Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 222

FSCO A16-000395

BETWEEN:

MARIA GUGLIELMI

Applicant

and

NORTHBRIDGE GENERAL INSURANCE CORPORATION

Insurer

Before: Sudabeh Mashkuri

Heard: By way of written submissions, June 24, 2016

Appearances: Aliza Karoly for Mrs. Guglielmi

Daniel Himelfarb for Northbridge General Insurance Corporation

Issues:

The Applicant, Maria Guglielmi, was injured in a motor vehicle accident on April 23, 2014. She applied for and received statutory accident benefits from Northbridge General Insurance Corporation (“Northbridge”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Guglielmi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Is Mrs. Guglielmi incapacitated under S.10 of the Dispute Resolution Practice Code (the “Code”) and therefore precluded from proceeding to arbitration?
Whether the Applicant’s daughter, Ms. Ornella Guglielmi can be designated as a guardian for Mrs. Guglielmi for the purpose of this arbitration?

Result:

Mrs. Maria Guglielmi is incapacitated under Rule 10 of the Code.
I appoint Ms. Ornella Guglielmi, the Applicant’s daughter, to act on behalf of the Applicant in these proceedings.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion in this case was held on March 22, 2016. At the pre-hearing discussion, Ms. Ornella Guglielmi, the Applicant’s daughter participated on behalf of her mother. She informed me that her mother has dementia and resides at a senior’s home and would not be present at the pre-hearing discussion and that she has been representing her mother’s interests for several years. I asked Ms. Karoly, legal counsel for the Applicant, to file a motion and supporting documentation with regards to the capacity of the Applicant and why her daughter should be appointed by me as her representative for the purposes of this arbitration.

Ms. Karoly sent a cover letter and 3 documents in June 2016 with regards to the issue of capacity. I did not receive a motion record from the Applicant’s representative or any documents from Northbridge. The cover letter does not appear to have been copied to Northbridge. However, during the pre-hearing discussion I was advised by Northbridge that it did not oppose Ms. Ornella Guglielmi being appointed as a representative of the Applicant for the purposes of the arbitration hearing.

The documents attached to the cover letter are the following:

A copy of a Statement of Claim stating that Ornella Guglielmi is the litigation Guardian for Maria Guglielmi
Excerpts from a file from the Applicant’s nursing home that states there is power of attorney on file for the Applicant’s care and finances
A copy of a recent IE which discusses the Applicant’s pre-accident dementia diagnosis

Although Ms. Karoly did not ask me to consider the Code in designating the Applicant’s daughter as a representative for the purpose of the arbitration, I am bound by the Code in my decision. The relevant portions of Rule 10 of the Code state as follows:

10.1 Subject to Rule 10.2, a party to a meditation, settlement discussion, neutral evaluation or proceeding is presumed to have the mental capacity to manage his or her property, appoint and instruct a representative, and conduct his or her own case.

10.3 Where an adult party has not been declared mentally incapable under the provisions of the SDA, but exhibits signs of mental difficulty during the course of a mediation, settlement discussion, neutral evaluation or proceeding, either party may request a hearing on a preliminary issue, or the Dispute Resolution Group may direct a hearing on a preliminary issue to determine whether:

(a) the party has the mental capacity to proceed in the dispute resolution process; or

(b) there is a person such as a spouse, same sex partner, near relative, close friend or a professional such as a doctor, lawyer, or business entity, such as a trust company, who has make a or intends to make arrangements for the appointment of a guardian over the party’s property under the provisions of the SDA.

10.4 Parties shall be given written notice of the hearing on a preliminary issue to inquire into a party’s mental capacity to proceed in the dispute resolution process.

10.5 Where an adjudicator is not satisfied that a party has the mental capacity to proceed in the dispute resolution process, and there is no attorney or person such as described in Rule 10.3(b) and (c) the adjudicator may appoint a spouse, same sex partner or near relative of the party to act on the parties’ behalf if that person, if in the adjudicator’s opinion, is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of the party who has exhibited signs of mental difficulty.

Ms. Karoly provided several documents, as noted above that indicate the Applicant has dementia and is incapable of providing instructions. I was not sent medical documentation with regards to the cognitive functioning of the Applicant or a diagnosis of dementia. However, I have a copy of an IE that indicates that the Applicant suffers from dementia. Further, the Applicant’s daughter at the pre-hearing discussion stated that she has been representing her mother’s interests for several years and has been the decision maker for her mother with regards to her legal, health care, and finances. Further, Ms. Ornella Guglielmi stated at the pre-hearing discussion that she is capable and willing to represent her mother’s interests in the arbitration process. I have taken into consideration Rule 10 of the Code as cited above and I find that I have jurisdiction to appoint Mrs. Guglielmi’s daughter, Ornella Guglielmi, as guardian for her mother. Therefore I am satisfied that the Applicant does not have the mental capacity to proceed in the dispute resolution process. I appoint her daughter, Ms. Ornella Guglielmi to act on her behalf.

August 19, 2016

Sudabeh Mashkuri

Arbitrator

Date