. Nor should I consider whether it would be “unfair” to Ms. Gordyukova to find that her IRB and/or attendant care claims are statute-barred from proceeding to arbitration.

Certas submits that my jurisdiction is limited to the provisions of the Insurance Act and the Schedule, and the only extension of the two year limitation period is found in 281.1 (2) of the Insurance Act and subsection 51 (2) of the Schedule, both of which permit a court proceeding or arbitration to be commenced within 90 days after the mediator reports to the parties. However, those circumstances do not apply to this case.

With respect to the attendant care issue, Certas admits that there may have been a failure on the part of its predecessor, Dominion, to follow through with the requested DAC assessment. However, Certas emphasized that, even if I find that there has not been a proper denial of attendant care benefits, this in no way diminishes its limitation argument with respect to the IRB issue.

Ms. Gordyukova

Ms. Gordyukova starts with the proposition that, where there are separate arbitration and court proceedings, an insured person will, in the appropriate case, be permitted to proceed with both matters independently and concurrently of each other. This was the case in King and Royal Insurance Company of Canada⁸ which was referred to approvingly in the appeal decision in Non-Marine Underwriters (Mbrs. Of Lloyd’s) and Mangat.⁹ Separate court and arbitration proceedings were also permitted in CGU Insurance Company of Canada and Bolger.¹⁰

As a result, Ms. Gordyukova maintains that there was nothing improper with her decision to pursue the determination for catastrophic impairment at the Commission while pursuing her other substantive claims through the earlier court action, and there was no particular reason why she should have anticipated that the arbitration and court action would not be permitted to proceed separately. Ms. Gordyukova also points out that, while the Application for Arbitration on the catastrophic impairment issue was filed on November 28, 2008, no objection was raised to proceeding with both the arbitration and court action until February 2010, after Certas’s efforts to resist being made the priority insurer had been exhausted and Ms. Gordyukova sought to have Certas added as party to the arbitration. Dominion had not previously raised an objection.

Further, there is no dispute that both proceedings were commenced well within the time requirements of the Insurance Act and the Schedule. The claims in the court action were pursued by Statement of Claim within one year of the accident, and the arbitration proceeding for a determination of catastrophic impairment was brought within four months of Dominion’s decision that Ms. Gordyukova was not catastrophically impaired.

Ms. Gordyukova also notes that had Certas not brought its motion to stay the arbitration proceeding, and had I not agreed with Certas that the claims in the court and arbitration proceedings should be heard by the same trier of fact in one forum, there would be no limitation issue. It is only as a result of Certas’s motion, and my procedural finding that all claims should proceed in one forum for the sake of consistent results, that the limitation period issue even exists.

With respect to Certas’s contention that there is no limitation problem preventing the catastrophic determination issue from being added to the court action, Ms. Gordyukova notes that Dominion denied that Ms. Gordyukova was catastrophically impaired on July 3, 2008. The mediation on that issue took place on November 26, 2008, so the latest date to commence a proceeding with respect to that issue was July 3, 2010. As a result, Ms. Gordyukova contends that, if Certas’s position is accepted, not only would a limitation period have been “manufactured” as a result of Certas’s motion to stay the arbitration, but Ms. Gordyukova would now be in the untenable position of having to choose between the catastrophic impairment issue being statute-barred if brought into the court action or the IRB issue being statute-barred if brought into the arbitration.

Ms. Gordyukova submits that it is impossible to reconcile how Certas can create a limitation issue on a procedural motion where none would have existed had Certas not objected to the arbitration and court action proceeding separately or had I allowed the matters to proceed separately, two events beyond Ms. Gordyukova’s control.

Ms. Gordyukova submits that it was the “incoherency of this argument” that Arbitrator Sampliner recognized in Murphy and Certas Direct Insurance Company¹¹ where the same limitation argument was raised. Although the arbitrator found the motion to be premature, he noted as follows:

The denial of Mrs. Murphy’s motion does not mean I am inclined to accept Certas’ position on its time-limits defence. Mrs. Murphy apparently filed her Court lawsuit in 2004, thereby putting Certas on notice she contested the denial of her claims for accident benefits. I do not understand the rationale why immediate transfer of her claims from Court to this action somehow negates her 2004 notice of legal action, and remain seized of this preliminary issue. [emphasis added]

In this case, Dominion was notified by court action, brought well within the limitation period, that Ms. Gordyukova contested its refusal to pay IRBs and attendant care benefits. Ms. Gordyukova notes that adding these same claims to the arbitration proceeding does not negate the fact that Dominion had the requisite notice brought within the requisite time period, nor does it result in the creation of any new claims. To the extent that limitation periods seek to avoid surprise or prejudice, there is none here.

Finally, on the interpretation of the limitation provisions, Ms. Gordyukova notes that section 281.1 of the Insurance Act and section 51 of the Schedule require that the insured person commence “a court proceeding or arbitration” within two years of the insurer’s refusal to pay the benefit or amount claimed. Strictly speaking, as Ms. Gordyukova did commence a court action within two years of the dispute over IRBs and attendant care benefits, the requirements of section 281.1 and section 51 have been met. There is no reference in those provisions to the impact, if any, of consolidating claims at a separate juncture. The provisions simply state that one type of proceeding or the other must be brought within two years of the insurer’s refusal, which is precisely what Ms. Gordyukova did in this case.

With respect to the argument that no limitation defence can apply to the attendant care issue because Dominion failed to provide a DAC assessment, Ms. Gordyukova relies on Sekhon and RBC General Insurance Company.¹² In Sekhon, the arbitrator found that there had been no valid termination of IRBs, as the insurer had failed to arrange a DAC. As a result, Ms. Sekhon was not precluded from proceeding to arbitration on her claim for IRBs.

Ms. Gordyukova maintains that I should arrive at the same conclusion here with respect to her claim for attendant care benefits. Dominion failed to arrange an attendant care DAC, although she had complied with her obligations in requesting a DAC. As a result, there has been no valid termination of her attendant care benefits and therefore no limitation period has begun to run.

Analysis and Conclusion

I will address first Ms. Gordyukova’s submission that the attendant care benefits were not properly terminated, and therefore no limitation period has started to run with respect to her claims for attendant care benefits between November 9, 2001 to November 9, 2003.

As noted in Sekhon, “It is well established that, for an insurer to take advantage of the 2-year limitation period set out in section 281.1 of the Insurance Act and section 51(1) of the Schedule, there must be a valid termination of the disputed benefits.” In that case, Ms. Sekhon was found to have properly requested a DAC assessment after receiving a Notice of Stoppage of her IRBs. However, the insurer failed to arrange a DAC assessment. In the result, the arbitrator concluded “because RBC did not arrange a DAC, although Ms. Sekhon complied with all of her obligations in requesting a DAC, there was no valid termination of her IRBs. Ms. Sekhon is therefore not precluded from proceeding to arbitration of her claim for IRBs.”

I am unable to see how Sekhon is distinguishable from the case at hand.

Subsection 39 (4) of the Schedule, as it read when Ms. Gordyukova’s attendant care benefits were reduced, provided that “if an insurer determines that an insured person is not entitled or is no longer entitled to receive an attendant care benefit, the insurer shall require the person to be assessed in accordance with section 43 [the DAC assessment provision] and shall give the person notice of its determination and the requirement for the assessment, with reasons...” I also note that subsection 39 (6) provides that “if an assessment is required under subsection (4), the insurer shall pay the insured person the attendant care benefit pending receipt of the report of the designated assessment centre.”

In its letter to Ms. Gordyukova dated April 4, 2003, Dominion informed Ms. Gordyukova of her right to a DAC assessment as follows:

Should you wish to dispute the amount of the attendant care benefit, you can request an attendant care assessment at a Designated Assessment Centre. We are enclosing the Permission to Disclose Health Information to the Designated Assessment Centre (OCF14). This must be returned to us in 14 days, April 25, 2003.

Certas does not dispute that Ms. Gordyukova returned the executed OCF-14 to Dominion within the required timeframe. There is also no dispute that Ms. Gordyukova followed up with her request for a DAC assessment by correspondence from her counsel dated February 10, 2004.

In the absence of any evidence that Dominion arranged an attendant care DAC assessment, as properly requested by Ms. Gordyukova, I find that Dominion failed to properly terminate Ms. Gordyukova’s attendant care benefits. As a result, Ms. Gordyukova is not precluded from proceeding to arbitration on her claim for attendant care benefits between November 9, 2001 to November 9, 2003.

Even if I am wrong on this issue, I also find that neither section 281.1 of the Insurance Act nor section 51 of the Schedule preclude Ms. Gordyukova from proceeding to arbitration on her claims for IRBs and attendant care benefits. I find that, in respect of a disputed benefit, the limitation provisions are fully satisfied when an insured person commences an arbitration or court proceeding within two years of an insurer’s refusal to pay the benefit or amount claimed. A limitation issue does not arise if the claim is subsequently added to another proceeding more than two years after the insurer’s refusal. For the reasons that follow, I conclude that this is the only reasonable and just meaning to be given section 281.1 of the Insurance Act and section 51 of the Schedule.

I agree with Certas that an arbitrator does not have jurisdiction to disregard the requirements of the Schedule or interpret its language in a manner that is inconsistent with its plain and ordinary meaning simply on the basis that a result may seem unfair to a particular applicant. At the same time, as noted in Bapoo v. Co-operators General Ins. Co.,¹³ “avoiding unjust or unacceptable results is an essential part of the court's [or an arbitrator’s] task in interpreting statutory language.” As also noted, “The modern approach to statutory interpretation calls on courts to interpret a legislative provision in its total context. The court's interpretation should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning.”

With respect to the total context within which the limitation provisions must be interpreted, both parties acknowledge that subsection 281(1) of the Insurance Act provides an insured person with the right to choose between arbitration and a court proceeding to pursue a claim for benefits. Where separate disputes arise at separate times, there is nothing necessarily improper with pursuing separate claims through arbitration and the courts. While recognizing that multiple proceedings should be avoided, and an insured person’s right to choose court or arbitration does not convey an unfettered right to split claims between forums, the Director’s Delegate in Bolger also noted that “this does not create a fixed rule in the opposite direction. The insured person’s initial decision to go to court or arbitration does not necessarily determine the forum for all future claims. What is required is a “pragmatic balancing of interests.””

Certas maintains that a pragmatic balancing of interests may mean that an insured person will be required to maintain all claims in one forum or the other. I agree. This was the result in the appeal decision in Mangat. However, the same Director’s Delegate in that case upheld the decision in Bolger where separate claims were permitted to proceed in different forums. In short, while there are guiding principles to consider and interests to balance, each case must be decided on its own merits.¹⁴

In this case, the balancing of interests led me to conclude in my earlier decision that Ms. Gordyukova’s claim for a determination of catastrophic impairment should not proceed independently from the claims in the court action. I found that the claims should be heard by one trier of fact in one forum and, for the reasons outlined, I permitted Ms. Gordyukova to add the claims in her court action to the arbitration.

Notwithstanding Certas’s assertion to the contrary, I find that it has been more than two years since Dominion advised Ms. Gordyukova of its refusal to accept that she had sustained a catastrophic impairment as a result of the accident. Dominion gave clear and unequivocal notice of its position to Ms. Gordyukova on July 3, 2008. As a result, if Certas’s interpretation is accepted, Ms. Gordyukova would be prevented from adding claims from either forum to the other. In short, after successfully arguing that Ms. Gordyukova should not be permitted to pursue her claims in separate proceedings, Certas would now have me interpret the limitation provisions in such a manner as to preclude Ms. Gordyukova from pursuing her claims in one proceeding.

Even if Certas consents to the catastrophic issue being added to the court action in this case, its interpretation of the law, if accepted, would place insured persons in an impossible position in other cases. As well, Certas’s consent does not sidestep the fact that its interpretation creates a limitation issue, that did not otherwise exist, simply because it was determined on a procedural motion that claims commenced in different forums should not proceed separately to avoid the spectre of inconsistent results.

In my view, Certas’s interpretation must be rejected. It is an interpretation that does not further the purposes of the limitation provisions and produces a result that is unreasonable and unjust.

The purpose of limitation periods has been explained as a “systemic need for finality, certainty and the principle of diligence.”¹⁵ Through the commencement of her court action, Dominion received clear and timely notice of Ms. Gordyukova’s intention to pursue her claims for IRBs and attendant care benefits. Permitting Ms. Gordyukova to add these same claims to the arbitration proceeding does not change that fact.

I find that interpreting section 281.1 of the Insurance Act and section 51 of the Schedule so that commencing an arbitration or court action within two years of an insurer’s refusal to pay the benefit or amount claimed fully satisfies the limitation requirement for that claim, even if it is subsequently added to a later proceeding, is not only compatible with the legislative text and the purpose of the limitation period, it also produces the most reasonable and just result.

I do not suggest by my interpretation of the limitation provisions that I have the jurisdiction to “transfer” claims from a court action to an arbitration proceeding or the jurisdiction to “consolidate” arbitration and court proceedings. My interpretation simply recognizes that, once having met the limitation requirement by commencing an arbitration or court proceeding within two years of the insurer’s refusal to pay, a claim will not be statute-barred from subsequently being added to a proceeding in the other forum.

While I do not find the wording of section 281.1 of the Insurance Act and section 51 of the Schedule to be ambiguous, I also note that, if the wording were ambiguous, the case law is clear that as between two possible interpretations, the ambiguous language must be given the interpretation more favourable to the insured.¹⁶

As I have found that no limitation period has been missed, I do not need to consider whether I have authority to use the common law doctrine of “special circumstances” to extend the limitation period.

In conclusion, and for the reasons stated above, Ms. Gordyukova is not precluded from proceeding to arbitration on her claims for income replacement benefits from June 17, 2005 and ongoing and attendant care benefits from November 9, 2001 to November 9, 2003.

On a final note, I understand the parties have agreed that, if Ms. Gordyukova were permitted to proceed with all of her claims in the arbitration, the hearing of those claims would nevertheless be bifurcated. The only issue to be adjudicated at the hearing scheduled for November 15, 16, 17 and 18, 2010 is whether Ms. Gordyukova sustained a catastrophic impairment as a result of the accident. Depending on the result of that hearing, and subject to the discretion of the hearing arbitrator, the remaining issues would be heard by the same arbitrator at a later date.

EXPENSES:

Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.

October 22, 2010

Robert Bujold Arbitrator

ARBITRATION ORDER

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

Ms. Gordyukova is not precluded from proceeding to arbitration on her claims for income replacement benefits from June 17, 2005 and ongoing and attendant care benefits from November 9, 2001 to November 9, 2003.
Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.