Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2016 ONFSCDRS 230
FSCO A15-003924
BETWEEN:
JOHN KIRTON
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
DECISION ON A MOTION
Before: Arbitrator Thérèse Reilly
Heard: In person at ADR Chambers on May 31, 2016 and by written submissions due June 14, 2016
Appearances: Mr. Sloan Mandel for Mr. John Kirton Ms. Michelle Mainprize for Belair Insurance Company Inc.
Issues:
The Applicant, Mr. John Kirton, was injured in a motor vehicle accident on May 15, 2014 and sought accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Kirton, through his 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 issues in this Motion are:
Is Mr. Kirton entitled to an interim payment for a rehabilitation benefit in the amount of $427,751.00 and additional disbursement expenses also for home modifications, pursuant to sections 2(2) and/or 16 of the Schedule pending the hearing of the Arbitration Hearing?
Is either party entitled to their expenses for this Motion and, if so, in what amount?
Result:
Mr. Kirton is not entitled to an interim payment for a rehabilitation benefit in the amount of $427,751.00 and additional disbursement expenses for home modifications.
The question of expenses related to this Motion is deferred to the Hearing Arbitrator.
EVIDENCE AND ANALYSIS
The Issues
Mr. Kirton is 66 years old and suffered an array of injuries and impairments as a result of the motor vehicle accident.2 He filed an Application for Arbitration on June 2, 2015 seeking a number of benefits, including rehabilitation benefits for home modifications and attendant care benefits, the latter of which is not under consideration at this Motion.
The issue in this Motion is whether the Applicant is entitled to an Interim Order for $427,751.00 in rehabilitation benefits in the nature of home modifications, plus additional disbursement expenses (collectively, “the Housing Claim”). Much of the debate involves the Insurer’s Independent Examination (“IE”) of that claim. As set-out below, the Applicant agreed to and allowed the Insurer’s IE to be conducted by a home construction engineer and housing expert, but objected to an occupational therapist (“OT”) being present at the IE.
Positions of the Parties
The Applicant maintains that the Insurer originally denied entitlement based on the need to complete a catastrophic determination (“CAT”), and now claims a denial on the basis that the Applicant failed to attend an IE which he asserts is not reasonable and is not necessary. The Applicant asserts he meets the test for interim benefits on a prima facie basis. The Applicant raises a further argument that the Insurer’s disregard of its obligations in assessing a CAT, and its disregard of the notice provisions in section 38(8) of the Schedule, are further grounds to award the interim benefits for the home modifications. Lastly, the Applicant argues the Interim Order would satisfy the goals of the Schedule which is consumer protection legislation.
The Insurer denies that its denial of the housing modifications was on the basis of a CAT, and maintains that the determination of CAT is not relevant to this claim for interim benefits. It does not concede that the Applicant has met the test for the home modifications on a prima facie basis.
The Insurer maintains that it is entitled to have an OT present at the IE to assess the home modifications, and this is the central issue in this Motion. It is not reasonable to deny the Insurer the right to have an OT assessment to assess the Housing Claim.
Most importantly, the Insurer relies on sections 44(9) and 37(7) of the Schedule as a full defence to the home modification claim. It maintains that the Applicant failed to attend a section 44 assessment, and as a result is in breach of section 44 of the Schedule. Pursuant to s. 37(7) of the Schedule, no benefit is payable.
The Insurer states the Applicant cannot obtain an Interim Order when there is a genuine argument that he failed to comply with obligations under the Schedule, and which would result in a no entitlement decision at the Hearing.
The Applicant was also seeking a further Order for production of documents, but the parties agreed the issue of productions would not be addressed at this Motion, and is left to be addressed by the Pre-Hearing Arbit