W.F. v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2011 ONFSCDRS 74

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 74

FSCO A09-000190

BETWEEN:

W.F.

Applicant

and

SECURITY NATIONAL INSURANCE CO./

MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON A MOTION

Before: Jessica Kowalski

Heard: May 26, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Bowie Lui for W.F.

Petros Yannakis for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, W.F., was injured in a motor vehicle accident on April 5, 2007. She applied for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ The parties are engaged in arbitration over W.F.’s entitlement to certain accident benefits before the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issue

Should H.F. be appointed as W.F.’s representative in the dispute resolution process before the Commission pursuant to Rule 10 of the Dispute Resolution Practice Code?

Result

H.F. is appointed as W.F.’s representative to act on W.F.’s behalf in the dispute resolution process before the Commission pursuant to Rule 10.5 of the Dispute Resolution Practice Code.

Background

This is a motion for an order appointing W.F.’s spouse, H.F., to act on W.F.’s behalf in the dispute resolution process before the Commission and to receive and administer statutory accident benefits on behalf of W.F.

In September 2010, W.F.’s lawyers requested an order removing them as her solicitors of record alleging a breakdown in the solicitor-client relationship. I declined to make an order because it came to my attention that W.F. might lack the requisite capacity to instruct her counsel, which might have been to blame for the alleged breakdown. I directed her counsel to Rule 10 of the Dispute Resolution Practice Code (the “Code”). Rule 10.5 of the Code provides that:

Where an adjudicator is not satisfied that a party has the mental capacity to proceed in the dispute resolution process, and there is no attorney or person such as described in Rule 10.3(b) and (c)², the adjudicator may appoint a spouse, same sex partner or near relative of the party to act on the party’s behalf if that person, in the adjudicator’s opinion, is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of the party who has exhibited signs of mental difficulty. The adjudicator may place such conditions or restrictions upon appointments pursuant to this section, as the adjudicator considers reasonable and necessary to protect the interests of the person exhibiting mental difficulty, the other parties to the proceeding and the dispute resolution process.

As a result, counsel for W.F. brought a motion to appoint W.F.’s spouse, H.F., as her representative before the Commission pursuant to Rule 10 of the Code.

The motion

I have decided to appoint H.F. as W.F.’s representative for four reasons:

a) there is evidence of mental difficulty, which has affected W.F.’s ability to instruct her counsel and which is set out in an affidavit sworn by Steven Sieger, counsel for W.F.;

b) the Ontario Superior Court has appointed H.F. as W.F.’s litigation guardian;

c) I find H.F. acceptable to act as a representative; and,

d) the Public Guardian and Trustee has refused and no one else was put or has come forward to act.

H.F. is W.F.’s spouse, although they are currently separated. He is, however, a plaintiff together with W.F. in an action currently before the Superior Court for damages arising out of the same motor vehicle accident. By his affidavit sworn March 11, 2011, H.F. sets out:

his consent to act as W.F.’s “litigation guardian”;
that he has no interest adverse to that of W.F.; and that,
he has retained the law firm of Himelfarb Proszanski LLP to continue with W.F.’s accident benefits file.

According to an affidavit sworn by Mr. Steven Sieger, counsel at Himelfarb Proszanski, on March 3, 2011, W.F. has a history of psychological issues that developed as a result of her motor vehicle accident and that have been deteriorating. In his affidavit, Mr. Sieger states that W.F. is “disabled and requires a litigation guardian for her Accident Benefits [f]ile.” About H.F., Mr. Sieger says that:

…[H.F.] received a degree in medicine in Chile in 1979 and worked in internal medicine until 1987, when he emigrated to Canada. He then received his Master of Health Sciences in 1994 and from 1999 onwards has been working as a Medical Adjudicator for the Ontario Disability Support Program at the Ministry of Community and Social Services.

Although Security National does not oppose the appointment of a representative for W.F. as a person under a disability, at the hearing it submitted that H.F. should not be appointed pursuant to Rule 10 because he does not reside with W.F. Despite their separation, Master Glustein in declaring W.F. as a person under a disability in the tort action in the Superior Court appointed H.F. as her litigation guardian. The Public Guardian and Trustee refused to represent W.F., despite a request made by her counsel. Her children have also declined to act and no one else has been put or has come forward to act.

Security National only raised its concerns about H.F. at the hearing and argues that it should have the opportunity to cross-examine H.F. Security National was served with W.F.’s motion record, including H.F.’s and Mr. Sieger’s affidavits in March 2011 and was therefore afforded ample time to cross-examine the deponents if it had concerns like those raised at this hearing. The Statutory Powers Procedure Act provides at subsection 15(1) that:

15. Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

I am not persuaded by Security National’s submission that H.F. ought not act on behalf of W.F. On the one hand, Security National complains about the slow pace of the application, but on the other, it gave W.F. no notice of these concerns, and despite being served with W.F.’s materials well in advance to review them, Security National did not raise any concerns regarding their contents. H.F. has indicated his willingness to act as W.F.’s representative in an affidavit. The Public Guardian and Trustee declined to act on W.F.’s behalf in the arbitration process. Her adult children have also refused to come forward. By order dated January 24, 2011 the Superior Court appointed H.F. to be W.F.’s litigation guardian in her tort action, and I have no persuasive evidence that he should not be her representative in the dispute resolution process before the Commission.

Preliminary Issue: Request to dismiss application for arbitration

At the start of the motion, Security National requested an order that W.F.’s application for arbitration be dismissed because of delays in moving it forward. Where the slow pace of arbitration arises from W.F.’s incapacity, it would be unfair to dismiss her application, especially where someone has now come forward to represent her and instruct her counsel.

Security National’s concerns about the pace of the arbitration as articulated at this hearing are addressed with the appointment of H.F. as W.F.’s representative. With H.F.’s appointment, W.F.’s solicitors no longer seek an order to be removed from the record; they are prepared to take instructions from H.F. on W.F.’s behalf so that the arbitration application can move forward.

August 31, 2011

Jessica Kowalski

Arbitrator

Date