Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 223
FSCO A14-009896
BETWEEN:
N.D.M.
Applicant
and
UNIFUND ASSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Arbitrator Deborah Anschell
Heard:
In person at ADR Chambers on June 21, 2016 and by written submissions received June 21, 2016
Appearances:
N.D.M. participated
Ms. Veronika Hamza participated for N.D.M.
Mr. Geoffrey Keating participated for Unifund Assurance Company
Issues:
The Applicant, N.D.M., was injured in a motor vehicle accident on September 30, 2012 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation and the Applicant, through her 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 issue in this Preliminary Issue Hearing is:
- Is the Applicant a party under disability as set out in Rule 10 of the Dispute Resolution Practice Code?
Result:
- The Applicant is not a party under disability as set out in Rule 10 of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
Background
This matter was the subject of three Pre-Hearing discussions before me. The first took place in-person before me on May 26, 2015. On that occasion, the Applicant did not attend. Her counsel, Ms. Hamza, advised me that the Applicant was in the hospital at that time for mental health issues. It was agreed that the Pre-Hearing would resume on August 18, 2015 so that more fruitful settlement discussions could take place.
We resumed on August 18, 2015, in-person as scheduled. On that date, the Applicant was in attendance. Her counsel raised a concern about the Applicant’s mental capacity. Ms. Hamza advised that she would be communicating with the Applicant’s then-treating psychiatrist, Dr. Werry, to obtain further information with respect to the Applicant’s mental capacity. It was agreed that a mental capacity assessment might be required in order to proceed further. We adjourned the Pre-Hearing to resume before me again on January 15, 2016.
The third Pre-Hearing discussion in this case was held on January 15, 2016, by way of teleconference. The Applicant did not participate. Unfortunately, on this occasion, Ms. Hamza had no further information to address the issue of the Applicant’s mental capacity. Accordingly, we set a Preliminary Issue Hearing to take place before me in person on June 21, 2016. Further, the Arbitration Hearing was scheduled to take place on February 6-8, 2017. The Preliminary Issue Hearing took place before me as scheduled on June 21, 2016 at ADR Chambers.
Rule 10 of the Dispute Resolution Practice Code deals with a party under a disability. The relevant portions of the Rule to this case state:
10.1 … a party to a mediation, 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.
10.2 [Omitted]
10.3 Where an adult party has not been declared mentally incapable under the provisions of the SDA [the Substitute Decisions Act, 1992], 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;
The Applicant’s Position
Ms. Hamza’s position is that the Applicant has the mental capacity to proceed with the dispute resolution process. She has not yet obtained a mental capacity assessment. However, she has communicated with the Applicant’s treating psychiatrist, Dr. Phillip Maerov, Staff Psychiatrist, Humber River Hospital.
Ms. Hamza presented two letters from Dr. Maerov. The first letter is dated January 15, 2016. In this correspondence, Dr. Maerov is equivocal. He notes as follows:
Please understand that capacity is a state that fluctuates depending on many factors. A person may be capable at the time of one assessment, but may not have been capable at an earlier time.
He concludes as follows:
Based on the above, I am afraid I cannot give you an informed opinion about N.D.M.’s capacity. I am not certain which aspect of capacity is at issue here. I can only comment on her capacity regarding the above matters as they relate to the occasions that I have had clinical contact with her.
In response to this letter, Ms. Hamza wrote to Dr. Maerov on January 25, 2016, inquiring as follows:
Can you please let us know whether as per the last time you treated this patient, she has capacity to give instructions.
In reply, Dr. Maerov wrote to Ms. Hamza on February 2, 2016. The entirety of his response is as follows:
In reply to your letter dated January 25, 2016, I have no grounds to think that N.D.M. was not capable to give instructions at the time of my last encounter with her.
Ms. Hamza submits that the Applicant is capable of making her own decisions. She understands the nature of this proceeding.
Unifund’s Position
In its written submissions, Unifund points to several medical productions that cause strong concerns regarding the Applicant’s capacity. An Ontario Court of Justice Form 2, dated May 13, 2015, notes that the Applicant had threatened to do harm to herself and others, and was showing a lack of competence to care for herself. The Form notes that she was deemed incapable of consenting to her treatment and was given a substitute decision maker.
An Admission Note from Humber River Regional Hospital, dated May 14, 2015, notes that the Applicant was combative and had to be physically restrained. The Applicant displayed incoherent thoughts.
A Psychiatric Consultation from Humber River Regional Hospital, dated August 23, 2015, indicates that the Applicant’s admissions for the year were primarily due to her manic behaviour, that she has been chronically non-compliant with her medications, and that she has engaged in a number of erratic behaviours including losing her car, drinking more, and spending erratically/excessively.
Unifund submits that based on the medical evidence and the events that have taken place to date, there are strong concerns regarding the Applicant’s ability to understand information that is relevant to making a decision in the management of her property, and whether she is able to appreciate the reasonably foreseeable consequences of her decision or lack thereof.
Unifund relies on the decision L.G. and Lombard General Insurance Company of Canada (FSCO A09-000531, January 28, 2010). In that decision, Arbitrator Wilson stated at pp. 8-9 as follows:
The test for interfering with the autonomy of an individual, to the extent of requiring him or her to be represented by a litigation guardian if an insured wishes to pursue an accident benefit claim at arbitration is not however one of the “best interest” of the party in question. Rather it is whether there is evidence before the arbitrator that would justify the conclusion that L.G. is “not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
Findings
From my review of the medical documents referred to by Unifund, I can conclude that the Applicant has a history of bipolar affective disorder. She has had several admissions at Humber River Hospital and at CAMH. Her last admission prior to May 13, 2015 was in 2012. The Applicant’s hospital admissions have been due to grossly manic behaviour and bipolar disorder. In addition, she has shown to be non-compliant with medication. However, the diagnosis does not in itself determine capacity. As noted by Arbitrator Wilson:
It goes without saying that there is not necessarily a direct relation between diagnosis and
capacity, since the effects of mental illness may be mitigated by treatment, may be in
remission, or may not ultimately affect the reasoning capacity of an individual.2
At the Preliminary Issue Hearing, in response to my questions, the Applicant advised that she currently sees her treating psychiatrist, Dr. Maerov, once a month. She is presently taking medication, and receiving psychiatric counselling.
I am mindful of Dr. Maerov’s correspondence of February 2, 2016 wherein he indicates that he had no grounds to think that the Applicant was incapable of giving instructions at the time of her last appointment. This is the most recent evidence, and comes from her current treating psychiatrist. Based upon this statement, I do not have enough evidence to conclude that the Applicant does not have capacity to instruct her counsel. It would have been helpful to have a report by a qualified assessor addressing capacity in a litigation context, but none was presented by either party.
As noted by Arbitrator Wilson in L.G. and Lombard General Insurance Company of Canada:3
It is clear from the jurisprudence that any consideration of limiting the autonomous rights of a party to engage in litigation should only be considered on the basis of hard evidence rather than mere supposition. While a judge or an arbitrator may observe and record behaviour, adjudicators rarely have either the qualifications or training to interpret such observations without some medical context.
Rule 10.1 of the Dispute Resolution Practice Code states that “a party to a mediation, 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”. The evidence before me at the Preliminary Issue Hearing has not refuted the presumption of the Applicant’s capacity.
Based on the evidence before me, the provisions of the Dispute Resolution Practice Code, and the capacity case reviewed, I find that the Applicant is able to understand the dispute resolution process and has the capacity to instruct her representative, and to proceed with the dispute resolution process.
EXPENSES:
Given the nature of this interim decision, I make no order as to expenses.
August 22, 2016
Deborah Anschell
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 223
FSCO A14-009896
BETWEEN:
N.D.M.
Applicant
and
UNIFUND ASSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
- N.D.M. is not a party under disability as set out in Rule 10 of the Dispute Resolution Practice Code.
August 22, 2016
Deborah Anschell
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- L.G. and Lombard General Insurance Company of Canada, supra, at p. 8.
- Ibid., at p. 5.