Neutral Citation: 2013 ONFSCDRS 122 FSCO A12-001233

BETWEEN:

R. J. Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Arbitrator John Wilson Heard: May 30, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Samia Alam for Ms. J. Anna-Marie Musson and Lara Fitzgerald for Dominion of Canada General Insurance Company

Issues:

The Applicant, R.J., was injured in a motor vehicle accident on July 23, 2007. She applied for statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹

While there was no dispute that Ms. J. was covered by the provisions of a motor vehicle insurance policy issued by Dominion prior to the accident, other disputes arose over the ongoing payment of benefits. More particularly, the question of whether Ms. J. met the criteria for catastrophic impairment became an important issue.

The parties were unable to resolve their disputes through mediation, and Ms. J. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Ms. J. has brought a motion, pursuant to section 67 of the Dispute Resolution Practice Code − Fourth Edition, for interim benefits to be paid to her pending the resolution of her dispute with Dominion.

The parties were advised of the outcome of the May 30th motion hearing on June 6 and July 12, 2013.

The benefits in question are:

The payment of the cost of a catastrophic assessment rebuttal report.
The payment of arrears of IRBs and the ongoing payment of that benefit pending a final arbitration decision.
The payment of a special award on the basis that Dominion unreasonably withheld the above benefits.

The issue on this motion is:

Is Ms. J. entitled to the above interim benefits pursuant to section 279(4.1) of the Insurance Act?

Ms. J. also claims interest on any amounts owing and her expenses incurred on this motion.

Result:

Dominion shall pay Ms. J. forthwith the cost of catastrophic assessment rebuttal reports totalling $10,500.00.
Dominion shall pay $374.16 per week interim benefit from March 18, 2013 on an ongoing basis, until the final disposition of this matter.

EVIDENCE AND ANALYSIS:

Interim Orders:

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

As counsel identified at the hearing, there is a range of opinion amongst arbitrators as to the grounds for the granting of interim benefits in the arbitration process. As Arbitrator Killoran stated in Henry and Aviva Canada Inc.²:

Many considerations have been relied on by arbitrators to determine entitlement to interim benefits. Principally, arbitrators have applied the prima facie test and that of urgency/necessity. … A prima facie case is one in which a party provides evidence, which if unanswered and believed, is sufficient to render a reasonable conclusion in favour of entitlement. In Nguyen and State Farm Mutual Automobile Insurance Company of Canada, Arbitrator Wilson embraced a “look at the whole case” approach to awarding interim benefits.

The “holistic” or “look at the whole case” approach to the award of interim benefits is not novel and owes much to judicial analysis of the criteria for mandatory relief, much of which remains relevant. In Hubbard v. Vosper,³ Lord Denning observed:

the right course for a judge is to look at the whole case. He must have regard not only for the strength of the claim but also the strength of the defence, and then decide what is best to be done ... the remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.

An interim order is discretionary, made judicially on the evidence on motion of one of the parties. Where the claim was frivolous and had no chance of success, no order would be made.

Interim benefits must be examined in the context of the social policy behind the accident benefit system, and whether a grant of interim benefits will favour those goals.

Eberhard J., in Gill v. Zurich⁴, made the following comments on the purposes of the statutory accident benefit scheme:

I adopt the statement of purpose articulated by Arbitrator Mackintosh at page 12 in Edgar v. Wellington Insurance Co. [1994] O.I.C.D. No. 34 File A-005441 that SABS is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a “fair and adequate income stream to those who are injured and disabled from work”. The victim is to receive an approximation of wages, and not be compensated more or less.

In Smith v. Co-operators General Insurance Co.⁵, Gonthier J. made the following comment which provides the legal context for interim orders:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.

In Nguyen and State Farm Mutual Automobile Insurance Company of Canada,⁶ I considered as potential criteria the balance of the evidence, potential success, urgency and need and the failure to respect the provisions of the Schedule, inter alia, while viewing no single element of the above as a specific pre-condition, the absence of which will necessarily lead to the rejection of an interim application for benefits. I see no reason to alter this pragmatic approach in this matter.

Background:

The underlying facts in this matter are not seriously in dispute. What conclusion may be drawn from those facts however remains to be decided.

Ms. J. operated a “Crabby Joe’s” restaurant franchise prior to the July 23, 2007 motor vehicle accident.

In that accident, Ms. J., while driving her son in Mississauga, accelerated rather than braking at a stop sign, hitting the concrete wall of a garage.

Due to her injuries, she was unable to return to her pre-accident work and was paid income replacement benefits by Dominion at the rate of $374.16 per week on the basis of her employment in the restaurant business.

Apparently because Ms. J. was unable to return to her pre-accident employment the restaurant business failed, ultimately ending up in bankruptcy.

In addition to the physical injuries arising from the motor vehicle accident, Ms. J. claims to have suffered serious, disabling psychological problems as a result of the collision. These include pain, mood changes, serious depression, and substance abuse.

The substance abuse consisted of addiction to alcohol and oxycontin, and necessitated admissions into Homewood among other treatment facilities.

The gravity of these problems was underlined by at least three suicide attempts. The problems also engendered conflict within her family, and the involvement of the CAS and the police.

It is her family’s opinion that Ms. J. must be supervised constantly to avoid a relapse into binge drinking, abuse of medication and possible suicide attempts.

Dominion paid benefits to Ms. J. up to the two-year mark, at which point non-catastrophic housekeeping and attendant care benefits cease to be available. It is also the point in an income replacement benefit claim when the test changes from an ability to performs one’s own employment to an ability to perform any employment to which an insured may be suited by reason of education, training and experience.

The income replacement benefits which form part of the request for interim benefits were cut off on February 25, 2012, by Dominion, apparently on the basis that she did not satisfy the post 104- week test for those benefits. In the opinion of Dominion, Ms. J. would be able to undertake employment to which she would be reasonably suited by reason of education, training or experience. Ms. J. disagrees with that assessment.

Ms. J. has also requested that she be designated as catastrophically impaired, opening up a wider range and duration of benefits to her.

Drs. Hines, Jaroszynski and Ms. Nicastro-Ribbons, the same assessors who later evaluated Ms. J. on behalf of the Insurer for the determination of the income replacement benefit entitlement, also completed the catastrophic impairment assessments.

The assessment team of a psychiatrist, neurologist, an orthopod and an occupational therapist found that Ms. J. had a 0 per cent whole person impairment rating for muscular impairment and a 5-8 per cent impairment whole person impairment rating due to neurological impairment under criterion “f” of the catastrophic provisions.

Under the category “g” criterion for catastrophic impairment, Dr. Hines noted Ms. J. as being substance abuse free as of August 23, 2010 and that her major depressive episode (mild to moderate) and her alcohol abuse were both in remission, resulting in a GAF (Global Assessment of Functioning) score of 68.

No impairment was found in activities of daily living (concentration and pace), and only mild impairment in the categories of social functioning and adaptation, giving an 8 per cent criterion “g” rating and a combined “f” and “g” whole person rating of 13 per cent. In either case, Ms. J., according to the assessors, fell well under the threshold of catastrophic impairment.

Ms. J. has particularly taken exception to Dr. Hines’ role in the assessment process, claiming that his psychiatric assessment was flawed and that he overlooked key elements of potential evidence. Dr. Hines is also said to have made assumptions about Ms. J.’s recovery that stood in stark contrast to the opinions of her treating health professionals.

In other words, Dr. Hines essentially missed the boat on a woman who had severely disabling depressive symptoms to the degree that she became a suicide risk. She could not on any reasonable examination of her treatment records be said to be in remission, either with regard to her substance abuse or her depression.

Dr. Ahmed, Ms. J.’s treating psychiatrist, touched on one of the reasons that Dr. Hines may have misunderstood Ms. J.’s condition when he stated that “honest subjective information from the patient is necessary for correct diagnosis.” Indeed, Ms. J. may well not have been the first psychiatric patient to minimize her condition when speaking to assessors.

I accept Ms. J.’s submissions that Dr. Ahmed, her treating psychiatrist, was better placed to evaluate Ms. J.’s progress or lack of progress over a lengthy period of time, and I would accept that his view of Ms. J.’s psychological state will carry more weight than any brief snapshot by a non-treating assessor, even without the alleged misapprehension by Dr. Hines of the underlying conditions.

Rebuttal Reports

Rebuttal reports are merely the formal title given to reports that respond to and critique other expert reports. Being formally noted by section 42.1(3) of the earlier schedule, they were eligible for payment by the insurer under the Schedule.

Although potentially of great utility to the claims process, they were also said to be much abused by assessment facilities and, to a lesser degree, claimants who saw in them a means of expanding the size of an accident benefits claim and presumably turning a tidy profit for their makers. Consequently, the current version of the Schedule has removed the right for compensation for rebuttal reports.

Rebuttal reports became important with the paring back of the DACs and other consumer protection inventions that had been intended to provide some degree of objectivity to the assessment and determination process.

With the demise of DACs, the final determination as to entitlement was made by the Insurer, presumably on the advice and with the assistance of its own assessors. Most of these assessors were drawn from an informal roster of professionals who gave their professional opinions to litigants. Not a few of these were characterized as “hired guns” by those disagreeing with an assessor’s opinion.

Thus, when an insurer’s expert conducted an insurer’s examination on a claimant, it made sense that the claimant could commission his or her own report to address the shortcomings, if any, of the insurer’s experts’ analysis.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care.

Given Dr. Hines’ apparent misinformation about remission of symptoms, GAF score and psychosocial issues, the importance of a credible rebuttal is critical to Ms. J..

Having a rebuttal report available can assist an insurer in making a fair determination and, to an arbitrator hearing this matter, should streamline the process by drawing together and placing in a medical context the alleged shortcomings of the insurer’s medical legal reports.

In short, a rebuttal report in Ms. J.’s case would be not only reasonable but would facilitate the claims process. Consequently, if there is a basis to fund the report, it should be funded.

Retroactivity of changes to the Insurance Contract:

Ms. J. believes she is entitled to be indemnified for the cost of a rebuttal report. It is her position that at the time the insurance policy in effect at the time of the accident was written, Dominion undertook to pay such a benefit, since it was a term of that policy.⁷

While there is no disagreement that, by regulation, Cabinet through the Lieutenant Governor-in-Council has now changed the Statutory Accident Benefits Schedule to eliminate the provision for the funding of rebuttal reports, it is Ms. J.’s position that this amendment did not retroactively amend her contract of insurance, under which her accident benefits claim is made. In her mind, her insurance contract with Dominion, in force at the time of the accident, included provisions to reimburse her for the cost of a rebuttal report. She should therefore still be entitled to reimbursement under that contract. In other words, the terms of her insurance contract should not be retroactively amended by later revisions to the Schedule.

The interaction between private contractual rights and public legislation has often been troubled. In many different areas, legislation has been passed that inadvertently or intentionally interfered with existing commercial rights.

As early as 1933, the Supreme Court set out the rule that a statute should not be given a construction that would impair existing rights as regards persons or property unless the language in which it is couched necessitates such an interpretation.⁸

Much later, Dickson J. in Gustavson⁹, stated that:

... it (the section) does not reach into the past and declare that the law or the rights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date.

Ruth Sullivan¹⁰ also suggests that even procedural statutes are not to be given retroactive effect:

Where a provision is found to be purely procedural, it is given immediate and general effect. It is not given retroactive effect. The presumption against the retroactive application of legislation applies to procedural provisions as it does to all legislation, without exception. Thus, any attempt to apply a procedural provision to a stage in a proceeding that was completed before the provision came into force would be refused, subject to a legislative direction to the contrary.

While the dichotomy between procedural and substantive can give rise to long debates, it is important to note that the payment of an indemnity is at the heart of any insurance contract. The provision authorizing the payment of rebuttal reports is one that provides an indemnity to an insured for an expense incurred in obtaining benefits.

In the case of rebuttal reports, Ontario Regulation 403/96 provides at section 1.1 that “the benefits set out in this Regulation shall be provided under every contract evidenced by a motor vehicle liability policy in respect of accidents that occur on or after November 1, 1996 and September 1, 2010.” The accident in question took place on July 23, 2007.

The Regulation however goes on to state that at section 1.3 that “no amount referred to in the Regulation shall be paid after August 31, 2010.” This claim for Rebuttal Reports was brought forward on April 19, 2011.

Section 3(1.5) of the Regulation then goes on to specifically list a series of actions and states that “none of the following actions shall be taken on or after September 1, 2010 in respect of an accident that occurred on or after November 1, 1996 and before September 1, 2010.” The extensive list makes no reference to a rebuttal report.

The Regulation then sets out a transitional procedure at section 3(1)(1.4) where analogous claims would be paid “under the New Regulation.”

In Federico¹¹, Director’s Delegate Blackman dealt with the same transition provisions between the Old and the New Regulations and found that they “are at first glance, contradictory.” Relying on Dikranian¹², the Director’s Delegate noted that the contract of insurance “created rights and obligations as soon as the contract was formed.”¹³

In other words, even though nothing accrued until an amount became payable under the Schedule, the right to interest on overdue amounts was not some mere procedural right but substantive in nature and embodied in the insurance contract itself.

Delegate Blackman went on to conclude that “There is ambiguity and conflict in the transitional provisions in the Old Regulation and the New Regulation” and that “the Respondent, certainly as of August 13, 2010, had tangible concrete, vested and materialized rights to interest” which was a “crystallized private contractual right.”

Likewise, a right to be compensated for a rebuttal report is a substantive contractual right notwithstanding the submission of Dominion that:

A right that is potentially exercised in order to determine entitlement to another right is not a vested right; it is a “possibility” or an “option.”

However, as Lord Mansfield observed in Carter v. Boehm: “Insurance is a contract based upon speculation.” ¹⁴ All potential benefits under a policy of insurance are speculative at the time the contract is formed; that is until the happening of the incident which crystallizes those rights to indemnity. In this matter, those rights to indemnification crystallized with the motor vehicle accident of July 23, 2007, long before any change to the SABS was contemplated.

It is important to underline that the New Regulation does not purport to forbid the use of rebuttal reports. Rather, it purports to henceforward limit compensation to an insured for the preparation of the rebuttal report.

Taken at its largest, the new provisions removing funding for rebuttal reports could be interpreted as interfering with an existing contractual right. There is, however, no specific provision altering all existing contracts and unequivocally removing vested rights.

Once again, the basic interpretative tool to be used in interpreting insurance policies is that where there is any ambiguity, coverage should be liberally interpreted and restrictions on coverage narrowly interpreted.

Given, the Director’s Delegate’s analysis of the transition provisions in Federico, and the absence of a clear direction from the legislature that the contractual provisions with regard to indemnity for the costs of rebuttal reports in existing contracts are taken away, I find that an arbitrator is more likely than not to accept Ms. J.’s argument that the contractual right to indemnity subsisted in cases like hers where a claim crystallized prior to the SABS reforms of 2010.

I have already discussed the serious problems in the psychiatric evaluation that underpinned Dominion’s determination of the catastrophic issue. The right to be compensated for a rebuttal report, dealing with an apparently flawed catastrophic determination, would not only be reasonable from a justice and process point of view, but would be supported by the terms of Ms. J.’s existing insurance coverage.

Given a likelihood of success on this issue at arbitration, and the critical importance of having such a report in hand before proceeding to arbitration, I find that this is an appropriate situation for an interim award to fund the necessary disbursements for a rebuttal report or reports.

Costs of Examinations as interim Expense Award:

Arbitrators have jurisdiction to make awards of expenses, including disbursements. Such awards can be made on either an interim or a final basis.

Section 282(11) of the Insurance Act sets out the general criteria for an award of expenses. subsection (11.1) provides that such awards may be made on an interim basis “at any time during an arbitration proceeding”…“subject to such terms and conditions as may be established by the arbitrator.”

Regulation 664 enacted pursuant to the Insurance Act also deals with the award of expenses.

(1) The expenses set out in the Schedule are prescribed for the purpose of subsection 282 (11) of the Act. R.R.O. 1990, Reg. 664, s. 12.

(2) An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

Each party’s degree of success in the outcome of the proceeding.

Any written offers to settle made in accordance with subsection (3).

Whether novel issues are raised in the proceeding.

The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.

Whether any aspect of the proceeding was improper, vexatious or unnecessary.

Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.

Whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation. O. Reg. 275/03, s. 4; O. Reg. 548/05, s. 1; O. Reg. 36/10, s. 2.

Although the majority of the criteria listed are more pertinent to an arbitration that has concluded, items 3 and 4 are relevant to the request for interim funding.

In this case, I accept that Ms. J. and her counsel have consistently pointed out the weaknesses and improbabilities of the CAT report that backs up Dominion’s determination on the issue of catastrophic impairment, and requested that Dominion reconsider its determination, but to no avail.

This refusal to reconsider its determination is adequate justification to move to a formal rebuttal report by the appropriate experts. Indeed, such will be necessary to advance this dispute to the hearing stage as well.

The refusal to re-visit the determination on the part of Dominion has certainly had the effect of prolonging the dispute, one which appears on the basis of the evidence filed by Ms. J. to have been unnecessary.

Catastrophic impairment assessments are not simple reviews with a modest cost. They are complex, multiple reports often by different assessors. A rebuttal report necessarily takes on the complexity of the report whose findings it addresses. Consequentially, I accept that a detailed rebuttal report can and in this case should reflect the complexity and importance of its subject matter. In this case, a complex rebuttal report is not only reasonable but justified.

Cost of Reports:

Ms. J. initially requested the full value of the reports that were felt needed to respond to the Insurer`s catastrophic workup. The total claimed was $14,916.00, a not inconsiderable amount.

In the alternative, Ms. J. also claimed the reimbursement on the basis of a series of reports totalling some $10,500.00.

While there is a substantial gap between the alternative claims, this is reflective of the weaknesses in the underlying legislation.

The repayment of the costs of reports to be used in accident benefit litigation may be justified on two fronts. Firstly, it is in characterizing the report as a rebuttal report, one that is not dependent on a litigation basis, but rather is meant as an aid to an insurer in making or re-visiting its determination on entitlement at any stage in the claims process.

The second basis is as a necessary litigation disbursement. On that basis, there is little need to justify the expense since, on the face, it is reasonable to expect that a party will proceed to trial or a hearing armed with the necessary evidence to prove his or her case. There can be no doubt that a complete rebuttal report is an appropriate inclusion in this battery of evidence.

There is also no doubt that a successful party would be entitled to expect that the cost of his or her reasonable disbursements, including the costs of reports be borne by the opposing side. I have already found that based on the evidence before me, Ms. J. is more likely than not to be successful in her claim against Dominion.

In both the courts and at arbitration there is jurisdiction to make interim costs awards, including awards of disbursements. In the case of FSCO arbitrators that authority is contained in Regulation 664.

The Expense Regulation, which deals with costs awards at FSCO, provides for awards of expenses up to any limit set in the regulations. In essence, given the use of the word “expenses” rather than the more traditional “costs”, the regulation implies that a party may be subject to full indemnity for its reasonable expenses up to any statutory limit. In this case, full indemnity for the disbursement would be $14,916.00.

While there are directions given as to expenses in the Dispute Resolution Practice Code (which is not a regulation), the only provision limiting expenses actually contained in a regulation is that related to reports. The provisions in effect at the time of the motor vehicle accident that crystallized Ms. J.’s contractual rights for indemnification limited the cost of such reports to $1,500.00.

While it results in the paradoxical result that the initial choice of forum¹⁵ dictates the level of reimbursement for reports used in litigation, the limit contained in the Regulation would appear to be a hard limit which an arbitrator has no jurisdiction to vary or waive.

Both the Court of Appeal and the Supreme Court have made reference to statutory accident benefits in the context of a consumer protection scheme. It would be a strange consumer protection system if a vulnerable policyholder was unduly limited in obtaining the necessary information to respond to an Insurer’s misguided report.

A designation of catastrophic impairment is critical to Ms. J.’s future care and treatment. Fairness dictates that Ms. J. should have the opportunity to respond adequately to the myriad shortcomings of the IE reports relating to catastrophic impairment relied upon by Dominion.

While it is perhaps a cumbersome way to achieve fairness, I accept that ordering the funding of seven different stages of reports, totalling $10,500.00, is the only plausible method of proceeding, given the hard limits on reports set out in the Act and its regulations.

To so order would at least level up the playing field adequately enough to permit Ms. J. to provide the Insurer with a cogent rebuttal of the catastrophic reports and to allow the Insurer to make a determination as to catastrophic impairment based on more complete evidence. Therefore, Dominion shall pay Ms. J. forthwith the cost of catastrophic assessment rebuttal reports totalling $10,500.00.

Other Interim Benefits

Ms. J. has asked for an interim award of income replacement benefits. As noted earlier, following the accident Ms. J. went from an apparently successful entrepreneur – owner of a Crabby Joe’s franchise to just another unsecured creditor of her now-bankrupt franchise.

There is no suggestion that Ms. J. is on the street without shelter. That is not to say that her family has not suffered from her lack of income.

While no physicians testified at the interim benefits hearing, I was provided with extensive affidavit evidence relating to Ms. J.’s medical condition post-accident. Included in the affidavit evidence were various medical reports from Ms. J.’s treating physicians as well as an outline of Ms. J.’s condition post-accident. There were also affidavits from her family which starkly outlined the gravity of Ms. J.’s condition.

Even though there was likely some variation in Ms. J.’s condition post-accident, if Dr. Ahmed’s opinion is to be believed, there is no question that over the long run post-accident, Ms. J.’s depression and substance abuse continued virtually unabated.

Dominion, in its submissions, pointed to the absence of reports specifically addressing the test for post-104 entitlement and suggested that in the absence of such reports, there was no evidence to support Ms. J.’s contention that she meets the test for post-104 IRB entitlement.

While specificity in reports is desirable, at this stage in the proceedings it is permissible to extrapolate from available evidence and reach a tentative conclusion without a full vocational rehabilitation workup. The evidence of depression, substance abuse, lack of self-control and suicide attempts does not suggest that Ms. J. is currently capable of integration successfully into a workplace environment, whether that would be her employment at the time of the accident, or other employment to which she might be otherwise suited.

In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

Given the affidavit evidence from her family members, and taking notice that a significant drop in income would send most family finances into a tailspin, I accept that Ms. J. has made a reasonable argument that, without the further payment of benefits, family finances will be adversely affected, and indeed, further hardship is not unforeseeable.

Ms. J.’s psychological difficulties and her suicide attempts seem to have been linked to the motor vehicle accident, both causally and temporally.

Dr. Ahmed is her treating psychiatrist, and has seen Ms. J. over a lengthy period of time post-accident. He clearly sees a linkage between the onset of her psychiatric and psychological problems and the motor vehicle accident.

Dr. Ahmed’s report of May 15, 2013 states that:

She continues suffering from major mood Disorder, Bipolar Spectrum Disorder, and chronic instability of mood, thoughts and behaviour with periodic hypothymia, hypomania and episodes of dipsomania, sleep disorder, appetite disorder, and lack of control, insight and judgement.

He also noted that;

headaches and pain have not been relieved despite taking analgesics. In addition, she reported that her short term memory is impaired. She has difficulty reading articles or newspapers because she cannot recall material she just read, and she forgets plot lines of movies she seen (sic) after a few weeks.

I would doubt that anyone consistently exhibiting such symptoms would be considered as competitively employable, and I so find.

Having in Lord Denning’s words, “regard not only for the strength of the claim but also the strength of the defence,” I also accept, based on the affidavit and written evidence provided to date, that Ms. J. seems likely to persuade an arbitrator of her ongoing entitlement to income replacement benefits when this matter is heard in full.

Timing of the Award:

The ultimate hearing in this matter being before the end of this year, I see no need to pre-empt the hearing arbitrator by ordering arrears and interest payable as well.

Rather, since the Notice of Motion dated March 18, 2013 appears to have been the first time the question of interim income benefits was raised, I will make the payment of interim income replacement benefits effective on that date.

Consequently, my order as to the payment of interim income replacement benefits will be that Dominion shall pay Ms. J. an interim income replacement benefit of $374.16 per week from March 18, 2013 ongoing until such time as either the arbitration is settled or an arbitrator’s final order on the issue has been delivered.

The funding of the rebuttal assessment reports shall be payable forthwith on a one-time basis.

Special Award:

While I accept that there are situations where it is appropriate to deal with a special award on an interim basis, I am not convinced that this is one. I can see little prejudice in leaving that issue to the hearing arbitrator to deal with on the basis of a complete record.

EXPENSES:

The issue of Ms. J.’s expenses of this motion may now be addressed.

September 17, 2013

John Wilson Arbitrator

ARBITRATION ORDER

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

Dominion shall pay Ms. J. forthwith the cost of catastrophic assessment rebuttal reports totalling $10,500.00.
Dominion shall pay $374.16 per week interim benefit from March 18, 2013 on an ongoing basis, until the final disposition of this matter.