ORDER

Before: Joyce Miller Heard: April 8, 2011, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Nicolas Canizares for Mr. Uribe Paul Kiddey for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Jose Escobar Uribe, was injured in a motor vehicle accident on December 11, 2006. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on May 2, 2007. The parties were unable to resolve their disputes through mediation, and Mr. Uribe applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on April 8, 2011, I made the following order:

Wawanesa shall forthwith provide Mr. Uribe with the date that the overpayment owing to Wawanesa was satisfied.
Wawanesa shall forthwith resume payment of income replacement benefits as per the interim benefit order dated September 25, 2008, from the date that the overpayment was satisfied.

BACKGROUND

On September 25, 2008, I made the following interim benefit order:

Wawanesa shall pay interim income replacement benefits in the amount of $311.40 a week from May 3, 2007 and ongoing until a final arbitration order is made.

An arbitration hearing was scheduled to commence on March 25, 2009. At the commencement of the hearing, the parties agreed that Wawanesa would suspend paying an income replacement benefit in the amount of $311.40 a week as per the interim benefit order until the amount of an overpayment owed by Mr. Uribe to Wawanesa was satisfied.

The arbitration hearing on the substantive issues did not proceed on March 25, 2009. The hearing instead proceeded on a preliminary issue on whether income earned by Mr. Uribe from June 2006 to October 2006 should be included in the calculation of any income replacement benefit.

The Arbitrator issued a decision on April 29, 2009 in favour of Wawanesa. Mr. Uribe appealed the decision. The Director’s Delegate allowed the appeal in a decision dated February 5, 2010.

Wawanesa brought an application for judicial review of the appeal order. In a decision dated October 25, 2010, the Divisional Court upheld the Director’s Delegate’s decision.

On April 8, 2011, I presided at a pre-hearing where Mr. Uribe requested that I make an order that Wawanesa provide Mr. Uribe with the date that the overpayment was satisfied and an order that Wawanesa resume payment of income replacement benefits as per the interim benefit order dated September 25, 2008, from the date that the overpayment was satisfied.

Mr. Uribe presented two letters dated July 8 and August 3, 2010 which were sent to Mr. Paul Kiddey, and one letter dated November 16, 2010 to Mr. Ian Kirby, who are both counsel on this file for Wawanesa.

In substance, the letters ask for details of the income replacement benefit overpayment and the resumption of the suspended payment for income replacement benefits.

Mr. Uribe submitted that he did not receive any response to these inquires. He further submitted that his counsel called the adjuster on the file, Ms. Cindy Tse, regarding the inquires. Her response was that he should contact Mr. Kirby regarding this issue. Ms. Tse who was present at the pre-hearing confirmed that she in fact did receive this call and did advise Mr. Uribe’s counsel to contact Mr. Kirby.

Mr. Uribe submitted that since counsel for Wawanesa has never responded to his requests for information, Mr. Uribe is asking that I order Wawanesa to provide Mr. Uribe with the date that the overpayment was satisfied and an order that Wawanesa shall resume payment of income replacement benefits as per the interim benefit order dated September 25, 2008, from the date that the overpayment was satisfied.

Counsel for Wawanesa, did not make any submissions as to why this order should not be made.

FINDING

Rule 32.3 of the Dispute Resolution Practice Code provides that an arbitrator can at any time make an order for the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate.

Accordingly, there being no submissions opposing the request for the order, and based on the evidence before me, I made an oral order that Wawanesa forthwith provide Mr. Uribe with the information regarding the date that the overpayment was satisfied and that Wawanesa forthwith resume payment of income replacement benefits as per the interim benefit order dated September 25, 2008, from the date that the overpayment was satisfied.

May 10, 2011

Joyce Miller Arbitrator

ARBITRATION ORDER

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

Wawanesa shall forthwith provide Mr. Uribe with the date that the overpayment owing to Wawanesa was satisfied.
Wawanesa shall forthwith resume payment of income replacement benefits as per the interim benefit order dated September 25, 2008, from the date that the overpayment was satisfied.