Dehui Liu v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 329

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 329

FSCO A15-002220

BETWEEN:

DEHUI LIU

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Arbitrator Knox M. Henry

Heard:

By written submissions completed on October 27, 2016

Appearances:

Mr. Dehui Liu participated

Mr. Kevin Lin participated for Mr. Dehui Liu

Ms. Kathleen F. O’Hara participated for the Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Dehui Liu, was injured in a motor vehicle accident on September 7, 2014 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Liu, through his representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Motion are:

Should this Application for Arbitration be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code (“the DPRC”)?
Is Mr. Liu entitled to add additional issues to this Application for Arbitration?
Is Mr. Liu entitled to a special award?
Should expenses be granted for this Motion?

Result:

This Application for Arbitration is dismissed pursuant to Rule 68 of the DPRC.
Mr. Liu is not entitled to add additional issues to this Application for Arbitration.
Mr. Liu is not entitled to a special award.
No expenses are granted with respect to this Motion.

EVIDENCE AND ANALYSIS:

I conducted a Pre-Hearing discussion in this case on September 27, 2016, at the offices of the ADR Chambers. Mr. Liu was present. Counsel for Wawanesa stated that it wished to bring a Motion to dismiss Mr. Liu’s Application for Arbitration pursuant to section 68 of the DRPC. Counsel for Mr. Liu opposed such a Motion. After some discussion, I ruled that the parties were to provide written submissions to me, pursuant to section 68.3 of the DRPC, following which I would issue a written decision.

Section 68 of the DRPC states:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

(a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and

(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.

By letter, issued on October 4, 2016, and sent to Mr. Liu and to both counsel by regular and registered mail, I ordered that written submissions were to be received by me no later than October 27, 2016.

Submissions of the Insurer

Counsel for Wawanesa submitted that in the original Application for Arbitration, dated April 9, 2015, only four items were to be determined by the Arbitrator as Mr. Liu sought:

Attendant Care Benefits in the amount of $7,878.68 per month, pursuant to the provisions of section 19 of the Schedule.
Interest on all outstanding amounts at the rate of 1%, compounded monthly.
Costs of the Hearing.
A special award with respect to the delay of benefits.

Counsel for Wawanesa submitted that this Application for Arbitration is frivolous pursuant to Rule 68.1 of the DRPC as Wawanesa has paid Attendant Care Benefits to Mr. Liu to the policy maximum of $36,000.00 for a non-catastrophic injury. Payment of these benefits had commenced on October 17, 2014 and Wawanesa contends that Mr. Liu is not entitled to any further Attendant Care Benefits.

Wawanesa had raised a preliminary issue that Mr. Liu is not permitted to mediate the issue of additional Attendant Care Benefits, pursuant to section 55.2 of the Schedule, as Wawanesa had provided a notice to Mr. Liu, in accordance with the Schedule, that it required an examination under section 44 of the Schedule, and Mr. Liu had not presented himself for that examination, as required.

Submissions of the Applicant

Counsel for Mr. Liu stated that Mr. Liu was planning to file an application that his injuries should be deemed as catastrophic. He submitted that an OCF-19 was completed by Dr. Regina Liu on June 2, 2016, which deemed Mr. Liu catastrophic, and a further OCF-19 was completed by Dr. Chern Lim on August 20, 2016, which also deemed Mr. Liu catastrophic.

I find that neither of these applications had been completed or submitted to Wawanesa prior to March 31, 2016, which was the cut-off date set by FSCO to add any issues to a pending Arbitration. Thus, the issues, in this proceeding, cannot be expanded to include the question of whether Mr. Liu’s injuries should be deemed catastrophic.

I find there was no dispute that Wawanesa had paid Mr. Liu Attendant Care Benefits up to the policy limits, and Mr. Liu is not entitled to further amounts under the Schedule in the present circumstances.

I am not persuaded by Mr. Liu’s submission that Wawanesa should continue to pay Attendant Care Benefits simply because there is a possibility that his potential application for catastrophic impairment might accepted by Wawanesa. There is no guarantee that Wawanesa would agree to deem Mr. Liu’s injuries as catastrophic. Should Mr. Liu file an application for catastrophic impairment, it must, at this time, be filed in some other jurisdiction, such as the License Appeal Tribunal.

Since Wawanesa has paid all Attendant Care Benefits due to Mr. Liu, there are no outstanding amounts at this time and thus no interest due to Mr. Liu.

There is no evidence that Wawanesa has unreasonably delayed payments of benefits to Mr. Liu. Thus, I see no basis to entertain consideration of a special award.

I dismiss Mr. Liu’s Application for Arbitration.

EXPENSES:

As my activity, in this matter, has only been to conduct a Pre-Hearing discussion and receive submissions on a Motion to dismiss this Application for Arbitration, I see no reason to award costs at this time.

December 7, 2016

Knox M. Henry

Arbitrator

Date