Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 9

FSCO A07-000288

BETWEEN:

YOLANDA GIRAO Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Lloyd (J.R.) Richards

Heard: May 19 and 20, 2010, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Victor Mesta for Ms. Girao Eric K. Grossman for Allstate Insurance Company of Canada

Issues:

The Applicant, Yolanda Girao, was injured in a motor vehicle accident on June 19, 2002. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate subsequently terminated certain of Ms. Girao’s benefits. The parties were unable to resolve their disputes through mediation, and Ms. Girao applied for arbitration at the Financial Services Commission of Ontario (“Commission”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties agreed to have a preliminary issue hearing before the main hearing in order to address the following issues. Allstate raised statutory defences in respect of most of the issues to be addressed in this preliminary issue hearing. The preliminary issues are as follows:

Insurance Act − Subsection 281(5) defenses

1. Is Ms.Girao entitled to payment for a report by Dr. Burns in the amount of $1,275.00, pursuant to section 24 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

2. Is Ms. Girao entitled to payment for a Catastrophic Determination rebuttal report, completed by Omega Medical Associates, in the amount of $15,116.77, pursuant to section 24 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

3. Is Ms. Girao entitled to payment for a report by Dr. Manohar in the amount of $400.00, pursuant to section 24 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

4. Is Ms. Girao entitled to payments for housekeeping and home maintenance services, from June 20, 2002 to October 3, 2003, pursuant to section 22 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

5. Is Ms. Girao entitled to expenses for transportation to Dr. Mancuso’s office in the amount of $3,000.00, pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

6. Is Ms. Girao entitled to the cost of dental treatment provided by Dr. Mancuso, in the amount of $1,995.03, pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

7. Did Ms. Girao suffer a catastrophic impairment within the meaning of sections 2(1.1)(f) and (g) of the Schedule as a result of the accident? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

8. Is Ms. Girao entitled to the cost of dental treatments in the amount of $40,654.20, pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act. Allstate also alleges that Ms. Girao failed to comply with the notice requirements set out in section 32 of the Schedule and the claim is therefore barred by section 50(a) of the Schedule.

Schedule − Sections 32, 38 and 50(a) defenses

9. Is Ms. Girao entitled to payment for proposed back surgery in Florida in the amount of $37,473.00 (US$), pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue as she failed to provide a treatment plan as required by section 38 of the Schedule. Allstate also alleges that Ms. Girao failed to comply with the notice requirements set out in section 32 of the Schedule and the claim is therefore barred by section 50(a) of the Schedule. Allstate further alleges that Ms. Girao failed to seek pre-approval for this benefit as required by section 38 of the Schedule.

Schedule − Section 42 defense

10. Is Ms. Girao entitled to payments for acupuncture expenses in the amount of $542.59, pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this claim as she failed to attend an insurer’s examination as required by section 42 of the Schedule.

Other issues

11. Is Ms. Girao entitled to expenses in the amount of $127.56 for transportation costs incurred in 2005 and 2006, pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

12. Is Ms. Girao entitled to payment for transportation expenses in the amount of $2,914.28, pursuant to section 14 of the Schedule? Allstate alleges that Ms. Girao is precluded from proceeding to arbitration on this issue as she failed to comply with the notice requirements set out in section 32 of the Schedule and the claim is therefore barred by section 50(a) of the Schedule.

13. Is Ms. Girao entitled to an order setting aside a settlement previously agreed to on the ground that it was not fair?

14. Is Ms. Girao entitled to an interim order pursuant to section 279 (4.1) of the Insurance Act for payment of the cost to update the following reports?

a. Past and future income and pension loss report

b. Future care needs and cost analysis report

c. Present value of future care needs

15. Is Ms. Girao entitled to relief from forfeiture, pursuant to section 129 of the Insurance Act?

Result:

1. Ms. Girao is permitted to pursue at arbitration her claim for payment of a report by Dr. Burns in the amount of $1,275.00.

2. Ms. Girao is permitted to pursue at arbitration her claim for payment of a Catastrophic Determination rebuttal report, completed by Omega Medical Associates, in the amount of $15,116.77.

3. Ms. Girao is permitted to pursue at arbitration her claim for payment of a report by Dr. Manohar in the amount of $400.00.

4. Ms. Girao is precluded from pursuing at arbitration her claim for payments of housekeeping and home maintenance services, from June 20, 2002 to October 3, 2003.

5. Ms. Girao is precluded from proceeding to arbitration on the issue of whether she is entitled to expenses for transportation to Dr. Mancuso’s office in the amount of $3,000.00 because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

6. Ms. Girao is precluded from pursuing at arbitration her claim for the cost of dental treatment provided by Dr. Mancuso, in the amount of $1,995.03.

7. Ms. Girao is precluded from proceeding to arbitration on the issue of whether she suffered a catastrophic impairment within the meaning of sections 2(1.1)(f) and (g) of the Schedule as a result of the accident because she filed her application for arbitration beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act.

8. Ms. Girao is precluded from pursuing at arbitration her claim for the cost of dental treatments in the amount of $40,654.20.

9. Ms. Girao is permitted to pursue her claim at arbitration for proposed back surgery in Florida in the amount of $37,473.00 (US$).

10. Ms. Girao is precluded from pursuing at arbitration the portion of her claim for acupuncture expenses in the amount of $542.59 that Allstate has not agreed to fund.

11. Allstate withdrew its preliminary hearing objection to Ms. Girao’s claim for expenses in the amount of $127.56 for transportation costs incurred in 2005 and 2006 and accepts that this matter can be considered at the substantive hearing of Ms. Girao’s claims.

12. Allstate withdrew its preliminary hearing objection to Ms. Girao’s claim for entitlement to payment for transportation expenses in the amount of $2,914.28 and accepts that this matter can be considered at the substantive hearing of Ms. Girao’s claims.

13. Ms. Girao is precluded from rescinding a settlement agreement with Allstate on the ground that it was not fair.

14. I decline to exercise my discretion to order that Allstate pay for the following reports:

a. Past and future income and pension loss report

b. Future care needs and cost analysis report

c. Present value of future care needs

15. I do not have the jurisdiction to grant Ms. Girao’s request for relief from forfeiture.

EVIDENCE AND ANALYSIS:

Background

Ms. Girao’s claims have been ongoing since 2002. Initially she was represented by a law firm. When Ms. Girao made her present arbitration application, she was represented by her husband, Mr. Victor Mesta, and continues to be.

Allstate’s primary defense to Ms. Girao’s claims rests on the fact that she filed an arbitration application in 2007 containing many of the issues in dispute that are before me now. Despite Allstate’s objections, she subsequently withdrew that application. Ms. Girao then filed an arbitration application in 2010, which included new issues in dispute as well as issues in dispute from the 2007 application. Allstate takes the position that Ms. Girao cannot dispute the issues that were included in the 2007 application as those issues have now been filed beyond the two-year limitation period set out in the Insurance Act.

I will address Ms. Girao’s claims in relation to Allstate’s statutory defenses.

Withdrawal from an arbitration and subsequent attempt to arbitrate the previously withdrawn issues

Rule 70 of the Dispute Resolution Practice Code (“DRPC”) allows a party to seek permission to withdraw all or part of an issue and further allows an adjudicator to permit the withdrawal on terms and conditions the adjudicator considers just. An adjudicator has the discretion to award costs to address any issues arising from the withdrawal. The DRPC is silent on whether an applicant can refile a withdrawn application for arbitration.

There are few decisions from this Commission dealing with the issue of withdrawing and refiling. In Bilusack and Co-operators General Insurance Company², the applicant filed an arbitration application and a date was set for the hearing. The applicant then sought an adjournment, which was denied, and decided to withdraw the application despite the insurer’s objections. The applicant subsequently sought to refile the application, claiming that the Commission had unfairly denied her adjournment request.

The arbitrator considered whether Ms. Bilusack’s withdrawal and attempt to refile were an abuse of the Commission’s process. The arbitrator looked at Ms. Bilusack’s reasons for withdrawal, which included: needing time to retain counsel; time to meet production requests; and the fact that Ms. Bilusack claimed she was near emotional collapse. The arbitrator found that Ms. Bilusack had no justification for withdrawing from the arbitration and that she had in fact abused the Commission’s process. The arbitrator noted that section 23(1) of the Statutory Powers Procedure Act³ gave her the discretion to prohibit Ms. Bilusack from refiling in order to prevent abuses of process. Nevertheless, the arbitrator declined to prohibit Ms. Bilusack from refiling because Ms. Bilusack had not yet had a hearing on the merits of her claim. The arbitrator held that “…the prejudice that would result from a complete denial of a hearing outweighs the harm caused to the insurer by permitting her to refile.”⁴ The arbitrator imposed costs to address Ms. Bilusack’s abuse.

The courts have grappled with withdrawals − what their process calls a notice of discontinuance − and are clear on a number of principles.⁵ First, there is an expectation of finality flowing from a notice of discontinuance. A plaintiff’s request to discontinue litigation is a serious step which should not be lightly undone. Second, if prejudice will occur, such as where a limitation period has expired, setting aside the notice of discontinuance should not be granted unless special circumstances exist. Such circumstances can include inadvertence, misapprehension or mistake.

Taken together, the decisions of the courts and this Commission provide a framework within which to consider Ms. Girao’s withdrawal and attempt to refile. First, I will consider whether Ms. Girao’s refiling of her claims is an abuse of process. Second, I will consider whether any special circumstances exist in this case that would allow Ms. Girao to proceed to a hearing, despite the expiration of the limitation period on a number of her claims.

Abuse of process

Ms. Girao submitted an application for catastrophic determination, completed by Dr. Judith Pilowsky, to Allstate in February, 2006.⁶ Allstate eventually determined that Ms. Girao was not catastrophically impaired. Ms. Girao disputed Allstate’s determination and filed a mediation application, dated September 5, 2006.⁷ The mediator’s report in the matter, dated December 11, 2006,⁸ addressed the catastrophic determination issue, noted it as remaining in dispute, and also included other disputed items. Ms. Girao then filed an arbitration application, which this Commission’s arbitration unit received on February 12, 2007.⁹

The pre-hearing in Ms. Girao’s February 12, 2007 arbitration application took place on July 16, 2007. The pre-hearing arbitrator noted May 5 to 15, 2008 as the hearing dates for the arbitration.¹⁰ Ms. Girao sent correspondence to this Commission, dated March 28, 2008, requesting that the hearing be adjourned as she had made a complaint against Allstate to this Commission’s Market Conduct Branch.¹¹ The Market Conduct Branch investigates allegations against companies that may have engaged in deceptive or illegal practices. Ms. Girao did not put a copy of her Market Conduct complaint in to evidence, and so I have not seen, nor will I consider the merits of that complaint. Ms. Girao also did not enter into evidence any correspondence from the Market Conduct Branch advising her of the process involved in making a complaint. Ms. Girao’s initial adjournment request was denied and she, by correspondence dated April 2, 2008, made a second adjournment request noting that she wished to allow the Market Conduct Branch to conclude its investigation.¹²

Correspondence to Ms. Girao from the Senior Arbitrator in this Commission’s Arbitration Unit, dated April 9, 2008, sheds some light on why Ms. Girao requested the adjournment. In the letter, the Senior Arbitrator advises Ms. Girao that the Director of Arbitrations agrees with the decision of the Market Conduct Branch to not proceed with an investigation until the arbitration process is concluded. The letter further states that the decision was made to ensure that the investigation does not interfere with ongoing arbitration proceedings and does not prejudice either party’s position. In addition, the letter denies the second adjournment request.¹³

Settlement discussions in the arbitration proceeding took place on April 11, 2008, at which point Ms. Girao’s husband had commenced representing her. The settlement discussions were not successful and Ms. Girao again requested an adjournment during the proceeding. The request was denied.¹⁴

By letter dated April 22, 2008, Allstate requested an adjournment of the May 5 to 15 arbitration hearing because of a death in counsel’s family.¹⁵ The Senior Arbitrator, by correspondence dated May 2, 2008, granted Allstate’s adjournment request and adjourned the hearing, with the matter now scheduled to commence December 8, 2008.¹⁶

By letter dated April 28, 2008, Ms. Girao sent correspondence to the arbitration unit to “release” arbitration number A07-000288 as she wished that the Market Conduct Branch proceed with its investigation.¹⁷

Ms. Girao sought Allstate’s consent to withdraw the arbitration by letter dated May 1, 2008.¹⁸ Allstate, by letter dated May 5, 2008, refused to consent to Ms. Girao’s withdrawal of the arbitration and advised Ms. Girao about section 281 of the Insurance Act, which requires that any arbitration or litigation be commenced within two years of the insurer’s refusal to pay a benefit. Allstate’s letter states, in part:

While I have no obligation to educate you on matters of law, I feel obliged to make you aware of what I consider a significant problem for you if you seek to withdraw the arbitration. Section 281 of the Insurance Act requires that any arbitration or litigation be commenced within two years of the insurer’s refusal to pay a benefit. In this case, if you withdraw the arbitration, and seek to file a new arbitration or commence a new law suit, Allstate will seek to rely on any limitation defence it may have available to it. If the issues in dispute were denied more than two years before the new application is commenced, you will be out of time and the claims will be dismissed.¹⁹

Ms. Girao forwarded correspondence to the Arbitration Unit, dated May 8, 2008, acknowledging Allstate’s position and reiterating her decision to withdraw the arbitration. The letter states:

I received your letter dated May 2, 2008 related to the adjourned Arbitrations and I received as well the letter of Mr. Grossman dated May 5, 2008 related to the “withdraw of the Arbitration”. As I mentioned in my letter dated May 1, 2008 to Mr. Grossman and served through the Form F to him; my decision is to withdraw the Arbitration A07-000288-MMM, Rule 70 of the Code, to let the Market Conduct Unit proceed with the investigation.²⁰

Ms. Girao and Allstate proceeded to a hearing on June 20, 2008, before Arbitrator Killoran, on the withdrawal issue. Arbitrator Killoran issued her decision of June 27, 2008 on the issue, allowing Ms. Girao to withdraw and noting that effective November 1, 2003, new requirements were enacted for individuals who are not lawyers and who provide representation to applicants under the Schedule. These requirements obliged Ms. Girao to execute a document confirming that her husband was representing her without compensation and with full authorization to discuss all issues in dispute, to negotiate and enter into any agreement or settlement of any or all issues in dispute, on her behalf, in connection with the application. Ms. Girao forwarded such a document to this Commission and Arbitrator Killoran found that Mr. Mesta had complied with these requirements and was therefore entitled to withdraw the arbitration on Ms. Girao’s behalf.²¹ Arbitrator Killoran did not impose any terms or conditions on the withdrawal.

By correspondence dated September 5, 2008, the Market Conduct Branch advised Ms. Girao that it would not pursue her complaint any further as the issues she raised should be assessed at the Dispute Resolution Branch.²²

It appears that there is correspondence between Ms. Girao and this Commission after the September 5, 2008 Market Conduct Branch letter. However, I do not have such correspondence. Mr. Robert Christie was this Commission’s CEO at that time and the next relevant communication before me is his letter to Ms. Giroa, dated April 16, 2009, advising her that the Market Conduct decision is closed and that she has provided no new information to substantiate her claims. In addition, he advises her that the matters she complains of are about her entitlement to benefits and such matters must be substantively determined by the dispute resolution process or through the courts before the Market Conduct Branch can determine if it has a complete set of facts required to complete a review of her complaint.²³ On May 5, 2009, Ms. Girao wrote to Mr. Christie asking for an explanation of the portion of his correspondence that stated that she had to access the dispute resolution system or the courts.²⁴ He replied, stating that he has requested that this Commission’s Market Conduct Practices Analyst contact her to address her concerns. The analyst subsequently contacted Ms. Girao and she indicated that she was satisfied with the response.²⁵

Ms. Girao wrote to the Director of Arbitrations, by letter dated May 11, 2009, to request relief from forfeiture, pursuant to section 129 of the Insurance Act.²⁶ She then filed a mediation application, received by the Commission July 29, 2009.²⁷ The mediator’s report, issued December 10, 2009,²⁸ details the issues listed in the application as well as other issues that were added at the mediation. Ms. Girao then filed an arbitration application, dated January 11, 2010.²⁹

At the time Ms. Girao filed her first mediation application on September 5, 2006, she was represented by the law firm Bogoroch & Associates. The same firm also represented her at the July 17, 2007 pre-hearing. By March 28, 2008, her husband, Mr. Victor Mesta had begun representing her. Mr. Mesta communicated with the arbitration unit on his wife’s behalf and also represented her at the hearing to consider the withdrawal as well as at this preliminary issue hearing.

I find that Ms. Girao made a decision to pursue a market conduct complaint and withdraw her arbitration application. I do not know the scope of the remedies available at the Market Conduct Branch, but Ms. Girao clearly wished to access that process before having her accident benefit claims addressed at arbitration. As such, Ms. Giroa made two adjournment requests to the Arbitration Unit. On both occasions her adjournment requests were denied because adjudicators determined that her requests did not meet the criteria for granting an adjournment. In the face of the denied adjournment requests Ms. Girao made a decision to withdraw her arbitration application and pursue the market conduct complaint. She had the option of putting her market conduct complaint against Allstate on hold until the arbitration process determined the outcome of her disputed claims. After which point she could have addressed her market conduct complaint. I note Ms. Girao’s options because at no point did the correspondence before me indicate that there were any limitations concerning the market conduct complaint process that would have precluded her from addressing her complaints in that forum once the arbitration process had concluded and a decision had been rendered.

After the Market Conduct Branch made its decision that it would not pursue Ms. Girao’s complaints against Allstate, she refiled her arbitration application. I find that Ms. Girao’s withdrawal and refiling of her arbitration application was her attempt to circumvent the adjournment process. She clearly felt strongly that the Market Conduct Branch could address her concerns against Allstate and she did not wish to wait until after the conclusion of the arbitration to get a Market Conduct decision. In addition, I find that Ms. Girao has engaged in forum shopping. When the Market Conduct Branch delivered a decision that was not in Ms. Girao’s favour, she revived her arbitration application. I find that Ms. Girao’s unwillingness to abide by the Arbitration Unit’s decision to not grant her an adjournment and her forum shopping amount to an abuse of process.

As in the Bilusack decision,³⁰ I recognize that section 23 of the Statutory Powers Procedure Act grants me the discretion to prevent an abuse of this Commission’s processes by prohibiting Ms. Girao from refiling for arbitration. Further, as in Bilusack, I am also mindful that Ms. Girao has not had a hearing on the merits of her claim. I believe that any harm to Allstate caused by allowing her to refile would be outweighed by the prejudice resulting from my preventing Ms. Girao from having her claims adjudicated. I find that it would be unfair to prevent her from refiling and so I conclude that Ms. Girao may refile her arbitration application.

Refiling where a limitation period has expired

The limitation provisions in the Insurance Act and the Schedule strike a balance between allowing applicants to make claims while ensuring that insurers do not face claims indefinitely. Since insurance legislation, at least in part, is meant to protect consumers, limitation periods should be construed narrowly.³¹ However, fairness dictates that a line needs to be drawn at which point an applicant can no longer bring suit against an insurer.

In Ms. Girao’s case, she filed an application, withdrew it and refiled an application concerning the same issues after the limitation period had expired. I do not find that Allstate has to demonstrate actual prejudice flowing from Ms. Girao’s refiling of her arbitration application. I agree with the decision in Woodheath Developments Ltd. V. Goldman³² where the Master found that there was a presumption of prejudice where the limitation period had expired and the defendant did not need to lead actual evidence of prejudice. The onus is on Ms. Girao to either rebut the presumption of prejudice or demonstrate that special circumstances such as inadvertence, misapprehension or mistake exist in this case that allow her to refile after the expiration of a limitation period.

Ms. Girao certainly does not demonstrate inadvertence in this case. She was not heedless, careless or failed to pay proper attention to the proceedings. The correspondence between Ms. Girao and this Commission evidence someone who is very involved in this process. She was very clear in her reasoning when she requested the adjournments, she engaged the Market Conduct Branch and participated in a hearing concerning her withdrawal request.

I also do not find that Ms. Girao can assert mistake or misapprehension in this case. According to Black’s Law Dictionary, 6^th Edition, “A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.”

After Ms. Girao made her withdrawal request, Allstate very clearly spelled out for her that it would be relying on a limitation defense if she refiled her claim. Allstate’s letter to Ms. Girao informed her that if more than two years passed between Allstate’s denial and her claim, then she would be out of time. Ms. Girao acknowledged receipt of this correspondence and still persisted in her request. She then participated in a hearing where an arbitrator considered her request. The arbitrator in that hearing determined that Ms. Girao’s husband had the capacity and the authority to represent her and granted Ms. Girao’s withdrawal request. I find that Ms. Girao was fully aware of the possible consequences of her withdrawal request. I also find that Ms. Girao had ample opportunity to forego the withdrawal request and allow the arbitration to run its course before allowing the Market Conduct Branch to address her complaint. Ms. Girao did not misapprehend or misunderstand the process. Rather, she made a deliberate choice to withdraw her arbitration, preferring instead to have the Market Conduct Branch address her concerns. When the Market Conduct Branch did not decide in her favour, she decided to refile her arbitration application. In this case, I do not find that special circumstances exist that would permit Ms. Girao to refile where a limitation period has expired.

To which claims will the limitation period apply

I have found that Ms. Girao cannot pursue her claims where a limitation period has expired. I must now consider to which claims the two-year limitation period attach.

The Insurance Act and the Schedule impose very clear obligations on insurers concerning their interactions with applicants. Where an insurer denies a claim for benefits, the insurer is obligated to provide written notice of its refusal to the applicant. The refusal is the triggering event, and where an insurer fails to give written notice of its refusal, the insurer cannot rely on a limitation period defense when an applicant challenges the denial of benefits through the dispute resolution process.³³ An insurer’s refusal must be clear and unequivocal.³⁴ In Smith v. Co-operators General Insurance Co.,³⁵ Justice Gonthier, writing for the majority, outlined the basic information that must be included in any valid refusal, namely: the right to seek mediation, the right to arbitrate or litigate if mediation fails, that mediation must be attempted before resorting to arbitration or litigation, and the relevant time limits that govern the entire process.³⁶

Where Allstate has not communicated a clear and unequivocal refusal to Ms. Girao on a specific benefit then Allstate may not rely on a limitation period concerning that benefit. In short, the limitation period does not begin to run until Allstate has sent Ms. Girao a valid refusal.

A further concern in determining whether a limitation period applies to a claim for benefits is whether an insurer, after a refusal, has engaged in actions that led an applicant to believe that it is still determining whether to grant a benefit. In Zeppieri and Royal Insurance Company of Canada,³⁷ the arbitrator outlined a two-step process by which to determine whether a limitation period applied in that case. First, one must determine whether and when there was a refusal to pay benefits. Second, one must determine whether an insurer can rely on a limitation period running from the date of the refusal. This second part of the test concerns a determination of whether an insurer has engaged in actions subsequent to the refusal which may have led an applicant to believe that the limitation period had not yet begun to run. Where an insurer has communicated a refusal and engages in actions subsequent to the refusal that led the applicant to believe that it has not yet made a determination about the benefit, the insurer cannot later rely on the refusal as the triggering event for the limitation period.

I will now consider each claim in turn.

Dr. Burns’ invoice − $1,275.00

Ms. Girao sent correspondence to Allstate, dated May 9, 2008, with an attached Application for Expenses, requesting payment of $1,275.00 for Dr. Burns’ report.³⁸ Allstate responded by an Explanation of Benefits, dated June 9, 2008, advising Ms. Girao that Dr. Burns’ report required pre-approval, and further that there is no provision in the Schedule for the payment of medical/ legal reports.³⁹

I find that Allstate communicated a valid refusal to Ms. Girao and the limitation period applies. The last date for Ms. Girao to pursue this claim at arbitration was June 9, 2010. Since Ms. Girao applied for arbitration by application dated January 11, 2010, she has applied before the expiration of the limitation period and is permitted to pursue this claim at arbitration.

Catastrophic Impairment Rebuttal report by Omega Medical Associates − $15,116.77

Ms. Girao sent correspondence to Allstate, dated November 7, 2006, requesting that Allstate pay for this expense.⁴⁰ I have no evidence that Allstate sent an Explanation of Benefits to Ms. Girao addressing this claim. Allstate, in oral submissions, argued that Ms. Girao’s mediation application, dated September 5, 2006, is evidence that this claim for expenses was denied. I find that Ms. Girao applied for this expense. I have no evidence that Allstate properly denied the claim. I therefore find that Allstate did not communicate a valid refusal to Ms. Girao in respect of this claim and the limitation period has not yet begun to run. Ms. Girao is permitted to pursue this claim at arbitration.

Dr. Manohar’s invoice − $400.00

Ms. Girao forwarded Dr. Manohar’s report and invoice to Allstate by correspondence dated May 9, 2008.⁴¹ Ms. Girao forwarded a second request for payment by correspondence dated June 10, 2008.⁴² The second request included a signed and undated Application for Expenses. Allstate responded with an Explanation of Benefits dated July 14, 2008 that advises Ms. Girao that the expense requires pre-approval and that there is no provision for the payment of medical/legal reports under the Schedule.⁴³ Ms. Girao forwarded correspondence to Allstate dated August 26, 2008, responding to Allstate’s July 14, 2008 Explanation of Benefits. In the correspondence she provided a pre-approval form, dated July 21, 2008,⁴⁴ for Dr. Manohar’s report. Allstate responded to Ms. Girao by correspondence dated August 26, 2008, addressing the pre-approval form she submitted. The correspondence affirms that Allstate abides by its previous July 14, 2008 Explanation of Benefits.⁴⁵

I find that Allstate communicated a valid refusal to Ms. Girao on July 14, 2008. The limitation period for this claim expired on July 13, 2010. Ms. Girao filed her application for arbitration on January 11, 2010, which is before the limitation period expired, and is therefore permitted to pursue this claim at arbitration.

Housekeeping from June 20, 2002 to October 3, 2003

I have no submissions from Ms. Girao indicating that she claimed this benefit. However, Allstate put into evidence an Explanation of Benefits dated October 7, 2004⁴⁶ that clearly states that since the accident date is June 19, 2002, the last date Ms. Girao could claim for housekeeping and home maintenance is June 18, 2004. The Explanation of Benefits also outlines Ms. Girao’s rights on denial of the claim. I find that Allstate communicated a valid refusal to Ms. Girao, therefore the limitation period precludes Ms. Girao from pursuing this claim at arbitration beyond October 7, 2006.

Transportation expense to Dr. Mancuso’s office − $3,000.00

Allstate forwarded an Explanation of Benefits to Ms. Girao, dated July 24, 2006, that addresses Ms. Girao’s claim for reimbursement for $3,000.00 in taxicab fare for transportation to Dr. Mancuso’s office.⁴⁷ Allstate attached a letter to the Explanation of Benefits that states “there will be no payment considered for cab fare submissions to and from Dr. Mancuso’s office without copies of the receipts, or confirmation that the expense was incurred. (ie visa statement, bank statement). Should this be provided further consideration to this expense may be given.” Ms. Girao sent further correspondence to Allstate, dated January 27, 2009, requesting $3,000.00 for transportation between Mississauga and Welland.⁴⁸ Ms. Girao made further claims for the $3,000.00 transportation expense and Allstate communicated with her that its position remained unchanged. I have nothing before me suggesting that Ms. Girao ever sent in the information Allstate requested. I find that Allstate’s July 24, 2006 refusal is valid. Ms. Girao would have until July 24, 2008 to dispute Allstate’s denial. She is therefore precluded from pursuing this claim at arbitration.

Dental treatment by Dr. Mancuso − $1,995.00

I received no expense submissions or denials from either Ms. Girao or Allstate dealing with this amount. The claim most resembling this is in the amount of $2,096.06 for a treatment plan by Dr. Mancuso dated March 31, 2004.⁴⁹ Allstate referred to this treatment plan at this preliminary issue hearing in its direct examination of Ms. Vicki Brindley. Allstate addressed this treatment plan by Explanation of Benefits, dated March 31, 2004⁵⁰, in which it stated that the treatment plan had been denied and that Ms. Girao’s file would be forwarded to an assessment centre for comment. Allstate further commented on this treatment plan by Explanation of Benefits dated April 1, 2004⁵¹, in which it stated that the treatment plan was based on a request for approval which had been previously denied and therefore the treatment plan itself was denied.

I find that Allstate denied the $2,096.96 claim for benefits on April 1, 2004. I also find that Allstate did not engage in conduct which may have led Ms. Girao to believe that the treatment plan was still under consideration. I find that the limitation period for this claim for benefits expired on April 1, 2006. Ms. Girao is precluded from pursuing this claim for benefits at arbitration.

Catastrophic determination

Dr. Judith Pilowsky completed a catastrophic determination application on February 10, 2006. Ms. Girao signed the application on February 28, 2006.⁵² Allstate delivered an Explanation of Benefits Payable, dated March 27, 2006,⁵³ to Ms. Girao advising her that they had received Dr. Pilowsky’s application, and that they would have Ms. Girao assessed and communicate their decision to her at a later date. Ms. Girao submitted to an assessment and Allstate communicated an Explanation of Benefits to her, dated July 10, 2006.⁵⁴ Allstate’s Explanation of Benefits clearly details Ms. Girao’s right to dispute Allstate’s determination, as well as her rebuttal rights, her rights to the dispute resolution process, and the two-year time limit. Given Allstate’s communication of a valid refusal, the two-year limitation applies to this claim. The refusal is dated July 10, 2006, therefore Ms. Girao would have until July 10, 2008 to dispute this claim. Ms. Girao refiled her application on January 11, 2010 and is precluded from pursuing this claim at arbitration.

Dental treatments − $40,654.20

Ms. Girao’s counsel, by letter dated April 25, 2006, requested dental treatments, recommended by Dr. Mancuso, for approximately $27,000.00 to $30,000.00.⁵⁵ Ms. Girao’s counsel did not submit a treatment plan concerning this claim for benefits. Allstate delivered an Explanation of Benefits to Ms. Girao, dated July 24, 2006⁵⁶, which addresses future treatment in the amount of $31,580.00. The Explanation of Benefits has attached correspondence that clearly requests that Ms. Girao comply with the Schedule and submit a treatment plan for the treatment request.

Ms. Girao, in her written argument, states that she has sent in a number of requests to Allstate for funding for dental treatment. Nowhere does she mention that she submitted a treatment plan. In her written argument at this preliminary issue hearing, she also submits that she is now claiming a “revised estimate” for “restorative treatment and transportation” in the “range” of $25,000.00. There is no evidence that Ms. Girao submitted a treatment plan for this amount. Ms. Girao’s claims for this benefit remain unclear. The amounts claimed have always been estimates and I have nothing before me to indicate that she has complied with the Schedule and presented treatment plans to Allstate or that she has clearly articulated her request. I find that Allstate denied this claim for benefits on July 24, 2006. Therefore, the limitation period expires on July 24, 2008 and Ms. Girao is precluded from pursuing this claim at arbitration.

Back surgery in Florida − $37,473.00 (US$)

Allstate’s section 32, 38 and 50(a) defenses

In relation to this benefit and Ms. Girao’s claim for $40,654.20 in dental treatments, Allstate also alleges that Ms. Girao failed to comply with the notice requirements set out in section 32 of the Schedule, failed to submit a treatment plan as required by section 38 and therefore the claim is barred by section 50(a) of the Schedule. I will now address these defenses.

Sections 32, 38 and 50(a) all fall under Part IX of the version of the Schedule that was in force at the time of Ms. Girao’s motor vehicle accident. Part IX is the general exclusions section of the Schedule and it outlines circumstances under which insurers are permitted to forfeit benefits, and also provides detailed procedures for claiming medical and rehabilitation benefits.

Section 32 provides that a person who wants to apply for a benefit shall notify the insurer within 30 days after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable thereafter. Section 32 is modified by section 31 and states that a person’s failure to comply with a time limit under Part IX does not disentitle the person to a benefit if the person has a reasonable explanation.

Section 38 directs that before medical and rehabilitation benefit expenses are incurred, the insured person shall submit an application for the benefit to the insurer. The section further directs that the application must include a treatment plan.

Section 50 states that an insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless he or she notified the insurer of the circumstances giving rise to a claim for benefits and submitted an application for the benefit within the times prescribed by Part IX.

The decisions dealing with an applicant’s obligation to notify an insurer establish a number of principles that guide this analysis.⁵⁷ Primarily, where an applicant does not comply with the time limits, the applicant bears the onus in proving that he or she has a reasonable explanation. The explanation must be credible and the test of “reasonable explanation” is both a subjective and objective test that should take into account both personal characteristics and a “reasonable person” standard. The decisions concerning this issue address circumstances where insured individuals did not comply with the time limits in advising their insurers of the fact that they had been involved in motor vehicle accidents.

In respect of the claim for funding for back surgery in Florida, Allstate did not argue that Ms. Girao did not notify it within the time limits that she had been involved in a motor vehicle accident. Neither Allstate nor Ms. Girao addressed the question of whether Ms. Girao’s original application for accident benefits was out of time, and it is not my opinion that an applicant has to notify an insurer of every possible benefit to which she could be entitled within 30 days of a motor vehicle accident. Since neither party presented evidence addressing this issue, I find that Ms. Girao’s application for benefits to Allstate complies with the time limits in Part IX.

Allstate also argues that Ms. Girao did not comply with the Schedule because she did not submit a treatment plan for the back surgery claim, as required by section 38. Where she wishes to have medical or rehabilitation benefit expenses paid, Ms. Girao has an obligation to submit the proposed expenses to Allstate in the form of a treatment plan. Allstate also has an obligation to provide Ms. Girao with information to assist her in applying for benefits.⁵⁸

The background for Ms. Girao’s claim for the back surgery expenses is all contained in Tab 12 of Ms. Girao’s written submissions.⁵⁹

Dr. Malicki first wrote to Allstate by letter dated March 3, 2009 to ask for insurance coverage for Ms. Girao for services at the Bonati Institute in Hudson, Florida. Tina Kinmond from Allstate wrote to Ms. Girao, by letter dated March 27, 2009, advising her that Allstate required a treatment plan for the requested treatments. Ms. Kinmond further stated in her correspondence that she contacted the Bonati Institute and provided them with a treatment plan so that they could complete it. According to Ms. Kinmond, the Bonati Institute stated that it could not complete the treatment plan but would send MRI reports and pre-determination forms. Ms. Kinmond then advised Ms. Girao that an insurer assessment would be necessary but might not be possible without the treatment plan. Ms. Kinmond further asked Ms. Girao to collect all the information related to the treatment and Allstate would determine if it could proceed to an assessment.

Ms. Girao communicated with Allstate, by letter dated May 20, 2009, claiming that she had mailed the requested Bonati Institute information on March 23, 2009, but had not received a response from Allstate. I confirmed from Allstate’s submissions⁶⁰ that the Bonati Institute had forwarded to Allstate an MRI and some very general information about its procedures. Allstate then corresponded with Ms. Girao, by letter dated June 19, 2009, offering her a paper review of the Bonati Institute’s proposed treatment on a without prejudice basis. Allstate also stated in the June 19, 2009 correspondence that it would advise Ms. Girao once it had retained an assessor and secured a date. I have before me no further communication from Allstate to Ms. Girao on this issue.

I find that Ms. Girao did not submit a treatment plan as required by the Schedule. I do not find, however, that Ms. Girao’s failure to provide a treatment plan precludes her from pursuing this claim at arbitration. I appreciate that throughout this particular claim for benefits Allstate attempted to assist Ms. Girao, going so far as to mail treatment plan forms to the service provider in the United States. Nevertheless, Allstate offered to review Ms. Girao’s submissions for this benefit, even though her submission was not in the form of a treatment plan. I find that Allstate did not follow through with its offer to review this claim, leading Ms. Girao to believe that the services were still under consideration. In light of this, Ms. Girao is permitted to pursue this claim at arbitration, where an adjudicator will decide if the claim is reasonable or necessary.

Allstate’s section 32, 38 and 50(a) defenses in relation to Ms. Girao’s claim for $40,654.20 in dental treatment

Having already decided that Ms. Girao is not permitted to pursue this claim because the limitation period has expired, I do not have to consider Allstate’s section 32, 38 and 50(a) defenses. However, in following my reasoning concerning Ms. Girao’s claim for treatment expenses at the Bonati Institute, I find that in this claim for benefits Allstate discharged its obligation in advising Ms. Girao how to apply for the benefit. I also find that Ms. Girao did not submit a treatment plan for this benefit and therefore did not comply with section 38 of the Schedule. For these reasons as well, Ms. Girao would be precluded from pursuing this claim at arbitration.

Acupuncture expenses − $542.59

Ms. Girao submitted correspondence to Allstate, dated September 30, 2008, requesting $500.00 for acupuncture services plus $20.00 out of pocket expenses and $22.59 also paid to an acupuncturist. Ms. Girao included an Application for Expenses and stated that she would forward receipts for the treatment after Allstate forwarded the funds.⁶¹ Allstate sent correspondence to Ms. Girao, dated October 9, 2008, advising her that it would fund the treatment requested in the application for expenses on a without prejudice basis, but since Ms. Girao does not meet the criteria for catastrophic impairment, Allstate would only fund acupuncture up to a maximum of $53.66 per hour. Allstate also directed that any future acupuncture requests be submitted on a treatment plan.⁶²

Ms. Girao again communicated with Allstate by letter dated January 16, 2009, wherein Mr. Mesta, her representative, requests funding for acupuncture and asserts that Allstate has engaged in a plot with medical assessors, that the assessors have “tortured” Ms. Girao and that Allstate’s request for a treatment plan is “just to bother my wife.”⁶³ Allstate responded to Ms. Girao by correspondence dated March 27, 2009, again stating that it requires a treatment plan.⁶⁴

I find that Ms. Girao did not submit a treatment plan for her acupuncture claim for expenses. I find that Allstate agreed to fund a portion of the acupuncture treatment and is obligated to do so. I also find that Allstate discharged its obligations in assisting Ms. Girao in understanding her obligations concerning submitting a treatment plan for this claim. Ms. Girao has not complied with section 38 of the Schedule and is precluded from pursuing at arbitration the portion of this claim that Allstate has not agreed to fund.

Transportation costs incurred in 2005 and 2006 − $127.56

Allstate withdrew its preliminary hearing objection to this claim and accepts that this matter can be considered at the substantive hearing of Ms. Girao’s claims.

Transportation expense − $2,914.28

Allstate withdrew its preliminary hearing objection to this claim and accepts that this matter can be considered at the substantive hearing of Ms. Girao’s claims.

Setting aside a previous settlement

Ms. Girao entered into a settlement with Allstate on February 28, 2006, on issues that were scheduled for an arbitration hearing on March 27, 2006, and now seeks to rescind that settlement. The settlement encompassed all past and future income replacement, reimbursement of Ms. Girao’s outstanding chiropractic expenses, further payment of other chiropractic expenses, payment of expenses at Back to Health, payment of housekeeping benefits up to 104 weeks only, and Ms. Girao’s arbitration costs.

Ms. Girao, in her written submissions, noted that the February 28, 2006 settlement proceeded without the assistance of this Commission. She admits to signing the settlement disclosure notice, but contends that Ms. Vicki Brindley, on behalf of Allstate, signed the settlement disclosure notice on March 15, 2006, 17 days after the parties made the agreement. Ms. Brindley’s signature, Ms. Girao claims, was placed on the document beyond the two day cooling off period mandated by the Settlement Regulation. She further states that Allstate’s counsel, after Ms. Brindley had signed the settlement disclosure notice, communicated with this Commission to advise that the parties had entered into a settlement.

Around the time the settlement discussions took place, Ms. Girao states that Dr. Judith Pilowsky completed an application for catastrophic determination on Ms. Girao’s behalf. Ms. Girao states that Allstate arranged for catastrophic impairment assessments to take place only after she had entered into the settlement. It is Ms. Girao’s contention that the amount of the settlement was unfair to her, and further that it was in the best economic interests of Allstate, considering that Allstate was aware of the fact that her condition was deteriorating. Ms. Girao asserts that upon settlement she should have received $61,332.25 more in income replacement benefits and $3,600.00 more in housekeeping benefits because she is catastrophically impaired. It also appears that Ms. Girao contends that she did not have the capacity to enter into the settlement.

Regulation 664 under the Insurance Act codifies an insured person’s rights when entering into settlement agreements with insurers. Regulation 664 recognizes the inherent power imbalance between insured persons and insurers and attempts to address this by mandating that insurers provide very specific information to insured persons who agree to settle disputes.

Section 9.1 of the Regulation mandates that the insurer shall give the insured person a written disclosure notice, signed by the insurer, with respect to the settlement. The insurer must advise the insured person that she may, within two business days after the later of the day she signs the disclosure notice and the day she signs the release, rescind the settlement by delivering a written notice to the office of the insurer or its representative and returning any money received as consideration for the settlement.

Both Allstate and Ms. Girao put into evidence the release and settlement documents that Ms. Girao signed on February 28, 2006.⁶⁵ I find that the settlement disclosure notice that Ms. Girao and Allstate signed conforms to the regulatory requirements. It clearly states that she has two business days within which to change her mind about the settlement. The notice also clearly states the benefits Allstate intended to pay and for which periods. The notice indicates that Ms. Brindley did in fact sign it on March 15, 2006. Attached to the notice is the full and final release that evidences that Ms. Girao and Allstate engaged in settlement negotiations. Ms. Girao signed the release, as did Ivan Guzman, an interpreter. It is significant that the release and Ms. Girao’s own written submissions indicate that at the time Ms. Girao signed the full and final release and the settlement disclosure notice, Ms. Heidi Brown, counsel at the law firm Bogoroch & Associates, was representing her.

Under ordinary circumstances individuals are held to be bound to the agreements into which they enter. Arbitrator Manji in Giles and State Farm Mutual Automobile Insurance Company⁶⁶ made the following observations at page 12:

Where a document such as Exhibit 1 [a release] is signed, it meets a prima facie assumption that an agreement exists and that the document contains its terms. A person who signs a document is ordinarily held to have manifested agreement to its contents. This is not to say that in every case a person is bound by the document he or she has signed. He or she may be relieved on the grounds of duress, unconscionability, mistake, or other vitiating factor.

It is not an arbitrator’s role to go behind a settlement where the parties were competent. In this case, Ms. Girao alleges a number of things. She claims that Allstate’s representative, Ms. Brindley, signed the form after she did. I assume Ms. Girao’s position is that the timing of Ms. Brindley’s signature negates the validity of the form.

I find that even though Ms. Brindley signed the settlement disclosure notice after Ms. Girao, the notice remains valid. The Settlement Regulation obligates the insurer to provide a signed disclosure notice to the insured, but is silent on when the insurer is to sign the form. In Rose and CGU Insurance Company of Canada⁶⁷, the arbitrator dealt with an issue where there was a delay between when the settlement was negotiated and when the insurer forwarded the notice and disclosure notice to the insured. In the Rose⁶⁸ decision, the arbitrator found that the parties made an oral agreement when the insurer made an offer and the insured accepted. The settlement disclosure notice was sent to the insured over one month later. The arbitrator found that the 48-hour cooling off period started running when the insured received the disclosure notice.

In this case, I find that Ms. Girao entered into an agreement with Allstate on February 28, 2006. This is evidenced by the release and settlement disclosure notice that she signed. I find that Allstate complied with the Settlement Regulation when it forwarded a signed settlement disclosure notice to Ms. Girao on March 15, 2006, and that the cooling off period began to run on that date. Ms. Girao had until March 17, 2006 to rescind the agreement. Ms. Girao was represented at the time she entered into the agreement, and her counsel witnessed the documents she signed. Ms. Girao had the benefit of legal advice and could have rescinded the document within two days of March 15, 2006, which was the date Allstate complied with the Regulation.

Ms. Girao also asserts that the February 28, 2006 settlement was in Allstate’s economic interests because she is catastrophically impaired and she did not have capacity to enter the agreement. Ms. Girao is in effect claiming that vitiating factors should render the agreement invalid.

The vitiating factor Ms. Girao claims is not mistake or duress, but rather unconscionability. Ms. Girao presented no evidence to substantiate her claim that the agreement she entered into with Allstate is unconscionable. She states that Allstate should have paid her more because she is catastrophically impaired. In fact, the agreement between Allstate and Ms. Girao does not impact on her rights should she ever be determined to be catastrophically impaired. I find that the agreement between Ms. Girao and Allstate is not unconscionable, given that Ms. Girao presented no evidence to substantiate her claim.

Ms. Girao alleges that she did not have capacity to enter into an agreement with Allstate. She notes this in one line in her written submissions. She presented no evidence about her capacity at this preliminary hearing. She has been represented throughout her arbitration proceedings at this Commission either by a law firm or her husband. The pre-hearing arbitrator, in his letter in respect of this hearing, notes that Ms. Girao did not raise capacity as an issue. The arbitrator who made the decision to allow Ms. Girao to withdraw her arbitration inquired into Ms. Girao’s husband’s authority to represent her, and found that he had the authority. I have nothing before me to indicate that Ms. Girao does not have capacity or that she has not been properly represented in proceedings before this Commission.

Ms. Girao has also indicated that she does not have the funds from the settlement to return to Allstate. Where an insured person seeks to rescind an agreement, the Settlement Regulation requires that the insured person return the funds. Ms. Girao, in this case, does not appear to wish to rescind the agreement, but rather to amend it so that Allstate pay her more. I find that the Settlement Regulation makes no provision for renegotiating settlements, but only to rescind them. I have no authority to order a higher amount be paid out under the settlement. I find that where Ms. Girao cannot or will not return the funds, she is precluded from rescinding the settlement.

I find that Ms. Girao entered into an agreement with and received a valid settlement disclosure notice from Allsate. I further find that Ms. Giaro has not proved that the agreement is unconscionable, nor do I have evidence that she was not properly represented or did not have capacity to enter into the agreement. Ms. Girao is therefore precluded from rescinding the agreement with Allstate.

Interim Order for reports

Ms. Girao seeks an interim order pursuant to section 279(4.1) of the Insurance Act for payment of the cost to update the following reports.

a. Past and future income and pension loss report

b. Future care needs and cost analysis report

c. Present value of future care needs

Ms. Girao presented no evidence on what these reports are or why she needs them. Therefore, I decline to exercise my discretion to order that Allstate pay for these reports.

Relief from forfeiture

Ms. Girao also requested relief from forfeiture pursuant to section 129 of the Insurance Act. Relief from forfeiture is an equitable remedy reserved to the courts and I do not have the jurisdiction to grant it.

EXPENSES:

The parties did not make submissions on expenses and I leave that issue to the arbitrator hearing this matter on its merits.

January 14, 2011

Lloyd (J.R.) Richards Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 9

FSCO A07-000288

BETWEEN:

YOLANDA GIRAO Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

ARBITRATION ORDER

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

1. Ms. Girao is permitted to pursue at arbitration her claim for payment of a report by Dr. Burns in the amount of $1,275.00.

2. Ms. Girao is permitted to pursue at arbitration her claim for payment of a Catastrophic Determination rebuttal report, completed by Omega Medical Associates, in the amount of $15,116.77.

3. Ms. Girao is permitted to pursue at arbitration her claim for payment of a report by Dr. Manohar in the amount of $400.00.

4. Ms. Girao is precluded from pursuing at arbitration her claim for payments of housekeeping and home maintenance services, from June 20, 2002 to October 3, 2003.

5. Ms. Girao is precluded from proceeding to arbitration on the issue of whether she is entitled to expenses for transportation to Dr. Mancuso’s office in the amount of $3,000.00.

6. Ms. Girao is precluded from pursuing at arbitration her claim for the cost of dental treatment provided by Dr. Mancuso, in the amount of $1,995.03.

7. Ms. Girao is precluded from proceeding to arbitration on the issue of whether she suffered a catastrophic impairment within the meaning of sections 2(1.1)(f) and (g) of the Schedule as a result of the accident.

8. Ms. Girao is precluded from pursuing at arbitration her claim for the cost of dental treatments in the amount of $40,654.20.

9. Ms. Girao is permitted to pursue her claim at arbitration for proposed back surgery in Florida in the amount of $37,473.00 (US $).

10. Ms. Girao is precluded from pursuing at arbitration the portion of her claim for acupuncture expenses in the amount of $542.59 that Allstate has not agreed to fund.

11. Allstate withdrew its preliminary hearing objection to Ms. Girao’s claim for expenses in the amount of $127.56 for transportation costs incurred in 2005 and 2006 and accepts that this matter can be considered at the substantive hearing of Ms. Girao’s claims.

12. Allstate withdrew its preliminary hearing objection to Ms. Girao’s claim for entitlement to payment for transportation expenses in the amount of $2,914.28 and accepts that this matter can be considered at the substantive hearing of Ms. Girao’s claims.

13. Ms. Girao is precluded from rescinding a settlement agreement with Allstate on the grounds that it was not fair.

14. I decline to exercise my discretion to order that Allstate pay for the following reports:

a. Past and future income and pension loss report

b. Future care needs and cost analysis report

c. Present value of future care needs

15. I do not have the jurisdiction to grant Ms. Girao’s request for relief from forfeiture.

January 14, 2011

Lloyd (J.R.) Richards Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(OIC A006369, February 13, 1996)
3. 3R.S.O.1990, c. S. 22
4. 4Bilusack, p.25
5. 5Wheeler v. CGU Insurance Co. (April 6, 2005), 2005 CanLII 10906 (ON SC), [2005] O.J. No 1364; Adam v. Insurance Corporation of B.C. 1985 CanLII 584 (B.C.C.A); Hunt and Buzilla v. The Mutual Life Assurance Company of Canada and Toronto Dominion Life Insurance Company, 2004 SKQB 89; Neis v. Yancey, 1999 ABCA 272; Warford v. Zyweck, 2002 BCCA 221
6. 6Ex. 1
7. 7Ex. 6
8. 8Ex. 7
9. 9Ex. 8
10. 10Ex.9
11. 11Ex. 10
12. 12Ex. 11
13. 13Ex.12
14. 14Ex. 13
15. 15Ex. 14
16. 16Ex. 18
17. 17Ex. 17
18. 18Ex. 15
19. 19Ex. 19
20. 20Ex. 20
21. 21Ex. 21
22. 22Ex. 22
23. 23Ex. 24
24. 24Ex. 25
25. 25Ex. 26
26. 26Ex. 27
27. 27Ex. 29
28. 28Ex. 30
29. 29Ex. 31
30. 30(OIC A006369, February 13, 1996)
31. 31West and Aviva Canada Inc. (FSCO A08-000170, December 18, 2008)
32. 32(2001), 2001 CanLII 28019 (ON SC), 56 O.R. (3d) 658 (Master)
33. 33State Farm Mutual Automobile Insurance Company and Kirkham (OIC P96-00069, January 27, 1997)
34. 34Punwassie and State Farm Mutual Automobile Insurance Company (FSCO A08-001332, April 14, 2009)
35. 352002 SCC 30, [2002] 2 S.C.R. 129
36. 36Ibid, p. 8
37. 37(OIC A-005237, February 17, 1994 at p. 8), conf’d on appeal (OIC P-005237, December 22, 1994)
38. 38Ex. 71
39. 39Ex. 72
40. 40Ex. 44
41. 41Ex. 66
42. 42Ex. 67
43. 43Ex. 68
44. 44Ex. 69
45. 45Ex. 70
46. 46Ex. 34
47. 47Ex. 41
48. 48Ex. 42
49. 49Ex. 36
50. 50Ex. 37
51. 51Ex. 39
52. 52Ex. 1
53. 53Ex. 2
54. 54Ex. 5
55. 55Ex. 40
56. 56Ex. 41
57. 57See: Coseco Insurance and Novakovic (FSCO P05-00016, June 22, 2006) appeal; Cervo v. State Farm Mutual Automobile Insurance Co., 2006 CanLII 37119 (ON CA), [2006] O.J. No. 4378 (C.A.)
58. 58Beaman and Guarantee Company of North America (FSCO A00-001016, May 1, 2001)
59. 59Ex. 75
60. 60Ex. B, Tab 117 A-E
61. 61Ex. 50
62. 62Ex. 51
63. 63Ex. 46
64. 64Ex. 43
65. 65Ex. 35
66. 66(OIC A-008560, September 28, 1995)
67. 67(FSCO A01-000988, June 26, 2002) (The arbitrator in the case made her findings based on a previous version of the Settlement Regulation that did not require that the insurer sign the disclosure notice)
68. 68Ibid pp. 26-31