Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 49

FSCO A11-000191

BETWEEN:

WAYNE HENRY

Applicant

and

AVIVA CANADA INC.

Insurer

Before: Arbitrator Jeffrey Rogers

Heard: March 15, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Henry

Ms. Susan Bromley, counsel for Aviva Canada Inc.

The issue in this hearing is:

Should this arbitration be dismissed because Mr. Henry did not attend the hearing?

Result:

The arbitration is stayed.
Either party may request that the arbitration be re-opened, on the grounds that there has been a change in Mr. Henry’s ability to meaningfully participate in the process, that he has retained counsel or another representative, or that a litigation guardian has been appointed.

Background:

The Applicant, Wayne Henry, was injured in a motor vehicle accident on May 17, 2008. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Disputes arose regarding his entitlement to further benefits. The parties were unable to resolve their disputes through mediation, and Mr. Henry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was held on November 7, 2011. Mr. Henry was represented by counsel at that time. At the pre-hearing, the parties agreed that the issues in dispute were: caregiver benefits, medical benefits, attendant care benefits, housekeeping and home maintenance benefits, payment for assessments or examinations, interest, expenses, and a special award. The pre-hearing arbitrator scheduled a preliminary issue hearing to address Mr. Henry’s claim for interim benefits. The main hearing was scheduled to start on November 19, 2012.

The preliminary issue hearing proceeded as scheduled on December 7, 2011. Mr. Henry testified at that hearing. By order dated March 1, 2012, the Arbitrator ordered Aviva to pay Mr. Henry interim caregiving, housekeeping and home maintenance benefits, attendant care benefits, and interest, from the date those benefits were terminated, until May 17, 2010 (the 2-year anniversary of the accident).

There was a breakdown in the relationship between Mr. Henry and his counsel after the preliminary issue hearing. Counsel therefore sought an order for removal from the record. That request was granted, by order of September 10, 2012.

Mr. Henry did not retain new counsel. He appeared before me for the hearing on November 19, 2012, representing himself. I found that he lacked the ability to meaningfully participate in and appreciate the nature of the dispute resolution process. When asked for submissions, counsel for Aviva agreed with that assessment. Counsel pointed out that the matter was not really ready to proceed, because the most significant aspects of Mr. Henry’s claims were contingent upon a finding that he had suffered a catastrophic impairment. When Mr. Henry had counsel, plans had been made to move that issue forward and add it to the arbitration. But Mr. Henry had not marshalled an expert opinion supporting his position, and he had not applied for mediation of the issue. He showed little understanding of the need to provide evidence to support his claims or of the dispute resolution process in general. Although he said that he was ready to proceed, doing so could result only in dismissal of his claims.

I adjourned the hearing to March 15, 2013. The purpose of the adjournment was to allow Mr. Henry to seek legal representation or, in the alternative, to determine whether the Public Guardian and Trustee was prepared to intervene pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c.30. I informed Mr. Henry that I would contact the Public Guardian and Trustee if he did not retain a representative by December 31, 2012. Mr. Henry did not retain a representative. His correspondence with the Commission continued to show disorientation.

By letter of January 10, 2013, I asked the Public Guardian and Trustee to consider arranging for an assessment of Mr. Henry’s capacity for the purpose of determining whether to represent him in this matter. The Public Guardian and Trustee initiated an investigation. I have no formal response, but I am advised that no further steps will be taken, since preliminary information indicates that Mr. Henry does not meet the definition of lack of capacity to manage his property, as set out in the Substitute Decisions Act.

Mr. Henry did not appear for the hearing on March 15, 2013, and no one appeared on his behalf. Aviva submitted that the arbitration should be dismissed. Aviva submitted in the alternative that, failing dismissal of the arbitration, the accrual of interest should be stayed. This submission was withdrawn, by letter of March 20, 2013.

ANALYSIS:

Aviva’s request for dismissal of this arbitration raises the question of whether a decision should be made to extinguish Mr. Henry’s rights, while he lacks the capacity to participate in the proceeding. I find that it would be unfair to do so.

The general rule is that adjudication will not proceed to the prejudice of a party under disability, unless someone has been appointed to represent that party’s interest. I brought this rule to Aviva’s attention. I gave the example of limitation periods being held in abeyance, while a potential claimant is a minor. Aviva argued that the situation here is different, since Mr. Henry has already commenced his application. I find that fairness nevertheless requires protection of his interests, while he lacks the capacity to pursue them.

Aviva did not identify any prejudice from delay. It appears that any prejudice from delay will accrue to Mr. Henry. As time passes, any new expert opinion he obtains regarding his function at times relevant to his claims will be less persuasive. Memories will fade, and documents will become less accessible. Therefore, I see no prejudice to Aviva in preserving Mr. Henry’s rights to pursue the claims he has made.

For the above reasons, Aviva’s request to dismiss this arbitration is denied. Instead, I order that this arbitration is stayed. Either party may request that the arbitration be re-opened, on the grounds that there has been a change in Mr. Henry’s ability to meaningfully participate in the process, that he has retained counsel or another representative, or that a litigation guardian has been appointed.

April 16, 2013

Jeffrey Rogers

Arbitrator

Date