Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 50

FSCO A09-002812

BETWEEN:

GUNAVANTHANY SUTGHARSAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran

Heard: May 24, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Daniel J. Holland for Ms. Sutgharsan

Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Gunavanthany Sutgharsan, was involved in a motor vehicle accident on January 15, 2008. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Sutgharsan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Should the hearing be adjourned?

Result:

The hearing is adjourned to October 21, 24, 25, 26 and 27, 2011.

EVIDENCE AND ANALYSIS:

A hearing was scheduled before me on May 24, 25 and 26, 2011.

In the course of the opening statements, a new issue arose about the quantum of income replacement benefits. Ms. Sutgharsan’s claim for income replacement benefits was at the rate of $348.96 from June 27, 2008 to May 9, 2010 and $400 from May 10, 2010 to date and ongoing. State Farm submitted that it appeared from recent productions that Ms. Sutgharsan had received collateral benefits during the period when she had also received income replacement benefits. There had not been a calculation under the Schedule quantifying the amount of income replacement benefits after taking into account the receipt of collateral benefits.

An attempt was made to determine the amount of income replacement benefits claimed. However, there was not adequate information from the collateral benefits carrier about the duration and amount paid to Ms. Sutgharsan. Apparently, there is an ongoing dispute with the accident benefits carrier about disability benefits which is proceeding to mediation this summer.

I was not prepared to proceed when it became apparent that neither party was able to quantify the amount of income replacement benefits which were in dispute. It appeared that at least one party and possibly, both parties might need to engage an accountant for an analysis and report. It also appeared that a clearer picture might emerge after the mediation with the collateral benefits carrier about the issue of disability benefits and their impact on the quantum of entitlement to income replacement benefits.

I find that the lack of knowledge surrounding the quantum of income replacement benefits to which Ms. Sutgharsan might potentially be entitled was substantial enough to justify not proceeding with the hearing. It should be noted, however, that an adjournment also acts as a remedy for other issues. For example, only 3 days were scheduled for the hearing. It was evident that more time was required for a full and fair hearing. Consequently, I scheduled a total of 5 days for the hearing. Also, State Farm objected to the introduction of a report from Dr. Manokaran, a rheumatologist, which was not filed within the 30 days before the hearing required under the Dispute Resolution Practice Code. Dr. Mather, the family physician, referred the applicant to Dr. Manokaran, whose August 25, 2010 report was not included in his clinical notes and records. State Farm also objected to an attempt to introduce a new diagnosis of her condition for the first time at the hearing. As a consequence, State Farm requested that Dr. Manokaran be made available for cross-examination if his report were admitted into evidence. State Farm also expressed a desire to schedule a rheumatological assessment for Ms. Sutgharsan, which was agreed to by the Applicant.

I am not seized of this matter as I heard no evidence. The parties have requested that I remain involved in the file for case management purposes, which I am pleased to do.

EXPENSES:

I heard no submissions with respect to expenses. If this matter proceeds to hearing, I leave the issue of expenses to the hearing arbitrator. Otherwise, I am prepared to deal with the issue of expenses if the parties are unable to resolve them.

June 13, 2011

Judith Killoran

Arbitrator

Date

Financial Services Commission des