Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 139

FSCO A13-003027 & A13-014560 and A13-003026 & A13-014559

BETWEEN:

KWOK LEUNG LEE and SUET MAN YAU

Applicants

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Morris J. Winer, Q.C.

Heard: In person at ADR Chambers on May 11, 2015

Appearances: Ms. Tania Shaheen for Mr. Kwok Leung Lee and Mrs. Suet Man Yau Ms. Andrea Lim for State Farm Mutual Automobile Insurance Company

Issues:

The Applicants, Mr. Kwok Leung Lee and Mrs. Suet Man Yau, husband and wife, were both injured in motor vehicle accidents on September 8, 2010 and again on November 18, 2011. They sought parallel and similar accident benefits in four claims from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation,² and they, through their representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I. 8, as amended.

The Arbitration Hearing of these claims together is scheduled for September 5 through the 8, 2015. At the Pre-Hearings of all four claims together, on April 25, 2014, this Preliminary Issue Hearing was scheduled, regarding s. 55.2 of the Statutory Accident Benefits Schedule (“SABS”).³ The parties have filed separate affidavits for each of the four claims and have filed written arguments, facta, books of authorities, and presented oral arguments regarding all four claims. There was no oral evidence. The affidavit evidence for the Insurer was provided by Jeff Kope, the adjuster for State Farm. The affidavit evidence of the Applicants was provided by Yu Jiang, paralegal for the Applicants.

The issues in this Preliminary Hearing are:

Are the Applicants precluded by s. 55.2 of the SABS from mediating and arbitrating claims for Housekeeping and Home Maintenance Benefits as described in the OCFs of September 29, 2010 for the September 8, 2010 accident because they failed to attend examinations arranged by the Insurer?⁴
Are the Applicants precluded by s. 55.2 from mediating and arbitrating claims for benefits in connection with the 2011 accident, in particular Attendant Care, medical, chiropractic, and costs of examinations and assessments of Point Grey Physio, because they failed to attend examinations arranged by the Insurer for the OCFs of December 2, 3, 5, and 8, 2011?
Are the Applicants entitled, or is it reasonable for them, to insist on an interpreter accredited by the Ministry of the Attorney General (“MAG”) to be present at examinations?

Result:

The Applicants are precluded by s. 55.2 of the SABS from mediating and arbitrating claims for Housekeeping and Home Maintenance Benefits described in the OCFs of September 29, 2010 in connection with the 2010 accident because they failed to attend examinations arranged by the Insurer.
The Applicants are precluded by s. 55.2 of the SABS from mediating and arbitrating claims for benefits in connection with the 2011 accident, in particular those claims for Attendant Care, medical, chiropractic, and cost of examinations and assessments, because they failed to attend examinations arranged by the Insurer, for the OCFs of December 2, 3, 5, and 8, 2011.
The Applicants are not entitled, nor is it reasonable for them to insist on an interpreter accredited by the Ministry of the Attorney General to be present at examinations.

EVIDENCE AND ANALYSIS:

Mrs. Yau, age 35, is an investment banker employed by HSBC in downtown Toronto, and has a business degree from the University of Toronto. Mr. Lee, age 37, received High School and College education in Canada. He is a self-employed computer consultant. Cantonese is their first language.

Following the first accident, the Applicants filed tandem OCFs on September 28, 2010 for Housekeeping and Home Maintenance Benefits. The Insurer sent notices that it required examinations and scheduled examinations by an occupational therapist and physiatrist.⁵ The Applicants failed to attend the occupational therapist’s home examinations and left the physiatrist examination before it was completed.⁶ Another physiatrist examination was arranged for May 13, 2011.

The paralegal for the Applicants wrote separately to the Insurer on May 10, 2011 as follows:

Please be advised we require confirmation of the CV from an interpreter that is accredited by the Ontario Ministry of the Attorney General for the upcoming assessments. Please ensure same is sent to our office well in advance of the IE failing which we will not be in a position to confirm our client’s attendance at same.⁷

The Applicants did not attend the make-up physiatrist examination of May 13, 2011. In all, the Applicants did not attend the examinations of March 21, 2011 and May 13, 2011 and left early on March 29, 2011.⁸ The Insurer was billed over $5,000.00 for the missed appointments, and did not pay the claims of the Applicants.

In November 2010, the Applicants had actually attended detailed insurer’s examinations with the assistance of non MAG Cantonese interpreters, one by an Occupational Health Medical Doctor and another by a Psychologist, without any apparent problems.⁹

Following the second accident, the Applicants submitted five twin OCFs representing treatment plans from Point Grey Physio for Attendant Care, chiropractic, total body assessment, and assistive devices. The Insurer sent notices of insurer’s examinations for each and in particular, arranged a medical examination by a medical doctor for January 16, 2012.¹⁰ The Applicants’ paralegal wrote the same two letters on January 9, 2012 as in Tab K of Exhibits 1 and 2.¹¹

Please be advised we require confirmation of the CV from an interpreter that is accredited by the Ontario Ministry of the Attorney General for the upcoming assessments. Please ensure same is sent to our office well in advance of the IE failing which we will not be in a position to confirm our client’s attendance at same.¹²

Then Ms. Jiang wrote on January 13, 2012 acknowledging receipt of a CV for Gilbert Leung, Cantonese interpreter, but stating that her client Mr. Lee would not attend without a MAG Accredited Interpreter.¹³

Thank you ... in regard our client’s request for an accredited interpreter to assist him in his Insurer’s Examination. Our office is in receipt of the CV of Gilbert Leung. However, please note that our office is requesting a Cantonese interpreter that is accredited by the Ministry of the Attorney General. As such, our client will not attend the scheduled insurer’s examination on January 16, 2012 without a Cantonese interpreter that is accredited by the Ministry of the Attorney General.

The Applicants did not attend on January 16, 2012. The Insurer was invoiced over $2,600.00 for the missed appointments and did not pay the claims of the Applicants.

The Applicants’ counsel does not substantially deny the above facts, but takes the position that there is a duty of good faith to parties in some cases such as this one, when the Applicants say that they are not comfortable with interpreters in an opposite party assessment situation; and so, in these circumstances, the Insurer should have supplied a MAG Accredited Interpreter. There is no evidence, however, that the proposed or intended interpreter was not capable of accurately interpreting the proceedings. Also, on the evidence submitted, little to none of that vulnerability and nervousness alleged was conveyed to the Insurer, nor does the objective evidence indicate that it exists. The evidence falls short of showing poor treatment by the Insurer in the arrangement of these appointments. The Insurer is entitled to these examinations to ascertain whether the claims should be paid.

The evidence is clear that the Applicants have considerable knowledge of English, even though it isn’t their first language. They have also attended insurer examinations and followed detailed instructions from the examiners with the help of non accredited interpreters. I believe that the failure to attend the examinations was not reasonable. There was no acceptable reason for non- attendance.

Section 55.2 of the SABS provides that an Insured person shall not commence a mediation proceeding if the Insurer has provided the Insured with required notice that it requires an examination under s. 44, but the Insured has not complied with s. 44.¹⁴

Section 55 of the SABS provides that an Insured person shall not commence a mediation proceeding under s. 280 of the Insurance Act if any of the following circumstances exist:

The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

The Insurer has provided notices citing s. 44 of the SABS. Section 44 of the SABS gives the Insurer the right to examine the Insured for the purpose of assisting the Insurer to determine the entitlement to a benefit. It sets out the notice requirements.¹⁵ There is no specific evidence presented as to how the notices were defective. The Applicants failed to attend examinations in accordance with the notices and in one instance left early before the examination could be completed and then failed to attend the make-up examination. The Insurer has been deprived of the opportunity to assess the claims. The sole objection to the examinations on the evidence is the failure to supply a MAG Accredited Interpreter in the Cantonese language.

Section 281(2) of the Insurance Act provides that no person may refer the issues in dispute to an arbitrator under s. 282 unless mediation was sought and failed.¹⁶

Section 281 provides as follows:

(1) Subject to subsection (2),

(b) the injured person may refer the issue in dispute to an arbitrator under section 282;

(2) No person may ... refer the issues in dispute to an arbitrator under s. 282...unless mediation was sought and failed...

Because this claim could not be mediated without the examinations, the Applicants cannot refer the issues in dispute to Arbitration.

Neither the Insurance Act, the SABS, nor the Dispute Resolution Practice Code require a MAG Accredited Interpreter.

The Insurer has submitted in evidence a list of acceptable contractors for the Workplace Safety and Insurance Board (“WSIB”). The WSIB, which deals with similar types of examinations as those in the SABS, lists, as available contractors, non MAG interpreters.¹⁷

The Rules of Civil Procedure, which govern Ontario Superior Court actions, require in Rule 34.09,¹⁸ a competent and independent interpreter for examinations. There is no requirement for a MAG interpreter:

34.09 (9) (1) Where a person to be examined does not understand the language in which the examination is to be conducted...a competent and independent interpreter shall...take an oath...to interpret accurately...the questions...and answers.

Those, I believe, are the tests, i.e., competence, independence, and accuracy, and not whether the aforementioned Mr. Gilbert Leung, the interpreter, has MAG accreditation.

There are three recent decisions on similar facts which have also held that the Insured is not entitled as of right to have a MAG Accredited Interpreter.¹⁹ I am informed that they are being appealed. The Applicants’ counsel referred to these cases, not to distinguish them from this case, but to show how they were wrongly decided.

In Maude v. State Farm,²⁰ a decision of Arbitrator Arbus, on different facts, the Insured person failed to attend insurance examinations. The matter proceeded to Arbitration along with the issue of failing to attend an examination, and that issue was treated as a Preliminary Issue before the Arbitrator, who held:

The language of s. 55 is mandatory with no exceptions...failure to attend the examinations precludes the applicant from proceeding to mediation and therefore arbitration...

The Applicants submit that the requirement of a MAG interpreter is one “feature” of this s. 55.2 issue and they wish to add two other features or issues as follows:

Does the insurer have to pay for at least $3,500.00 for Minor Injury Guideline benefits?
Were the notices deficient?

The Insurer’s position is that the MAG interpreter issue is the only feature of s. 55.2 at this Hearing. I agree. On the evidence presented, these proposed issues were not raised as objections to attendances at examinations. They appear in the Factum of the Applicants in February of this year. In fact, the Applicants have indicated throughout that they were willing to attend the examinations if a MAG interpreter was present. These were not the issues giving rise to this Hearing. The submissions regarding these issues were brief and vague. On the evidence presented, the Applicants would not have attended the examinations, no matter the notices, unless there was a MAG interpreter present.

Conclusion

For the forgoing reasons, the Applicants are precluded by s. 55.2 from mediating and therefore, arbitrating the claims for Housekeeping and Home Maintenance, medical benefits, and costs of examinations described in the OCFs of September 29, 2010, resulting from the accident of September 8, 2010.

The Applicants are also precluded from mediating and arbitrating claims for Attendant Care, medical and chiropractic benefits, and costs of examinations and assessments for treatment plans of Point Grey Physio, described in OCFs of December 2, 3, 5, and 8, 2011, resulting from the November 18, 2011 accident.

EXPENSES:

It the parties cannot agree on expenses, they should contact me through ADR Chambers.

June 30, 2015

Morris J. Winer, Q.C. Arbitrator

Date