Neutral Citation: 2010 ONFSCDRS 26

FSCO A09-000350, A09-000351 & A09-000352

BETWEEN:

RUZICA PEK and FRANK PEK Applicants

and

ING INSURANCE COMPANY OF CANADA Insurer

PRE-HEARING DECISION

Before: Arbitrator Suesan Alves

Heard: By telephone conference call on February 8, 2010.

Appearances: Allen Wynperle and Sandra Malcolm for Mr. and Mrs. Pek Lisa Van Arnhem for ING Insurance Company of Canada

Issues:

The Applicant, Ruzica Pek, was injured in motor vehicle accidents on November 22, 2005 and on December 21, 2007. The Applicant Frank Pek, the husband of Ruzica Pek, was also injured in the December 21, 2007 motor vehicle accident. ING Insurance Company of Canada (“ING”), is the insurer responsible for paying Mr. and Mrs. Pek’s statutory accident benefits under the Schedule¹ as a result of these accidents. In February 2009, Mr. and Mrs. Pek filed three arbitration applications with the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Shortly after the arbitration applications were registered, a senior arbitrator combined the three arbitration applications for administrative purposes and waived the second and third assessments payable by ING pending the Order of the pre-hearing arbitrator.

The issue is:

Should the three arbitration applications be combined?

Result:

The two arbitration applications in relation to Mrs. Pek should be heard together. Those arbitration applications should be heard separately from that of Mr. Pek. In the result ING will be charged one additional assessment.

EVIDENCE AND ANALYSIS:

Background

Three arbitration applications were filed on behalf of the Applicants Ruzica Pek and Frank Pek on February 11, 2009. They were registered as files A09-000350, A09-000351 and A09-000352. ING is the statutory accident benefits insurer in relation to Mr. and Mrs. Pek’s claims and responded to all three arbitration applications.

The Applicants are husband and wife, live at the same address, have the same representative, the same insurer and were both involved in the second of two motor vehicle accidents. Both claimed weekly income benefits and medical benefits. On this basis a Senior Arbitrator combined the files for administrative purposes and requested a waiver of the second and third assessments payable by the Insurer, pending the Order of the pre-hearing arbitrator pursuant to Rule 30 of the Dispute Resolution Practice Code Fourth Edition — Updated October 2003 (the “Code”).

Rule 30 of the Code provides that:

COMBINING APPLICATIONS

30.1 Where two or more Applications for Arbitration have been filed and it appears that:

(a) they have an issue or question of law, fact, or policy in common; or

(b) the application of this Rule will result in the most just, quickest, and least expensive means to deal with the Applications;

The Dispute Resolution Group will notify the parties in writing of the intention to:

(d) schedule the proceedings to be heard at the same time;

(e) schedule one or more proceedings to be heard one immediately after the other by the same arbitrator; or

(f) suspend the scheduling of a proceeding or proceedings until the determination of any one of them.

30.2 Where a party objects to a notice made under Rule 30.1, the party must promptly notify the Dispute Resolution Group and the other parties involved, in writing, of the objection.

30.3 An arbitrator will consider an objection made under Rule 30.2 and make an order on such terms as he or she considers just.

At the pre-hearing of these cases, held on February 8, 2010 the question of whether the three arbitration applications should be combined was addressed. There was tacit agreement that Mrs. Pek’s arbitration applications should be heard together. However the Applicants and the Insurer differed as to whether Mr. Pek’s arbitration should be heard immediately following those of Mrs. Pek’s or heard separately.

For the reasons which follow, I find that Mrs. Pek’s arbitrations should be heard together; however, they should be heard separately from Mr. Pek’s arbitration.

Analysis & Findings

Mrs. Pek filed one arbitration application in relation to her claims for statutory accident benefits as a result of a motor vehicle accident on November 22, 2005 and a second application in relation to her claims as a result of a motor vehicle accident on December 21, 2007.

The parties agreed that the issues to be arbitrated in relation to Mrs. Pek’s motor vehicle accident of November 22, 2005 are her claims for income replacement benefits; medical benefits for transportation expenses; attendant care; and housekeeping and home maintenance benefits, interest, a special award and both parties’ claims for expenses. The agreed upon issues in relation to her December 21, 2007 accident were attendant care; medical benefits for dental and periodontal services; as well as interest, a special award and both parties’ expenses.

I will first deal with Mrs. Pek’s arbitration applications. I am persuaded that combining Mrs. Pek’s arbitration applications will result in the most just, quickest and least expensive means to deal with her claims for statutory accident benefits as a result of both accidents. Both of her arbitration proceedings should be heard together as there may be overlapping claims and causation issues. One proceeding in relation to her claims would minimize the inconvenience to the expert witnesses the parties intend to call in relation to her claims.

I will now deal with the request to combine all three arbitration applications. Mr. Pek’s arbitration application relates to his claims for statutory accident benefits as a result of the December 21, 2007 accident. The parties agreed that the issues to be arbitrated in relation to that accident are his claims for income replacement benefits; medical and rehabilitation benefits for occupational therapy, physiotherapy, and botox injections; the cost of a neuropsychological assessment; interest, a special award, and Mr. Pek’s and ING’s claims for their arbitration expenses.

Counsel for the Applicants submitted that there was no judicial economy in having Mr. and Mrs. Pek’s arbitrations heard together or consecutively: there were significant differences in the issues raised in relation to each Applicant; the expert witnesses were different and there would be delay caused by the practical difficulty of finding two consecutive weeks of hearing time available to both counsel in the near future.

Counsel for the Insurer submitted that Mr. and Mrs. Pek’s arbitration proceedings should be heard together or consecutively as there was overlap with respect to the housekeeping and the attendant care issues. The housekeeping claim related to services provided for the family unit and Mr. Pek provided attendant care for his wife.

Mr and Mrs. Pek were both identified as witnesses at Mrs. Pek’s arbitration hearing with respect to the housekeeping and attendant care claims. This ensures that the necessary evidence in relation to those claims will be adduced. They are the only witnesses in common identified at the pre-hearing in relation to the three arbitration applications.

I was not persuaded that Mr. Pek’s arbitration application should be combined with those of Mrs. Pek, as the issues they raise are quite dissimilar when examined more closely. I was advised that Mr. Pek is working and the quantum dispute in relation to his claim for income replacement benefits is largely due to a disagreement as to how to calculate, match and deduct his post-accident earnings. Mrs. Pek’s claim for income replacement benefits is largely about ongoing entitlement including a claim for post-104 week benefits.

Mr. Pek’s claim for medical and rehabilitation benefits involves occupational therapy, physiotherapy and botox injections, while Mrs. Pek’s claim for medical benefits involves a claim for transportation expenses in relation to her earlier accident, and claims for dental and periodontal services in relation to her later accident. Mr. Pek and Mrs. Pek had different treatment providers. Mr. Pek’s claim for the cost of a neuropsychological assessment and Mrs. Pek’s claims for attendant care are discrete issues. There could conceivably be overlap in relation to each Applicant’s claim for a special award.

I was not persuaded that there would be a significant degree of judicial economy in having Mr. Pek’s arbitration arising from one accident and Mrs. Pek’s arbitrations arising from two accidents heard together. While there might appear to be some superficial similarity in the claims for weekly benefits and medical benefits, on examination, the nature of the Applicants’ claims were quite different. None of the expert witnesses identified at the pre-hearing in relation to Mr. Pek were identified as witnesses at Mrs. Pek’s hearing. I agree with counsel for the Applicant that it would be quicker to schedule these hearings separately, rather than try to find two consecutive weeks during which both counsel are available. Scheduling the three proceedings together would lead to delay in determining both Applicants’ entitlement to benefits and would not result in the most just, quickest, and least expensive means to deal with the Applications.

For these reasons, I conclude that while Mrs. Pek’s two arbitration proceedings FSCO A09-000350 and FSCO A09-000351 should be heard together in November 2010; Mr. Pek’s arbitration application FSCO A09-00352 should be heard separately in January 2011.

Filing Fees

ING paid one assessment in relation to the three arbitration applications; two assessments were waived pending the Order of the pre-hearing arbitrator. As there will be two arbitration proceedings, ING is obliged to pay one additional assessment.

According to the documentation in the arbitration files, the Applicants paid three filing fees. As the Insurer will be responsible for payment of two filing fees, I turned to the provisions of the Code to see whether relief similar to that afforded the insurer—the payment of two, instead of three filing fees—was available to the Applicants. Rule 3.6 of the Code provides that

Filing fees will not be refunded by the Commission but may be recovered as part of an applicant's expenses under the Insurance Act, the Financial Services Commission of Ontario Act, 1997, or Ontario Regulations.

Based on the provisions of Rule 3.6 of the Code, the Applicants will therefore need to wait until expenses are addressed to recover the filing fees they paid in relation to these arbitration applications.

March 8, 2010

Suesan Alves Arbitrator

Date

Financial Services Commission of Ontario