Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2010 ONFSCDRS 126

Appeal P09-00042

OFFICE OF THE DIRECTOR OF ARBITRATIONS

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Appellant

and

SUBASHINI YOGESVARAN

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. Robert S. Franklin, for the Appellant, State Farm Mutual Automobile Insurance Company

Mr. Alexander M. Voudouris for the Respondent, Ms. Subashini Yogesvaran

HEARING DATE:

September 13, 2010

APPEAL ORDER

Under subsection 283(6) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The November 26, 2009 arbitration decision is varied by adding the following paragraph to the Arbitrator’s order:

The above orders are interim. This matter shall proceed to an arbitration hearing to determine the Respondent’s final entitlement to this award.

October 28, 2010

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND

As a result of her injuries sustained in a May 13, 2007 motor vehicle accident, the Respondent, Ms. Subashini Yogesvaran, applied to the Appellant, State Farm Mutual Automobile Insurance Company, for first-party automobile accident benefits payable under the Schedule.¹

The Respondent included in her benefits application a May 18, 2007 disability certificate from Dr. C. Hefford that anticipated nine to twelve weeks of employment and housekeeping disability. On August 14, 2007, some twelve weeks after the date of the first disability certificate, the Appellant requested, pursuant to clause 37(1)(a) of the Schedule, a new disability certificate. Dr. Hefford’s second disability certificate, dated August 30, 2007, anticipated a further nine to twelve weeks of disability.

On November 21, 2007, the Appellant sent the Respondent an OCF-25 Notice of Examination for a December 5, 2007 in-home occupational therapy assessment. An OCF-25 Notice of Examination followed on November 29, 2007 for a December 13, 2007 physiatrist assessment.

Following receipt of a December 10, 2007 in-home assessment report, on December 21, 2007 the Appellant sent the Respondent an OCF-9 denying housekeeping benefits after January 2, 2008. On January 9, 2008, based on a January 2, 2008 physiatrist medical report, the Appellant sent the Respondent an OCF-9 terminating income replacement benefits (“IRBs”) on January 16, 2008.

Compulsory mediation having failed to resolve the entitlement issues in dispute, the Respondent applied for arbitration at the Financial Services Commission of Ontario (the “Commission”). The matter came before Arbitrator Miller (the “Arbitrator”) by way of written submissions for a determination of whether the Appellant had failed to comply with section 37 of the Schedule when terminating benefits and, if so, what were the consequences.

The Arbitrator’s November 26, 2009 decision held that section 37 of the Schedule set out clear and unambiguous rules for an insurer’s refusal and stoppage of benefits. Compliance with these rules was essential for there to be a valid termination of benefits.

The Arbitrator determined that clause 37(1)(a) is a mandatory requirement, that an insurer must request that the insured person submit a new disability certificate as a prerequisite to a section 42 insurer medical examination (“IME”). If an insurer waited until a disability certificate was at, or was approaching the end of its currency, it could not request a section 42 IME without first obtaining a new, up to date, disability certificate.

The Arbitrator found that the Appellant, by waiting to conduct two section 42 IMEs until after the duration of disability anticipated by Dr. Hefford’s second certificate, had failed to properly terminate the Respondent’s benefits. The Schedule, the Arbitrator held, did not set out this direct consequence as it was self-evident. If an insurer did not comply with the rules for terminating benefits, it was obvious that the benefits had not been terminated and were, therefore, still owing. The fair and logical consequence of such improper termination was that the benefits remained owing until the Appellant complied with section 37. Had the Legislature intended a different consequence beyond the obvious, it would have said so.

The Arbitrator held that this result was consistent with the Supreme Court of Canada’s reasoning in Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R 129, that the consumer protection aspect of insurance law “obliges the courts to impose bright-line boundaries between the permissible and the impermissible without undue solicitude for particular circumstances that might operate against claimants in certain cases.” To find otherwise rendered non-compliance with subsection 37(1) without any consequences and, hence, made the provision meaningless.

In accordance with the modern approach to statutory interpretation of promoting the legislative purpose, confirmed in Bapoo v. Co-operators General Insurance Co., 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616 (Ont.C.A.), the Arbitrator ordered the Appellant to pay the Respondent ongoing IRBs from January 17, 2008, and housekeeping benefits from January 3, 2008, until the benefits were terminated in accordance with section 37, together with applicable interest.

The Appellant states that it subsequently paid the Appellant $34,814 in IRBs, with $8,997.05 in interest, and $7,057.18 in housekeeping benefits, with interest of $2,533.12.

II. NATURE OF THE APPEAL AND THE APPELLANT’S SUBMISSIONS

The December 22, 2009 Notice of Appeal asks that the Arbitrator’s November 26, 2009 decision be set aside and the further orders be granted:

That the Appellant complied with section 37 of the Schedule when terminating the Respondent’s benefits;
In the alternative, that any failure to comply with section 37 of the Schedule did not entitle the Respondent to payment of ongoing benefits, or, in the circumstances, any other sanction;
That the Appellant’s refusal to pay the benefits in dispute be decided on the merits of the claim; and,
That the Appellant receive its legal expenses both at arbitration and on appeal.

The Appellant submits that the Arbitrator erred in the following findings:

That the Appellant failed to comply with subsection 37(1) of the Schedule;
That any failure to comply with subsection 37(1) constituted an improper termination and/or entitled the Respondent to ongoing benefits, or any sanction in the circumstances;
That there was any prejudice to the Respondent by reason of any failure by the Appellant to comply with subsection 37(1); and,
That a new disability certificate must be received by an insurer before it is permitted to schedule a section 42 IME.

The Appellant argues that its section 42 IMEs were set up within the nine to twelve week disability period prognosticated in Dr. Hefford’s August 30, 2007 disability certificate. There was, it is submitted, a temporal relationship between that certificate and the arranged December 2007 IMEs. Further, there was no conceivable prejudice to the Respondent in the Appellant not requesting a further disability certificate, the Respondent failing to raise this concern until June 2009, although represented by counsel throughout. Rather, the Arbitrator’s decision was unfair, onerous and prejudicial to the Appellant.

The Appellant submits that the clause 37(1) requirement that an insurer request a new disability certificate cannot be a mandatory pre-condition for the proper termination of benefits as subsection 37(2) does not enumerate a disability certificate as a ground upon which an insurer may terminate benefits. Nor does section 42 set out a disability certificate as prerequisite to an insurer requesting an IME. If a disability certificate concludes that an insured person is no longer disabled, section 42 IMEs must still be arranged. Regardless of whether a disability certificate concludes that the insured person is still disabled, IMEs may still be arranged.

The Appellant further submits that a disability certificate is not a compelling document as it does not provide an in-depth assessment. Dr. Hefford’s August 30, 2007 disability certificate itself provides little information as to relevant pre-accident activities. Rather, boxes indicating substantial inability are simply checked off without indicating how that conclusion was reached. Further, any relevant information the treating doctor may have can be obtained through the IME doctor’s history taking and examination, and by the insured person’s obligation under subsection 42(10) of the Schedule to supply all relevant information in a timely fashion.

The Appellant cites Khan and Allstate Insurance Company of Canada, (FSCO A98-001157, May 20, 1999), Tenkorang and Wawanesa Mutual Insurance Company, (FSCO A01-001278, March 6, 2003), Jelisic and Guarantee Company of North America, (FSCO A98-000029, April 8, 1999), and Aviva Canada Inc. and Tarantino, (FSCO P06-00026, December 12, 2007) as cases where adjudicators declined to place much weight on disability certificates.

The Appellant argues that the Schedule does not set out the consequence for non-compliance with clause 37(1)(a). Having received a section 42 IME report, the Appellant met the clause 37(2)(b) condition that allowed benefits to be discontinued. The Appellant further submits that Smith does not stand for the proposition that failure to perfectly comply with process automatically bestows entitlement. Rather, Smith held that the consequence of an improper refusal of benefits in that case was that the limitation period had not begun to run. The merits of the claim were left to a trial judge’s assessment.

The Appellant argues that the reasoning in Kong and Personal Insurance Company of Canada, (FSCO A04-001188, July 21, 2005 and February 27, 2006) that an insured person should be awarded accident benefits on the basis of an insurer’s failure to comply with procedural requirements under the Schedule, has been rejected in other case law.

It is submitted that Arbitrator Feldman, in Seyed and Federation Insurance Company of Canada, (FSCO A07-002110, June 8, 2009), viewed such a result as a windfall. In Galati and Aviva Canada Inc., (FSCO A04-001256, August 19, 2005), the same arbitrator held that adjudicators must interpret the relevant legislation, not write in new provisions. Gray v. Pilot Insurance Company, 2006 CanLII 22118 (ON S.C.) rejected the argument that a catastrophic designation flowed automatically from an insurer’s non-compliance with the Schedule’s timelines.

The Appellant further cites Henry and Allstate Insurance Company of Canada, (OIC P96-00064, July 23, 1997), where Delegate Draper held that a section 64 obligation to pay did not create an entitlement that was immune from later challenge. In Poulos and Zurich Insurance Company, (FSCO A00-000193, June 6, 2001), Arbitrator Alves stated that:

… to date, arbitrators have considered breaches raised before them to be procedural, and awarded benefits after hearing all the evidence. An evidentiary approach has been taken, not a jurisdictional one. All the cases were decisions made after a full hearing with complex treatment and causation issues.

Most strongly, the Appellant relies on the recent Ontario Court of Appeal decision in Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, discussed below. Nonetheless, the Appellant argued that it was not saying that all breaches of the Schedule by an insurer can be ignored. Rather a breach may be so egregious so as to countenance continued entitlement to a benefit, as in Pintucci and Jevco Insurance Company, (FSCO A97-000755, January 7, 1999), without entitlement being determined on the merits. This, it is submitted, is not such a case.

III. THE RESPONDENT’S SUBMISSIONS

The Respondent submits that a disability certificate is the gatekeeper to an insurer determining an insured’s continuing entitlement to specified benefits: “[i]t is the door that must be walked through to reach the remainder of Section 37.”

Section 37, it is argued, must be interpreted within the context of consumer protection enunciated in Smith, the insurer’s duty of uberrima fides (utmost good faith), the purposive statutory interpretation approach taken in Bapoo and the finding in Brazier and RBC General Insurance Company, (FSCO A07-001290, May 28, 2009) that section 37 is a procedural protection for the benefit of insured persons.

The Respondent further submits that the clause 37(1)(a) requirement of a new disability certificate provides an insurer with “the cheapest, quickest and possibly most compelling medical information available” that may spare the necessity of a section 42 IME. If an IME is still required, the latter will have available a timely, informed report from a treating medical practitioner. To find that an IME can occur months or years after delivery of the disability certificate would render clause 37(1)(a) meaningless.

The Respondent argues that for every right, there is a remedy. While not explicit, the remedy for an insurer’s breach of clause 37(1)(a) is clear and logical, that without a new and timely disability certificate an insurer cannot conduct a section 42 IME and without a section 42 IME an insurer cannot use clause 37(2)(b) of the Schedule as a ground upon which to terminate benefits.

This is not a “bestowing of entitlement” but rather finding that termination not in accordance with the Schedule is no termination at all. Any fruit, it is argued, that falls from the Appellant’s tree of clause 37(1)(a) non-compliance cannot be relied upon to terminate benefits, as the produce of such termination is as tainted as the tree itself.

The Respondent distinguishes the decisions relied upon by the Appellant as pertaining to different circumstances (lifetime entitlement to a catastrophic impairment in Gray or an insured person’s abuse of the process and a technical deficiency in Seyed), being wrongly decided (Galati) and/or predating Smith.

The Respondent relies on Pintucci, where the insured person was awarded ongoing benefits in the face of the insurer’s non-compliance with the predecessor Schedule, notwithstanding that the insured had not established that his ongoing treatment was accident related. Pintucci, it is submitted, found it important that the integrity of the Schedule be protected, and, citing Morton v. Rabito, 1998 CanLII 5865 (ON CA), [1998] O.J. No. 5129, December 10, 1998, that insurers not flout the legislation and “substitute in their stead adjustment procedures that they find more convenient or suitable to their purpose.”

The Respondent further relies on Kong, noted above, as well citing Sellathamby and Allstate Insurance Company of Canada, (FSCO A01-000313, March 21, 2002), noted below.

In arbitration submissions, the Respondent had submitted that she was not currently challenging the proposition in Henry that benefits paid pursuant to a statutory “obligation to pay, however, does not create an entitlement that is immune from later challenge.” The Respondent had further submitted that, unlike Gray:

… the insurer’s non-compliance can be cured immediately and if accident benefits are thus terminated, the applicant may be subject to a request for reimbursement by the insurer, all of which would have to be dealt with in a subsequent hearing, perhaps at the final arbitration hearing in this matter.

IV. ANALYSIS

This appeal is from a preliminary arbitration order. Rule 50.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003) that applied when this appeal was received, provided that a party may not appeal an arbitrator’s preliminary or interim order until all of the issues in dispute in the arbitration have been finally decided, unless ordered otherwise. Rule 51.2(c) provided that such an appeal may be rejected. Given:

the Appellant’s submission that the November 26, 2009 decision was in essence a final order regarding entitlement to housekeeping and IRBs and that there were no further arbitral proceedings regarding these issues;
consistent with the criteria in Allstate Insurance Company of Canada and Torok, (FSCO P01-00021, May 29, 2001), this appeal raised an important issue and the Arbitrator’s decision indicated that this was a novel issue; and,
the absence of any express objection by the Respondent to having this appeal addressed at the present time;

I indicated in my January 19, 2010 letter decision that I was persuaded to exercise my discretion under Rules 50.2 and 51.2(c) of the Code to accept this appeal from a preliminary decision to achieve the quickest, most just and cost-effective resolution of this proceeding.

The substance of this appeal pertains to subsection 37(1) of the Schedule. This provision provides that:

(1) If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer,

(a) shall request that the insured person submit within 15 business days a new disability certificate completed as of a date on or after the date of the request; and

(b) may notify the insured person that the insurer requires the insured person to be examined under section 42.

Subsection 37(2) of the Schedule provides that:

(2) An insurer shall not discontinue paying a specified benefit to an insured person unless,

(a) the insured person fails or refuses to submit a completed disability certificate as required under clause (1) (a);

(b) the insurer has received the report of the examination under section 42, if the insurer required the insured person to be examined under that section;

(d) the insured person has resumed his or her pre-accident employment duties;

(e) the insurer is no longer required to pay the specified benefit by reason of clause 5 (2) (d) or (e), subsection 22 (3) or 33 (2) or section 55 or 56; or

(f) the insured person is not entitled to the specified benefit for a reason unrelated to whether he or she has an impairment that entitles the insured person to receive the specified benefit.

An insurer’s ongoing adjusting of a file must comply with the Schedule. The principles of consumer protection and utmost good faith reinforce this precept.

Subsection 37(1) of the Schedule pertains to an insurer determining if an insured person is “still” entitled to a specified benefit, that is, that the insurer has already accepted or an adjudicator has already found the insured person entitled to a specified benefit.

The Divisional Court, in Kirkham v. State Farm Mutual Automobile Insurance Co. et al., [1998] O.J. No. 6459, held that “[t]he first principle of statutory interpretation is; ‘if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense’ (Chief Justice Tindal in the Sussex Peerage Case 1844 11 cl and F. 85).”

Subsection 37(1) is not ambiguous as to what is required of an insurer. For an insurer to determine continuing entitlement to a specified benefit, two courses of action are available. One is strictly mandatory. An insurer “shall” request that the insured person submit a “new” disability certificate. “New” means completed as of a date on or after the date of the request. An insurer’s second available course of action is that contemporaneous (as indicated by the use of the word “and,” not “or”) with the mandatory requirement of requesting a new disability certificate, the insurer has discretion to also notify the insured person that it requires the latter to be examined under section 42.

The Appellant’s IME requests were made November 21 and 29, 2007 for IMEs the following month. The currency of Dr. Hefford’s most recent disability certificate, dated August 30, 2007, expired at the latest on November 22, 2007, the day after the first of the two IME requests. For the Appellant to determine on November 21, 2007 whether the Respondent was “still entitled” to weekly benefits, it was obligatory that the Appellant request a new disability certificate, not rely on one that was out of date. The Appellant failed to do so.

Accordingly, I am not persuaded that the Arbitrator erred in law in finding that the Appellant did not comply with subsection 37(1) of the Schedule.

What then, is a potential penalty for non-compliance with clause 37(1)(a), if anything?

I do not agree that disability certificates are of minor consequence, the provisions pertaining to which can be ignored. Rather, the legislative importance of a disability certificate is confirmed in that an insurer may discontinue payment of benefits simply based on an insured’s failure to submit same. Further, I find that the request for, and the contents of, a disability certificate are considerations as to whether an IME is “reasonably necessary” under section 42 of the Schedule.

I am not persuaded that one may ignore, as an example, any clear, mandatory wording of section 42 by simply cherry picking through cases such as Worthman and AXA Insurance (Canada), (FSCO A96-000486, October 7, 1998) and Sir and Wawanesa Mutual Insurance Company, (FSCO A98-001119, November 23, 1999), to name but two, where adjudicators have critiqued specific IME reports. Likewise, I am not persuaded that a similar process is useful so as to ignore clear, mandatory wording of clause 37(1)(a).

While clearly setting out that requesting a new disability certificate is mandatory, section 37 does not set out the specific consequences of non-compliance. The Ontario Court of Appeal in Bapoo states that “[a]voiding unjust or unacceptable results is an essential part of the court’s task in interpreting statutory language.” That an insured’s failure to provide a requested disability certificate would result, by itself, in termination of benefits, while an insurer turning a blind eye to this provision would have no consequence, would seem unjust and unacceptable and, as stated by the Arbitrator, render clause 37(1)(a) meaningless.

The Appellant’s own written submissions quote extensively from Bapoo, including that an appropriate interpretation of legislation is one that can be justified by (1) plausibility, that is compliance with the legislative text, (2) efficacy, that is its promotion of the legislative purpose and (3) its acceptability, that is the outcome is reasonable and just. The Appellant further argues that one of the legislative purposes identified in Bapoo is “ensuring that benefits will be delivered quickly and efficiently by means of a system that is administratively manageable.”

Stranges arose out of a May 18, 1996 motor vehicle accident. The trial judge found that the insurer was required to pay ongoing benefits until the insured was provided a proper notice of termination and a proper Designated Assessment Centre (“DAC”) assessment. The relevant subsection 64(13) of the predecessor Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, provided that:

…, and, if it is finally determined that the benefits should not have been stopped, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

The Court of Appeal took from Smith that:

The inadequate notice did not automatically entitle the insured to payment of benefits. She was still required, as the court acknowledged, to prove her claim.

The Court of Appeal, therefore, held that:

That same reasoning applies to the facts of this case. The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given or a proper DAC assessment was carried out. The respondent was still required to prove that she was entitled to the continued payment of IRBs because of her continued substantial inability to perform the essential tasks of her employment. Moreover in this case no question of an expired limitation period arises.

The Respondent submits that Stranges is distinguishable as it pertains to a different provision in a different Schedule, in any event, it is wrongly decided and, at its highest, stands for the proposition that while entitlement must be established, in the interim, the benefits are payable.

In Stranges, notwithstanding the far more explicit statutory consequences where benefits should not have been stopped, the Court of Appeal held that the insured person was still required to prove her entitlement. In the version of the Schedule before me, the parties agree that there is no explicit consequence that in the event of procedural non-compliance the insurer must resume payment of benefits and pay the benefits that were not paid.

I am advised that leave to appeal to the Supreme Court of Canada is being sought in Stranges. Nonetheless, given the Court of Appeal’s decision in a far more compelling situation, I find that I am bound by that case. Hence, following the Court of Appeal in Stranges, I find that the Respondent is still required to prove her entitlement to the benefits in dispute according to the legislated criteria of eligibility and respectfully, that the Arbitrator, without the benefit of that decision, erred in this regard.

I note, however, the Supreme Court of Canada’s decision in Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, [2008] 2 S.C.R. 195, although addressing the Real Estate Brokerage Act, R.S.Q., c. C-73.1 (“REBA”), held that the purpose of that legislation was also to protect consumers. The Court held that “[i]t would contradict the consumer protection goals at the heart of REBA if the consistent use of the words ‘must’, ‘shall’ and ‘mandatory’ ... could be amended cavalierly by private agreement.”

I do not agree that prejudice is absent where an insurer fails, non-egregiously it is argued, to comply with clause 37(1)(a) of the Schedule. Firstly, the consumer protection goals at the heart of the Schedule, as enunciated by the Supreme Court of Canada in Smith, would be contradicted if the use of the word “shall” in clause 37(1)(a) could be amended, cavalierly or otherwise, unilaterally by one party.

Further, as stated by Arbitrator Bayefsky in Sellathamby:

In [Mendez and AXA Insurance (Canada) (FSCO A96-001355, January 25, 2000)] the arbitrator discussed his decision in [Singh and Gore Mutual Insurance Company (FSCO A95-000257, July 3, 1998)] and stated that “it would be inappropriate to give an insurer, who terminated benefits improperly, an advantage over those who complied with the Schedule , and continued to pay the benefit,” that the “goal was to attempt to put the parties back into the position they would have been in had the insurer acted properly,” and that “insurers acting improperly would not gain an advantage by their misconduct by putting the insured to the proof of entitlement to a benefit the insurer had no right to stop paying, but at the same time the insured person would not receive a benefit that would in the normal circumstances be subject to recapture because of his misconduct.”

In addition, a fundamental component of this first party automobile insurance scheme is an expeditious dispute resolution system. As an example, subsection 280(3) of the Insurance Act provides with regard to the compulsory mediation step of getting to a final hearing, that the Director “shall ensure that a mediator is appointed promptly.” Time Line 3 of the Code states that a completed application for mediation will be registered and assigned to a mediator within three weeks of receipt.

There is the present unfortunate reality of prejudice to an insured person endeavouring to dispute the termination of his or her benefits, not in conformity with the Schedule in cases such as this, yet subject to the systemic delays of an overwhelmed dispute resolution system. I take judicial notice that over the last four years, yearly applications for mediation have increased from some 14,000 to 26,000, causing pending mediations to concurrently increase from 4,500 to close to 20,000. Although applications for mediation deemed by the Commission to be complete when filed have fallen over the last year from 79% to 1%, overall, it is now closer to eight months after the filing of a mediation application to accomplish just the first step of the dispute resolution process of having a mediator assigned to a file.

The Divisional Court, in State Farm Mutual Automobile and Ramalingam, 2009 CanLII 44115, found that section 42 IMEs of the Schedule applied not only to insurer adjusting of claims but could also be applied to serving the ends of fairness. If so, it is difficult to discern how serving the ends of fairness would be restricted to that sole section.

In Sweete and Jevco Insurance Company, (OIC A96-000614, October 24, 1996), Senior Arbitrator Rotter relied in part on the insurer’s violation of its section 64 obligations in the prior Schedule to order interim payment of benefits, disagreeing with the insurer’s submission that the only remedy for its compliance failure was a special award under subsection 282(10) of the Insurance Act.

An adjudicator exercising his or her discretion to make an interim award of benefits in the circumstances of this case, subject to a final determination of entitlement, would be consistent with Stranges. In interpreting the legislation, as set out in Bapoo, in terms of plausibility, acceptability, and efficacy, it would further the goal of the quick and efficient delivery of benefits in accordance with the legislated procedure, protect the integrity of the Schedule and, as stated in Brazier, safeguard a procedural protection for the benefit of insured persons.

I am thus not persuaded that the Arbitrator erred in law to the extent that her order be considered a proper exercise of discretion to award interim benefits, subject to a final hearing. In any event, the Appellant does not set out, as part of its requested relief in this appeal, an order that monies paid to the Respondent pursuant to the Arbitrator’s November 26, 2009 decision be immediately repaid prior to any final arbitration hearing.

Accordingly, pursuant to my authority under subsection 283(5) of the Insurance Act, delegated by subsection 6(4), I vary the Arbitrator’s November 26, 2009 decision by adding a third paragraph to her order that the Arbitrator’s order is interim and the matter shall proceed to an arbitration hearing to determine the Respondent’s final entitlement to the interim award.

V. EXPENSES

The Arbitrator’s July 7, 2010 decision regarding the legal expenses of the arbitration proceeding was not appealed, nor was this decision referenced in submissions. My present authority in this proceeding is restricted to addressing appellate legal expenses.

If the parties are unable to agree on the legal expenses of this appeal, pursuant to Rule 79.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated – September 2010) an expense hearing shall be requested within thirty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the quantum of such expenses.