Charmaine Marie Green v. Belair Insurance Company Inc., 2016 ONFSCDRS 119

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 119

Appeal P15-00007

OFFICE OF THE DIRECTOR OF ARBITRATIONS

CHARMAINE MARIE GREEN

Appellant

and

BELAIR INSURANCE COMPANY INC.

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. Alon Rooz for the Appellant, Ms. Charmaine Marie Green

Mr. Thomas R. Hughes for the Respondent, Belair Insurance Company Inc.

HEARING DATE:

April 7, 2016 (Oral decision rendered April 7, 2016)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The issues of entitlement to and the quantum of arbitration legal expenses shall be determined at the arbitration level and not in this appeal.

2. On the terms set out in full within, oral submissions in this appeal are adjourned, peremptory to the Appellant, to a date to be determined.

3. The Appellant shall pay the Respondent its legal appeal costs thrown away for the adjourned oral appeal hearing, fixed in the amount of $750, inclusive of HST.

April 19, 2016

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND AND NATURE OF THE APPEAL

The Appellant, Ms. Charmaine Marie Green, was injured in a September 20, 2009 motor vehicle accident. As a result, she applied to her first-party automobile insurer, the Respondent, Belair Insurance Company Inc., for statutory accident benefits available under the 1996 Schedule.¹

This proceeding was one of fifteen arbitration decisions that were the subject of Intact Insurance Company and Belair Insurance Company Inc. and Aweys et al., (FSCO P12-00007-P12-00021, February 1, 2013). These appeals were from Arbitrator Feldman’s March 19, 2012 decisions declining to stay the arbitrations pending the determination of Ontario Superior Court of Justice Court File #CV-11-428030. The court action, seeking $15 million in damages, alleged that certain treatment clinics had engaged in misconduct in the claims of 217 insured persons.

Applying RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, Arbitrator Feldman held that the insurers in the 15 arbitrations before him had failed to establish irreparable harm if a stay was not granted. Nor was he persuaded that allowing the cases to proceed to be heard on their merits would constitute an abuse of process, finding no convincing evidence that any of the insured persons in the 15 cases had engaged in any alleged misconduct.

In November 2012 appeal submissions in Aweys, I was advised that the court action was still at the pleadings stage, but that the insurers anticipated it would now proceed much quicker.

On appeal, I confirmed Arbitrator Feldman’s decisions. I was persuaded that public interest, the integrity of this alternative dispute resolution system and the balance of convenience favoured using this alternative dispute resolution system the way it was intended, namely for open, transparent, quick, efficient, inexpensive and just hearings to determine entitlement to and/or the quantum of statutory accident benefits to which an insured person was entitled.

On the April 7, 2016 oral hearing date herein, the Respondent advised that the Superior Court action, commenced June 6, 2011, remains at the pleadings stage. In the interim, the parties in this specific matter had come before Arbitrator Richards (the “Arbitrator”) in December 2013 for a determination of the Appellant’s entitlement to disputed statutory accident benefits. The Arbitrator’s December 18, 2014 decision dismissed the Appellant’s claims, as follows:

1. The Appellant was not entitled to $11,886.04 for Osler Rehabilitation Centre’s services

The Arbitrator found that the Appellant was not credible. Dr. S.D. Choe, the Appellant’s family doctor, saw the Appellant starting two days after the accident. There was no indication Dr. Choe knew the accident had occurred. The Arbitrator found it implausible that the Appellant had suffered the significant impairments she alleged yet did not tell her regular treating doctor about the accident during the entire period for which she claims benefits.

The Arbitrator preferred the reports of Dr. T. Doron over those upon which the Appellant relied.² He found Dr. Doron’s note of the inconsistency in the Appellant’s presentation evident at arbitration. The Arbitrator held that the treatment at Osler Rehabilitation Centre (“Osler”) was not reasonable and necessary. Nor was he persuaded the Appellant had attended for the treatment claimed. As the Appellant had not proven the services were provided, they were not payable.

The Appellant’s appeal is restricted to $1,342.48 of the $11,886.04 claimed at arbitration for Osler’s services. Her written submissions relied upon paragraph 38(8.2)(2) of the 1996 Schedule:

(8.2) If the insurer fails to give a notice under subsection (8) in accordance with subsection (8.1), the following rules apply:

2. In the case of a notice under paragraph 1 of subsection (8), the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives the notice described in paragraph 1 of subsection (8).

[Emphasis added]

The Appellant submits that the Respondent failed to respond to her requests for payment of invoices totaling $1,342.48. She argues that under the 1996 Schedule payment is now mandatory. She submits that the Arbitrator erred in incorrectly addressing whether the treatment plans were reasonable and necessary.

The Respondent relies on Perth Insurance Company and Shmuel, (FSCO P13-00026, July 22, 2014), where, in overturning a partial award of medical benefits, Delegate Evans held:

… the Arbitrator specifically found that it was impossible to determine what treatment had been administered to Mr. Shmuel in the course of his attendances at Universal Rehab. Although the Arbitrator used the term “administered,” this is the same as saying “provided.” Thus, according to the Arbitrator’s own findings, it is impossible to say what goods and services under the treatment plans were provided to Mr. Shmuel, or when. [Emphasis added]

2. The Appellant was not entitled to payment of $1,074.74 for Assessment Direct’s Follow-Up In-Home Assessment dated March 2, 2010

The Arbitrator was not persuaded that this follow-up in-home assessment was reasonable and necessary, finding that the Appellant was not as impaired as she presented to assessors. The Arbitrator was further not persuaded that the assessor, Dr. M. Shteynberg, D.C., had actually conducted this assessment. The Arbitrator drew an adverse inference from Dr. Shteynberg’s failure to testify.

The Appellant submits that the Arbitrator found that the Respondent never responded to her application for a follow-up in-home assessment. The Appellant’s written submissions relied on paragraph 38(8.2)(2) of the 1996 Schedule, arguing that as the Respondent had not responded, the assessment was payable. The Appellant submitted that the Arbitrator had erred in considering credibility and whether the account was reasonable, necessary and/or incurred.

The Appellant also argued that there was no factual basis for the Arbitrator’s inference that the in-home assessment did not occur. She also argued it was “nonsensical” to draw an adverse inference against her decision to file her reports, noting the Commission pre-hearing letter encouraging the parties to file reports whenever practicable rather than call the authors to testify.

The Respondent cites Sopinka and Lederman, The Law of Evidence in Canada, 2nd Ed. (Toronto: Butterworths & Company (Canada) Limited, 1999), paragraph 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant … fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.

3. The Appellant was not entitled to monthly attendant care benefits of $814.63 from September 20, 2009 to September 19, 2011, less amounts paid

The Appellant based her attendant care benefits claim on a September 21, 2009 Form 1 of Dr. L. Kushnir, D.C. The Arbitrator was not persuaded the Appellant saw Dr. Kushnir on September 21, 2009, or on any other date. Even if the attendant care assessment had taken place, the Arbitrator found the Appellant’s subjective report unsupported by the evidence and inconsistent with her reports to her family doctor and to the specialists to whom he referred her.

The Appellant alleged that her son had provided a year of attendant care services. The Arbitrator drew a negative inference from the son’s failure to testify. Accepting the Respondent’s expert evidence, the Arbitrator found the Appellant’s attendant care benefit claim to be neither reasonable nor necessary. The Appellant does not appeal this order.

4. The Appellant was not entitled to weekly housekeeping and home maintenance benefits of $100 from September 20, 2009 to September 19, 2011, less amounts paid

The Arbitrator found that the Appellant did not suffer a substantial inability to perform her pre-accident housekeeping and home maintenance activities as a result of accident-related impairments. He again drew a negative inference from the Appellant’s failure to call as a witness her son whom, she claimed, provided housekeeping and home maintenance services for her after the accident. The Appellant does not appeal this order.

5. A Special Award under subsection 282(10) of the Insurance Act

The Arbitrator found that the Appellant had not presented evidence to persuade him that the Respondent had improperly terminated her benefits or did not properly assess her benefit claims. Accordingly, the Arbitrator found that a special award was not warranted. The Appellant appeals this decision. However, she provided no written appeal submissions on this issue.

The Appellant also seeks interest on the follow-up In-Home Assessment and the assessment and form completion fees under appeal, as well as her legal expenses.

III. DISPOSITION

On the consent of both parties, as confirmed in the September 22, 2015 Notice of Hearing, oral submissions in this appeal were set for April 7, 2016. My March 29, 2016 letter, referencing Rule 56.4 of the Dispute Resolution Practice Code (Fourth Edition – Updated January 2014) (the “Code”), set out my understanding of the appeal record in this case.

The Appellant’s April 6, 2016 letter asked that the Response to an Application for Arbitration be included in the record. The Respondent did not object. I amended the record accordingly.

My March 29, 2016 letter also stated that in the absence of any offer to settle to be considered, the parties should be prepared at the oral appeal hearing to speak to both entitlement to and the quantum of appeal legal expenses. The Respondent’s April 6, 2016 letter stated that its January 16, 2015 letter, sent 15 months ago, had asked the Arbitration Unit for an arbitration legal expense hearing, but had received no response. The Respondent asked that I also determine the arbitration legal expenses.

At the oral appeal hearing I stated that for this Appellate Unit to determine the legal expenses at first instance was to deny both parties their statutory right of an internal appeal under subsection 283 of the Insurance Act. I was persuaded that in this case it was appropriate for the Respondent to pursue its request with the arbitration unit for an arbitration expense hearing.

I then turned to the substance of this appeal. I summarized that this appeal concerns $2,417.22 ($1,074.74 for the follow-up Home Assessment and $1,342.48 for the Osler Treatment Plans) plus interest and a special award that flowed therefrom, and the meaning of paragraph 38(8.2)(2) of the 1996 Schedule. The Respondent agreed with that summary of the appeal issues.

The Appellant, however, advised that she was also relying on section 38.2 of the 1996 Schedule. That provision pertains to an application for approval of an assessment or examination.

I indicated I did not recollect section 38.2 being raised in the Appellant’s written appeal submissions. The Appellant agreed it was not. I asked what notice had been given to the Respondent of a section 38.2 ground of appeal. I was advised there was none. I inquired as to where in the filed arbitration transcript from the December 2013 hearing section 38.2 was mentioned. The Appellant stated that those words were not to be found coming out of anyone’s mouth at arbitration.

I noted that Rule 1.1 of the Code provides that these Rules shall be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute. The “most just” result incorporates fairness. Fairness includes avoiding surprises, especially litigation by stealth. A main reason for written appeal submissions is to allow both parties a reasonable opportunity to set forth their own position and a reasonable opportunity to respond to the other side’s position.

The Appellant suggested an adjournment for whatever period the Respondent needed to respond to her new ground of appeal.

The Respondent argued that it was too late for the Appellant to raise a new ground of appeal. This was especially so as I had previously allowed the Appellant to amend her written submissions, having also allowed the Respondent to also amend its responding submissions.

Upon hearing submissions from both parties, I weighed expeditiousness, efficiency and cost effectiveness on the one hand and justice on the other. In the context of these specific circumstances, preferring that a matter be justly decided on its merits, but respecting the further tenets of Rule 1.1, I was persuaded to adjourn this oral appeal hearing on the following terms:

1. Oral submissions are adjourned, peremptory to the Appellant, to a date to be set by a new delegate that may be on, before or after the parties’ proposed date of October 28, 2016.

I advised that I was retiring from the Commission. I was not persuaded by the Appellant’s submissions that I divide this appeal and decide the paragraph 38(8.2)(2) issue while another appellate officer would, at some future date, decide the section 38.2 question. It was not clear that this proposal would ultimately save any time. It was not clear that it was preferable that different persons address these two issues.

2. The exchange of further written submissions shall be as follows, as the parties jointly proposed:

(a) The Appellant, by Tuesday, May 24, 2016, shall serve on the Respondent and file with this Appeals Office (with a Statement of Service in Form F) her further written submissions that address whether the new ground of appeal (section 38.2) should be allowed to proceed and, if so, (2) the substance of the new ground of appeal.

(b) The Respondent, by Friday, July 8, 2016, shall serve on the Appellant and file with this Appeals Office (with a Statement of Service) her further written submissions regarding the issues set out in 2(a) above.

(c) The Appellant, by Friday, July 22, 2016, shall serve on the Respondent and file with this Appeals Office (with a Statement of Service) her further reply submissions, limited to the issues set out in 2(a) above.

3. The Appellant shall pay the Respondent its expenses thrown away for preparation for and attendance at this oral appeal hearing, as requested, fixed in the amount of $750 inclusive of HST, payable within 30 days of the April 7, 2016 hearing date.

Subsection 12(2) of R.R.O. 1990, Reg. 664 (the “Expense Regulation”) sets out the criteria to be considered in awarding legal expenses. I found criterion (d) of the Expense Regulation most relevant, that is, the Appellant’s conduct that prolonged the proceeding where, in a matter that began with an Application for Arbitration filed March 9, 2011, the Appellant provided no evidence or submission of having raised a section 38.2 argument until five years later at 10:30 a.m. on April 7, 2016, resulting in the need to adjourn oral submissions.

I was persuaded that the requested amount of $750 was not only reasonable, but was also a necessary term of the adjournment.

April 19, 2016

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2A May 3, 2010 Functional Abilities Examination by Dr. L. Frydman, D.C., a June 15, 2010 Chronic Pain Assessment by Drs. A. Shievitz and D. Grossi and an August 18, 2010 follow-up in-home assessment by Dr. M. Shteynberg.