Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 9
FSCO A13-000231
BETWEEN:
LI YA LUO
Applicant
and
UNICA INSURANCE INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Rosemary Muzzi
Heard: August 18, 2014, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Mr. Bois, agent for Philip (Kai Kwong) Yeung, for Ms. Luo
H. Jack Parsekhian and Stanley Razenberg for Unica Insurance Inc.
Issues:
Li Ya Luo, the applicant, was injured in a motor vehicle accident on October 6, 2010. She applied for and received certain statutory accident benefits from Unica Insurance Inc. (“Unica”), payable under the Schedule.1 Unica scheduled numerous insurer examinations pursuant to section 44 of the Schedule over the course of many months to determine Ms. Luo’s entitlement to the benefits she claimed.
Ms. Luo refused to attend each examination on the basis that Unica would not provide her with a Cantonese interpreter with a specific accreditation. In particular, Ms. Luo sought the services of a Cantonese interpreter accredited by the Ministry of the Attorney General (MAG) otherwise she would not attend the insurer’s examinations.2 Unica offered a number of interpreters, otherwise accredited, but they were not suitable to Ms. Luo who maintained her refusal to attend. As a result, Unica refused to pay her benefits.
The parties were unable to resolve their disputes through mediation, and Ms. Luo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Unica raised a preliminary issue. The preliminary issue is:
- Is Ms. Luo precluded from commencing a mediation pursuant to section 55 of the Schedule because she failed to attend insurer examinations pursuant to section 44?
Result:
- Ms. Luo is precluded from commencing a mediation purusuant to section 55 of the Schedule because she she failed to attend insurer examinations.
ANALYSIS:
Sections 55 and 44 of the Schedule
Section 55 paragraph 2 says that an insured person shall not commence a mediation proceeding if 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.
Section 44 of the Schedule provides for examinations by the insurer but not more often than is reasonably necessary and with certain notice and other requirements to the applicant.3
Section 44(9) sets out the rules4 applicable in respect of examinations where the attendance of the insured person is required. This section does not specifically make reference to the use of interpreters. The Schedule also provides that an insurer may refuse to pay benefits relating to the period after an insured failed or refused to comply with a section 44 examination5 until such time as the insured person complies with section 44. Moreover the Schedule states that in the case of subsequent compliance with section 44, the insurer shall pay all amounts withheld during the period of non-compliance if the insured provides a reasonable explanation for not complying.
The only challenge Ms. Luo made to Unica’s examinations of her is the fact that Unica failed to provide her with an interpreter with a specific accreditation. Unica did not refuse to provide her with a Cantonese interpreter outright. Unica offered a number of interpreters otherwise qualified and available to interpret for Ms. Luo. Nonetheless, Ms. Luo did not attend any of the examinations. Ms. Luo argues that the absence of a MAG-certified interpreter at Unica’s section 44 examinations is a reasonable explanation for her failure to attend.
Findings
There are a number of reasons for which I find that the absence of a MAG-certified interpreter is not a reasonable explanation for Ms. Luo’s refusal to attend Unica’s section 44 examinations.
First there is no explicit legislative or other requirement for an insurer to provide a MAG-certified interpreter to its insureds subject to section 44 examinations.
Ms. Luo asserted to Unica that: “[t]he issue of experience and accreditation is relevant because there are over 100 dialects of Chinese. Further when matters proceed to court or FSCO, the interpreter must be qualified by the Attorney General’s office”6. She also asserted that insurers’ responsibilities are: “… outlined in SABS in regards to ensuring that necessary and reasonable assistance are provided for the insured to attend the insurer’s examination arranged by the insurer.”7
In fact, the applicable rules in the Schedule in respect of section 44 examinations do not require that any necessary interpreter have any specific accreditation. Further, the notice sent to insureds need not detail an interpreter’s specific accreditation.8
FSCO Superintendent’s Bulletin No. A23/10 is the only bulletin specifically speaking to the issue of interpretation services and it does not require specific accreditation of interpreters. In this regard, it states:
The cost of services that are sometimes provided by interpreters in connection with assessments or examinations of insured persons who have a language barrier are not intended to be covered under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS). This does not prevent an insurer from paying or arranging for these services as an adjusting expense.
Health care providers and other persons acting on their behalf should not be arranging for interpreter unless they have prior approval by the insured person and the insurer for payment.
FSCO expects insurers to use their own internal policies and procedures that comply with best practices and legislative requirements, when determining whether interpreters are required. [emphasis added]
The Dispute Resolution Practice Code does not require that interpreters used by FSCO have any particular accreditation. The majority of interpreters provided by the interpretation service used by the Commission are not certified by the Ministry of Attorney General.9 Even in the criminal courts of Ontario, where MAG has created its own accreditation scheme for interpreters in criminal proceedings, judges retain a right to determine the issue for themselves.10 There is a shortage of interpreters accredited by the MAG and the limited number of such interpreters are busy with criminal court proceedings.11
Second, Ms. Luo is not in a position to argue that only a MAG-accredited interpreter would suffice when there is evidence that she availed herself of the language services of other Cantonese speakers who had no obvious accreditation at all.
On referral from her own counsel, Ms. Luo attended two assessments soon after her accident, on October 12 and 26, 2010, with occupational therapist Raymond Wong (OT) .12 The first assessment was to determine her needs for attendant care and housekeeping assistance. Mr. Wong performed a second assessment on October 26, 2010, ostensibly for the same purpose, to determine her needs for attendant care. In both cases, Mr. Wong apparently conducted the assessment in the Cantonese language.13 Ms. Luo was also assessed by a psychologist, Wendy Lee, on referral from her own counsel and paid for by Unica, on December 12, 2010. The assessment was conducted in Cantonese by Ms. Lee.14
Ms. Luo argues in one breath that “[t]he issue of experience and accreditation is relevant because there are over 100 dialects of Chinese”. Yet, Unica contacted Ms. Luo’s treatment providers at Carlan Physiotherapy and was advised that an interpreter was never used when treating her.15 This information was confirmed in Ms. Luo’s evidence16 and explained by the fact that the treatment providers at the clinic all spoke Cantonese. This information however does not shed light on the speaker’s qualifications or particular competence in the language.
The same applies to both the OT and the psychologist who assessed Ms. Luo at the request of her counsel. They were also apparently Cantonese speakers for whom no particular accreditation was required. It does not go without saying that a doctor or other health practitioner who might be a native speaker of Cantonese or otherwise have the ability to speak Cantonese is better qualified to understand or speak Cantonese than a person certified to interpret in the same language.
Finally, there is no evidence to show that Ms. Luo would not have understood or have been understood if she had attended Unica’s examinations. Unica offered Cantonese interpreters for its examinations and delivered CVs indicating accreditation and experience. The CVs suggest that these interpreters had the requisite competence and experience. For example, all of them possessed a CILSAT certificate recognized by the Ministry of Citizenship and Immigration17, had experience in interpreting proceedings for various Ontario government agencies, and two of them had interpreted at the Immigration and Refugee Board of Canada. These interpreters were under contract to a company used by a wide variety of clients within the litigation, arbitration, medical and private spheres.18 In my view there is sufficient information in the CVs to satisfy a prima facie case for competence. Even if not, however, Unica asked Ms. Luo to provide a list of interpreters approved by her so that the examinations could proceed.19 Ms. Luo did not respond to the request.20
Moreover, in failing to attend even one of the examinations to determine whether or not they were capable of assisting her, Ms. Luo is hardly in a position to even argue that they were not competent.
Conclusion
Ms. Luo did not attend Unica’s examinations scheduled on December 9 and 14, 2010, February 15, 2011, March 1, 10 and 29, 2011, and April 7, 12 and 19, 2011. These examinations had been scheduled to assess her entitlement to caregiver and housekeeping benefits, attendant care benefits and some medical benefits as well. As a result of her failure to attend, Ms. Luo has never been assessed by Unica in relation to almost all of the benefits she claimed. Unica refused to pay benefits. Ms. Luo has failed to make out her case for a reasonable explanation for her failure to attend the insurer examinations. As such, and pursuant to section 55 of the Schedule, her failure to comply with section 44 precludes her from proceeding to mediation on the issues included in her application for arbitration.
EXPENSES:
I exercise my discretion to award Unica its reasonable expenses incurred in this preliminary issue hearing.
January 19, 2015
Rosemary Muzzi
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 9
FSCO A13-000231
BETWEEN:
LI YA LUO
Applicant
and
UNICA INSURANCE INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Luo is precluded from proceeding to mediation on the issues indicated in her application for arbitration.
Unica is awarded its reasonable expenses incurred in this preliminary issue hearing.
January 19, 2015
Rosemary Muzzi
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Affidavit of Yu Jiang, Exhibit G, N
- Sections 44(5) and (6) of the Schedule
- Section 44(9)
- For example, sections 37(7) and 42(14)
- Affidavit of Yu Jiang, Exhibit S
- Affidavit of Sebastian Morana, Exhibit CC
- Sections 44(5) and 44(6) of the Schedule
- Affidavit of Ross Baker dated August 6, 2014, paragraph 2b
- Affidavit of Ross Baker, see in particular Tab J where the judge allows a “conditionally accredited” MAG interpreter in Mandarin to proceed. R. v. Blair [2012] O.J. No. 1834
- Affidavit of Ross Baker dated July 17, 2014, paragraph 13
- Affidavit of Yu Jiang, Exhibits B and C
- Affidavit of Yu Jiang, page 2 of each of Exhibits B and C
- Affidavit of Yu Jiang, Exhibit H
- Affidavit of Sebastian Morana, Paragraph 34
- Affidavit of Yu Jiang, Paragraph 47
- Affidavit of Sebastian Morana, Exhibits I and P
- Affidavit of Ross Baker dated July 17, 2014 (actually dated August 6, 2014)
- Affidavit of Yu Jiang, Exhibit P
- Affidavit of Sebastian Morana, Exhibit W