Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 167
FSCO A12-004348
BETWEEN:
T. S.
Applicant
and
INTACT INSURANCE COMPANY
Insurer
DECISION ON A MOTION FOR INTERIM BENEFITS
Before: Anne Sone
Heard: September 21, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Robert Ben for T. S.
Brian Smith for Intact Insurance Company
Issues:
The Applicant, T. S., was injured in a motor vehicle accident on October 31, 2011. He applied for and received statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and T. S. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. His Application for Arbitration claims benefits for attendant care, medical treatment and rehabilitation, as well as interest, expenses and a special award.
T. S. and INTACT
FSCO A12-004348
Prior to a pre-hearing taking place in this case, T. S. brought a motion, pursuant to section 67 of the Dispute Resolution Practice Code — Fourth Edition, for interim benefits to be paid to him pending the resolution of his dispute with Intact.
Issues:
The issues on this motion are:
- Is T. S. entitled to the following interim benefits pursuant to section 279(4.1) of the Insurance Act?
Attendant Care:
Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service2 for T. S.’s use
Past attendant care benefits at the rate of $4,923.88 per month, less amounts paid by Intact
Housing3:
$3,995 for a treatment plan dated July 5, 2012, prepared by Ellen Pellett, occupational therapist, for housing search services for T. S.
$15,600 for a treatment plan dated July 12, 2012, prepared by Ellen Pellett, occupational therapist, for a one-year lease of a suitable apartment for T. S.4
Assistive Devices:
Cell phone and cell phone service for T. S.
Reasonable amount for furnishing an apartment for T. S.
T. S. also claims interest on any amounts owing and his expenses incurred on this motion.
Result:
- Intact agrees to pay T. S. interim benefits as set out below.
Attendant Care:
- Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service for T. S.’s use
Housing:
$3,995 for a treatment plan dated July 5, 2012, prepared by Ellen Pellett, occupational therapist, for housing search services for T. S.
$15,600 for a treatment plan dated July 12, 2012, prepared by Ellen Pellett, occupational therapist, for a one-year lease of a suitable apartment for T. S.
Assistive Devices:
Cell phone and cell phone service for T. S.
Reasonable amount for furnishing an apartment for T. S., at an agreed upon cost.
I decline to exercise my discretion to order interim benefits for the past attendant care benefit.
The issue of expenses may now be spoken to.
EVIDENCE AND ANALYSIS:
Background:
On October 31, 2011, T. S., while a pedestrian, was struck by a dump truck, and incurred, among other things, a serious brain injury and numerous fractures. T. S. was 42 years old at the time, and maintains that he continues to suffer from physical, cognitive and emotional impairments as a result of the accident.
It is not disputed that he had mental health and financial issues prior to the accident. Intact submits that there was a suicide note, and that this accident was a suicide attempt.
Matters upon which the Parties have Agreed:
During the interim benefits hearing (and pending the outcome of the main hearing), Intact agreed to provide the following interim benefits to T. S.:
Attendant Care:
- Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service for T. S.’s use
Housing:
$3,995 for a treatment plan dated July 5, 2012, prepared by Ellen Pellett, occupational therapist, for housing search services for T. S.
$15,600 for a treatment plan dated July 12, 2012, prepared by Ellen Pellett, occupational therapist, for a one-year lease of a suitable apartment for T. S.
Assistive Devices:
Cell phone and cell phone service for T. S.
Reasonable amount for furnishing an apartment for T. S., at an agreed upon cost.5
Issue which remains Outstanding:
The parties confirmed that past attendant care benefits at the rate of $4,923.88 per month, 6 less amounts paid by Intact, were still in dispute in the interim benefits hearing.
Statutory Framework:
Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.
Case law:
Although arbitrators have the discretionary authority to order interim benefits, these awards are not made lightly. As Senior Arbitrator Rotter stated in Cripps and AXA Insurance (Canada)7:
It is settled law that interim benefits are not ordered as a matter of course. Normally, arbitral orders are made only after the evidence and positions of the parties have been fully and thoroughly canvassed at an arbitration hearing. However, in certain cases, interim benefits can be ordered before a full hearing on the merits of the claim. The evidence considered on interim applications is usually less than complete. The arbitrator hearing the motion for interim benefits is required to deal with it in a summary fashion, and to make an order as expeditiously as possible. That order may be reversed or overturned after a full hearing of the matter. [emphasis in original]
She also stated that “[i]n determining whether interim benefits should be awarded, two major criteria have been identified:
(1) the merits of the case for entitlement
(2) the existence of an element of necessity or urgency
The interpretation of these criteria has evolved over time, especially regarding the merits of the case for entitlement.
In Nguyen and State Farm Mutual Automobile Insurance Company, 8 Arbitrator Wilson extensively reviewed the case law regarding interim benefits motions, as distinguished from interim injunctions. He considered whether or not the applicant had demonstrated a compelling case, and asserted that the approach must be flexible.
In terms of the existence of an element of necessity or urgency, he commented on providing a “fair and adequate income stream” to accident victims. At page 11, he states that:
If the hearing is some time distant, and the need is present, an interim order may well be appropriate. There is no evidence however that it [an element of necessity or urgency] should be a rigid pre-condition to an order.
In other words, it is a factor to be considered when deciding these sorts of cases.
In Ananthamoorthy and TD Home and Auto Insurance Company,9 Arbitrator Feldman explored the different “tests” and schools of thought that have developed at the Commission. After reviewing the criteria to consider on these motions, he concluded that:
… arbitrators are beginning to return to a consideration of whether or not the applicant has demonstrated a compelling reason or reasons for the granting of interim benefits. The reasons may vary from case to case and the approach adopted must be flexible.
Accordingly, I must consider whether there is a compelling case (in terms of the merits, urgency or other factors), to exercise my discretion to order interim benefits before a full hearing on the merits of this application.
Analysis and Conclusion regarding Past Attendant Care:
Applicant’s Submissions:
T. S. submits that Intact’s occupational therapist initially assessed T. S.’s attendant care needs at $330.31 per month.
T. S.’s occupational therapist assessed his attendant care needs at $4,923.88 per month, provided a cell telephone and service were funded.
On September 20, 2012, T. S. received an insurer’s examination report from Judy Phillips, occupational therapist. Ms. Phillips did not complete a Form 1, on the basis that she was reserving determining the need for supervisory care until a psychiatric assessment of T. S. was provided to her. She did assess in all other areas, and her evaluation of T. S.’s attendant care needs totalled approximately $3,643.02 per month.
Even without a psychiatric assessment, Intact’s own report indicates much more than the $330.31 per month it originally paid. T. S. submits that at a minimum, the past obligation is that amount. As indicated in Zurich North America Canada and Stargratt,10 even if an expense is not incurred, the insurer should be obligated to pay it.
Insurer’s Submissions:
Intact submits that there is no evidence that anyone is waiting to be paid. Unless T. S. can demonstrate urgency, past attendant care benefits are not the appropriate subject of an interim benefits motion in this case.
Conclusion:
As indicated above, the parties resolved amongst themselves the issues relating to ongoing attendant care, housing and assistive devices.
With regards to the past attendant care benefit, I do not condone Intact’s failure to pay an attendant care benefit that its own occupational therapist recommended. However, there is no indication that T. S. has had any attendant care since the accident.11 There is also no evidence as to why this occurred. (He has submitted that his mother will be relocating from Alberta to provide future attendant care.)
Given the summary nature of the motion, the merits of T. S.’s case for a past attendant care benefit are not clear to me. There are too many pieces missing. I find that T. S. has not satisfied the onus upon him to demonstrate a compelling case for payment of a past attendant care benefit, pending the hearing, as required on an interim benefits motion.
In addition, I do not find any factor of urgency, when there is no one waiting to be paid. This benefit can be more appropriately dealt with in the context of an arbitration hearing with a full evidentiary record.
EXPENSES:
The question of expenses was deferred until all other issues in this motion were decided. Therefore, the issue of T. S.’s expenses of this motion may now be addressed pursuant to a timetable to be determined, if the parties cannot agree amongst themselves.
Anne Sone
December 24, 2012
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 167
FSCO A12-004348
BETWEEN:
T. S.
Applicant
and
INTACT INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Intact shall pay T. S. the interim benefits it has agreed to pay, which are as follows:
Attendant Care:
- Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service for T. S.’s use
Housing:
$3,995 for a treatment plan dated July 5, 2012, prepared by Ellen Pellett, occupational therapist, for housing search services for T. S.
$15,600 for a treatment plan dated July 12, 2012, prepared by Ellen Pellett, occupational therapist, for a one-year lease of a suitable apartment for T. S.
Assistive Devices:
Cell phone and cell phone service for T. S.
Reasonable amount for furnishing an apartment for T. S., at an agreed upon cost.
Anne Sone
December 24, 2012
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Exact amount depends on when T. S. was provided with a cell phone.
- In a treatment plan dated July 4, 2012, Ellen Pellett, occupational therapist, sought payment of $7,345 for a Home Accessibility Report dated August 17, 2012, prepared by Adapt-Able. It evaluated T. S.’s prior residence, and proposed modifications. This is an item that is still in dispute in the main hearing in this matter. It is not being claimed as an interim benefit.
- These two housing treatment plans were requested to provide suitable and stable housing to T. S. In July 2012, Dr. Ladd, T. S.’s treating psychiatrist, confirmed that this was important to T. S.’s rehabilitation and to minimize the risk of self-harm or suicide.
- If the parties cannot agree upon this cost, they agreed to return to the Commission for a further ruling on this issue, originally scheduled for October 19, 2012. In a letter dated October 18, 2012 from Mr. Ben, (counsel for T. S.), to the Commission, he advised that the parties are continuing to work toward finalizing an agreement. If necessary, they will request a further hearing.
- The exact amount depends on when Intact provided T. S. with a cell phone.
- (OIC A-013360, August 8, 1997), referred to in Champaigne and Co-operators General Insurance (FSCO A03-001344, September 3, 2004).
- (FSCO A05-000305, December 22, 2005).
- (FSCO A06-001533, January 17, 2007).
- (FSCO P01-00045, March 31, 2003).
- This differs from the fact situation in Stargratt, above, where the applicant had received help, but had not paid for it. In addition, Intact has agreed to provide an ongoing attendant care benefit to T. S.