REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: March 6, 2014 by teleconference

Appearances: David Wilson for Ms. Navage James M. Brown for Aviva

Issues:

The Applicant, Bronwen Navage, was injured in motor vehicle accidents that took place on February 8, 1994 and February 17, 1996. Disputes arose between Ms. Navage and her insurer, Aviva Canada Inc. ("Aviva"), concerning her entitlement to accident benefits payable under the Schedule¹ and Ms. Navage applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act.²

The arbitration is scheduled to proceed on June 23 to June 26, 2014.

On September 30, 2013, Aviva filed a motion requesting, in addition to an Order abridging the time for the filing reports, an Order staying the arbitration proceedings pending the Applicant's participation in an insurer's examination with an occupational therapist.

Aviva bases its request on several factors, the most significant of which is that Aviva would be highly prejudiced in the forthcoming arbitration hearing if it does not obtain its own assessment of Ms. Navage's attendant care needs.

Aviva's request is in response to an addendum report dated September 17, 2012 by Nancy Robinson indicating that the cost of Ms. Navage's monthly attendant care needs is $5,733.49, a substantial increase from her August 2012 estimate of $924.04 per month. The reason for the increase is that Ms. Navage began to experience "black outs", a "high risk for falls" and "very disturbed sleep patterns" which would require a significantly increased level of personal supervision.³

Mr. Wilson, counsel for Ms. Navage, opposes this request on several grounds. One is that Ms. Navage was assessed, at the request of Aviva, by an occupational therapist Aneez Verani, in September 2011. In her report, Ms. Verani concluded that Ms. Navage is "substantially disabled from the management of both, the parameters of self-care as well as her Preaccident [sic] homemaking responsibilities".⁴ No Form 1 was provided by Ms. Verani as required by the Schedule. Despite numerous requests, Mr. Wilson was not provided with Ms. Verani's Form 1 until 2013. The Form 1 indicates that the cost of Ms. Navage's attendant care needs is nil. Mr. Wilson says that this contradicts Ms. Verani's September 2011 report and that the Form 1 is flawed because it contains the wrong date of accident. Mr. Wilson argues that there is no need for a further assessment, it is simply a matter of producing a new Form 1 that properly reflects the conclusion reached in Ms. Verani's 2011 report. At the same time Mr. Wilson argues that Ms. Verani's report is tainted in that she stepped outside her area of expertise by commenting on the cause of Ms. Navage's disability.

Analysis

One of the tenets of procedural fairness is that parties have an opportunity to make full answer to the position of the other party. In these circumstances, Ms. Navage has obtained a report that paints a dramatically different picture of Ms. Navage's attendant care needs. Mr. Wilson argues that Aviva already has a counter to that in the form of Ms. Verani's report and it is simply a matter of preparing a Form 1 that properly reflects the conclusion reached in Ms.Verani's report.

However, Ms. Verani's report was prepared prior to Ms. Robinson's September 2012 addendum. It does not address the issue of Ms. Navage's blackouts, which is apparently a new phenomena that was not present at the time Ms. Verani conducted her assessment. If the arbitration were to proceed without an opportunity for Aviva to re-assess Ms. Navage in light of this new development, it would have no report that addresses the new phenomena and the degree to which it may or may not impact Ms. Navage's attendant care needs. Mr. Wilson claims Aviva has the information in the form of the Verani report to respond to Ms. Robinson's assessment but the Verani assessment was conducted in September of 2011, prior to Ms. Navage developing blackouts. The evidence suggests that the landscape of Ms. Navage's condition has altered significantly. It is also possible that a further assessment may have the effect of settling the issue and obviating the need to arbitrate it.

I therefore find that procedural fairness requires that Aviva be given an opportunity to re-assess Ms. Navage's attendant care needs and accordingly, the arbitration proceeding, scheduled for June, 23, 24, 25, and 26, 2014, is stayed pending Ms. Navage's participation in an insurer's examination by an occupational therapist.

May 6, 2014

Stuart J. Mutch Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 75

FSCO A13-000006

BETWEEN:

BRONWEN NAVAGE

Applicant

and

AVIVA CANADA INC.

Insurer

ARBITRATION ORDER

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

The arbitration proceeding, scheduled for June 23, 24, 25, 26, 2014 is stayed pending the Applicant's participation in an insurer's examination by an occupational therapist.