Neutral Citation: 2016 ONFSCDRS 34

FSCO A13-013427

BETWEEN:

DARWIN BECKLES Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Barry S. Arbus, Q.C.

Heard: In person at ADR Chambers on December 8, 2015

Appearances: Mr. Darwin Beckles participated Mr. Petros Yannakis for Aviva Canada Inc.

Issues:

The Applicant, Mr. Darwin Beckles, was injured in a motor vehicle accident on July 2, 2012 and sought accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Beckles, 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 Preliminary Issue Hearing are:

Does the Applicant have the mental capacity to proceed in the dispute resolution process?
If not, should Mr. Rudolph Beckles, the Applicant's brother, be appointed to act on the Applicant's behalf pursuant to Rule 10.5 of the Dispute Resolution Practice Code?
Is either party entitled to its expenses relating to this Preliminary Issue Hearing?

Result:

The Applicant does not have the mental capacity to proceed in the dispute resolution process.
Pursuant to Rules 10.1 and 10.5 of the Dispute Resolution Practice Code, Mr. Rudolph Beckles, the Applicant's brother, is appointed to act on the Applicant's behalf in the dispute resolution process.
The question of expenses relating to the Preliminary Issue Hearing is deferred to the discretion of the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Evidence

The Applicant gave oral evidence. He is a 69 year old with a very engaging demeanour. The Applicant is married and he and his wife live on their own in an apartment in Toronto. He gave very credible evidence about his background, work career and his retirement from work. He remembered the incident in question of July 2, 2012. He went to the Emergency Department of University Health Network after the accident, followed up with his doctor and recalled the subsequent events which followed. The Applicant admitted that at times he was forgetful which is why he failed to attend a number of the Pre-Hearings and other appointments scheduled in the dispute with Aviva.

Mr. Yannakis then questioned the Applicant in greater detail, specifically about his work career and medical history, including medical records. It became clear from the totality of the evidence – both the Applicant's testimony and medical records – that the Applicant was suffering from memory loss and early dementia before the accident in question. Mr. Yannakis produced medical records from the Applicant's family doctor prior to the accident confirming the diagnosis, all of which was confirmed by the Applicant. The Applicant acknowledged that he relied both on his wife and his brother, Rudolph Beckles, to assist him in ensuring he did not miss appointments and other important events. The medical report of Dr. Andres, dated September 9, 2013, addressed to the Applicant's family doctor confirms that the Applicant has consistently suffered slight forgetfulness but he is able to perform independent functions such as shopping, is capable of self-care, but confirms that there is early mild dementia.

Mr. Rudolph Beckles, the Applicant's younger brother, then gave evidence. Rudolph Beckles is a nurse by training and is currently employed by the Toronto Transit Commission as a driver trainer. His testimony is that he has watched his brother suffer through progressive early dementia over the past number of years. He acknowledged that his brother is capable of performing most day-to-day functions including shopping and daily walks, but finds his forgetfulness impedes many activities. Because of his flexible work schedule, Mr. Rudolph Beckles is able to assist the Applicant with much of his decision-making.

When I pointed out the provisions of Rule 10.5 of the Dispute Resolution Practice Code, Mr. Rudolph Beckles indicated his willingness to act as the party to receive and administer statutory benefits on behalf of his brother. The Applicant verbalized his consent to having his brother act in this capacity, as did the representatives of Aviva.

Analysis and the Law

Rule 10.1 of the Dispute Resolution Practice Code states that:

Subject to Rule 10.2, 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.

Rule 10.3 states that:

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;

(b) there is an attorney with a valid continuing power of attorney over the party's property; or

(c) 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 made or intends to make arrangements for the appointment of a guardian over the party's property under the provisions of the SDA.

In the current file, there was concern on the part of the Insurer as to Mr. Beckles' mental capacity because he had exhibited signs of mental difficulty during the course of the proceedings. Accordingly, there was a request for a hearing on the preliminary issue to determine Mr. Beckles' mental capacity to proceed.

Rule 10.5 further provides:

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 party's behalf if that person, 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.

The Applicant and his brother, Rudolph, were both excellent and forthcoming witnesses. It is clear that there is a very close relationship between the two, a very caring attitude by Rudolph Beckles towards his brother, Darwin Beckles. Mr. Yannakis provided the cases of M. v. Pembridge,² and Jagdeo v. Royal & SunAlliance³ to support the process being initiated.

Conclusion

I am satisfied that, pursuant to Rule 10.3, the Applicant lacks the mental capacity to proceed in the dispute resolution process. Based on the evidence submitted, pursuant to Rule 10.5 of the Dispute Resolution Practice Code, and supported by the Applicant's consent to appoint his brother under Rule 10.1, I find it appropriate to appoint Rudolph Beckles to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of the Applicant. Mr. Rudolph Beckles is willing to assume the responsibility of acting on behalf of his brother in his Arbitration and is both willing and able to proceed in this matter.

Accordingly, pursuant to Rule 10.5, I appoint Rudolph Beckles to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of the Applicant.

EXPENSES:

The question of expenses related to this Preliminary Issue Hearing is deferred to the discretion of the Hearing Arbitrator.

January 21, 2016

Barry S. Arbus, Q.C. Arbitrator

Financial Services Commission of Ontario