Neutral Citation: 2016 ONFSCDRS 48

FSCO A11-001373

BETWEEN:

JANICE LITTLE Applicant

and

PEMBRIDGE INSURANCE COMPANY Insurer

DECISION ON PRELIMINARY ISSUES No. 2

Before: Suesan Alves, Arbitrator

Heard: By written submissions received by June 30, 2015

Appearances: Megan Johnston for Ms. Little Sandi Smith for Pembridge Insurance Company

Issues:

The Applicant, Janice Little, was injured in a motor vehicle accident on October 16, 2008. She claimed statutory accident benefits from Pembridge Insurance Company (“Pembridge”), payable under the Schedule.¹ At this hearing, Pembridge seeks an Order that Ms. Little’s claims for attendant care benefits and medical and rehabilitation benefits are time barred. While Ms. Little agrees that one of her claims for medical benefits is time barred, she otherwise disputes the relief Pembridge seeks.

The Preliminary Issues are:

Is Ms. Little precluded from proceeding to arbitration with her claims for attendant care benefits because her application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Act and subsection 51(1) of the Schedule?
Are Ms. Little’s claims for attendant care in the amount of $842.96 per month which was denied on June 14, 2012 and on June 19, 2012 time barred?
Are Ms. Little’s claims for the following medical and rehabilitation benefits time barred?

a. $315 for Orthovisc intra-articular injections treatment plan by Vitality Rehab and Wellness dated October 14, 2011 denied on October 28, 2011;

b. $1,383.82 for occupational therapy treatment plan dated April 4, 2012 denied on April 18, 2012;

c. $1,034.35 for occupational therapy treatment plan by Samantha Glowinski, dated September 27, 2011 denied on October 11, 2011;

d. $2,730.57 for treatment/assistive devices treatment plan by Rehability Occupational Therapy dated June 13, 2012, denied on June 14, 2012;

e. $3,000 for cervical spine and lumbar decompression treatment plan dated July 20, 2012denied on July 31, 2012;

f. $3,000 for cervical spine and lumbar decompression dated November 18, 2011 denied on December 1, 2011

g. $3,000 for mobilization of spinal vertebrae dated January 25, 2013 denied on February 1,2013

h. $3,000 for mobilization spinal vertebrae treatment plan dated May 10, 2013 and denied on May 16, 2013.
If Ms. Little’s claims are timely, should the disputes be added to the agenda of issues to be arbitrated?
Which party is entitled to its expenses of this hearing?

Result:

Ms. Little’s claims for attendant care benefits are timely.
With the exception of the claim of $1,034.35 for occupational therapy by Samantha Glowinski, dated September 27, 2011 which was denied on October 11, 2011, Ms. Little’s claims for medical benefits are timely;
Ms. Little’s timely claims are added to the agenda of issues to be arbitrated.
The expenses of this hearing are left in the discretion of the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Background and Position of the Parties

Ms. Little was injured in a motor vehicle accident on October 16, 2008 and claimed statutory accident benefits from Pembridge payable under the Schedule. In April 2011, she filed an arbitration application in which she claimed non-earner benefits, medical benefits, housekeeping benefits, the cost of examinations, interest, expenses and a special award.

According to the Explanation of Benefit Forms filed by the Applicant, Pembridge denied Ms. Little’s claims for attendant care benefits and for additional medical benefits which are the subject of this hearing between October 11, 2011 and May 18, 2013. Ms. Little applied for mediation in relation to those disputes on October 18, 2013, however, they were not resolved. The Report of Mediator was issued on January 13, 2014.

In a letter dated January 30, 2014, counsel for the Applicant requested the addition of the attendant care and additional medical benefits to the existing arbitration. In that letter, counsel for the Applicant enclosed a copy of the Report of Mediator and advised that Pembridge was consenting to the request. On February 11, 2014 counsel for the Insurer responded that she had not been asked to consent to the addition of the issues and stated that her client objected because the addition of these issues would jeopardize the arbitration hearing dates. At that time, the hearing was scheduled to commence on April 28, 2014. On March 3, 2015, counsel for the Applicant requested an adjournment of the hearing to permit the addition of issues, and the adjournment was granted on consent.

At the resumption of the pre-hearing, Pembridge took the position that the limitation period had passed in relation to the issues Ms. Little wished to add, and requested a preliminary issue hearing to determine that question. Counsel for the Insurer submits that the Applicant must either ensure that the Commission adds the issues before the limitation period expires or file a Form C Application for Arbitration before that date or her claims will be statute barred.

Counsel for the Applicant agreed that one of the issues was time barred; but took the position that the remaining disputes were timely. She submits that because she requested the addition of the issues before the expiry of the extended 90 day period following the Report of Mediator, Ms. Little’s claims are not time barred. In the alternative, she submits that Ms. Little should not be prejudiced by the Commission’s failure to notify her counsel that the letter request was defective or by failing to add the issues before the limitation period expired.

Analysis and Findings

For the following reasons, I conclude that:

Ms. Little is permitted to add issues to the existing arbitration by letter;
The limitation period is determined as of the date on which the Applicant submitted the request letter and Report of Mediator to the Commission;
And with the exception of one treatment plan in the amount of $1,034.35, the issues are not time barred and should be added to the agenda of issues to be arbitrated.

Counsel for Pembridge relies on the arbitration decision of Ng and State Farm (FSCO A11-001402, February 24, 2014), as authority for the submission that:

The applicant’s delivery of a letter requesting the addition of new issues to an arbitration is not sufficient to commence arbitration. …. It is the applicant’s responsibility to take the required steps to either add the issues on consent or deliver an application for arbitration in a timely fashion. If she does not do so, the claim will be considered statute barred.

The Ng case dealt with the question of whether a request made by letter, to add a benefit dispute to an existing arbitration two days before the Report of Mediator had been issued, could be added to an arbitration to avoid a limitation defence. Arbitrator Robinson held that the Applicant had no standing to make the request to add issues because mediation had not taken place and the Report of Mediator had not been issued at the time the letter was sent to the Commission. In addressing one of the other arguments raised by the Applicant, the Arbitrator stated:

Applicant’s counsel …alleged that it was a practice before the Commission to add issues by way of correspondence.

Arbitrator Robinson held that the content of the letter sent on behalf of the Applicant, in that case was such that it was not a request to add issues; that the letter was not analogous to an Application for the Appointment of an Arbitrator in Form C; and that a letter could not be used to commence an arbitration because the Form C was a required form.

To the extent that the Insurer’s submissions are supported by the Ng decision, I respectfully disagree with the reasons of Arbitrator Robinson in that case. I approach the question of adding issues in a different manner.

I find that there is a longstanding practice in the Arbitration Unit of adding issues to an existing arbitration following a request made by letter; and that the practice appears to be permitted by the Dispute Resolution Practice Code, Fourth Edition - Updated January 2014 as well as earlier versions of the Code. I find that provided the issues have been mediated and the letter request is made to add the issues before the limitation period expires, the issues are not time barred.

Adding Issues --The practice

When there is an existing arbitration application and additional disputes arise between the same parties relating to the same date of loss, once those disputes have been mediated, parties request the addition of issues to the agenda of issues to be arbitrated by letter accompanied by the Report of Mediator to the Case Administrator. The Case Administrator contacts the other party and asks for their position on the request in writing. When that response is received, the letters from both parties are sent to an arbitrator for a determination as to whether the issue(s) should be added. Where there is a dispute, the arbitrator determines the question. In all of these cases, no additional filing fees are paid by either party.

However, once the hearing on substantive issues has been held then a party who seeks to add an issue is informed by the Case Administrator that it is too late to add the issues to the arbitration, and a Form C must be filed. A fresh arbitration file is opened and both parties must pay fresh filing fees.

Is the practice permitted by the Code?

Section A of the Dispute Resolution Practice Code (the “Code”) contains six Parts:

Part 1 provides General Rules for Dispute Resolution;
Part 2 addresses Mediation;
Part 3 addresses Arbitration and Neutral Evaluation;
Part 4 addresses Appeals of Arbitration Orders;
Part 5 addresses Variation or Revocation of an Order, and
Part 6 addresses .General Procedures for Hearings.

I find that there is no specific provision which deals with adding issues in an Arbitration proceeding in Part 3. However, there is such a Rule in Part 2 which addresses the addition of issues in Mediation. Rule 15.2 states:

15.2 Where either party wishes to add an additional issue to a mediation, they must provide a written request identifying the new issue to the mediator and the other party at least 10 days prior to the scheduled date of the mediation meeting. Thereafter, issues may be added on the consent of all parties. .

Although Part 3 of the Code which addresses Arbitrations does not contain a Rule for adding issues Rule 1.2 of the Code states that:

Where something is not specifically provided for in these Rules, the practice may be decided by referring to similar Rules in this Code

It would appear then that the practice of adding issues, based on a written request which identifies the new issues, has been adopted in the Arbitration Unit based on the practice permitted in Rule 15. 2 of the Dispute Resolution Practice Code and the application of Rule 1.2. As mediators do not have the authority to determine a dispute, Rule 15.2 provides for the addition of issues, on consent of all parties, where the request is made less than ten days before the scheduled date of the mediation meeting. Arbitrators have the authority to determine such disputes and do so. See for example, Carby and Co-operators General Insurance Company (OIC A90-950220, January 12, 1996); Graham and State Farm Mutual Automobile Insurance Company(FSCO A04-002268 July 26, 2005); Ponnapalam and RBC General, (FSCO A05-001972, June 8, 2007)

No additional fees are charged to either party when they seek to add issues to an existing arbitration. This reflects a savings of $100 for Applicants and of $3,000 for Insurers. .The practice of adding issues to the agenda of issues to be arbitrated and scheduling all of them for one hearing is less costly to the parties and therefore, contributes to the least expensive resolution of the dispute as required by Rule 1.1 of the Code. That Rule states:

These Rules will be broadly interpreted to .produce the most just, quickest and least expensive resolution of the dispute.

The practice makes efficient use of the Commission’s resources and as one hearing is held, it avoids inconvenience to witnesses who would otherwise be required to give evidence at multiple hearings.

Determining the practice to be followed based on a similar provision contained in another Rule in the Code has been done in other cases. For example, Rule 30 of the Code which deals with combining arbitration applications, contained in Part 3 of the Code has been applied in the Appeals context where there is no similar provision in Part 4 of the Code.

In Intact et. al. and Aweys et al, (FSCO P12-00007 – P12-00021, June 18, 2012), Delegate Blackman was asked to combine several appeals from arbitration Orders. Although there was no specific provision in the Appeals part of the Code, which addressed the combining of appeals, he combined them on the basis that this was permitted under Part 3 of the Code which deals with Arbitration and Neutral Evaluation and applied Rules 1.2 and 30 of the Code. He stated:

Rule 30 of the Code addresses combining two or more Applications for Arbitration. There is no specific equivalent for appeal proceedings. Rule 1.2, however, provides that where something is not specifically provided for in the Code, the practice may be decided by referring to similar Rules.

Having provided notice as required under Rule 30.1 of the Code and having received no objection from any party to combining these appeals, my May 15, 2012 letter decision combined the fifteen appeal proceedings, to be heard at the same time.

Applying the criteria of Rule 30, I was persuaded that all of the appeals had a common issue or question of law, fact or policy, namely, whether the Arbitrator had erred in law in not staying the arbitrations based on the concurrent court action. Two appeals had a further common issue of whether the Arbitrator had erred in law in not staying the hearing for non-attendance at examinations under oath. Further, combining these appeals would result in the quickest and least expensive means of dealing with these appeals.

Legitimate Expectation

If I am wrong, and the Code does not provide authority for the practice of adding issues by letter, I nevertheless find that the step Ms. Little took was in accordance with the practice which has developed in the Arbitration Unit where parties request the addition of issues to an existing arbitration application.

In Ng, the Arbitrator stated that:

Counsel for the Applicant alleged that it was a practice before the Commission to add issues by way of correspondence.

This suggests some degree of doubt as to the existence of the practice.

I am satisfied that such a practice exists, and that it has been in existence in the Arbitration Unit for several years. In my view, that practice has given rise to a legitimate expectation of parties that the Commission will continue that practice and not abandon it without notice to parties and their representatives.

In Baker v. Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paragraph 26, the Supreme Court of Canada held that the doctrine of legitimate expectation:

As applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

Thus, it would be unfair to change the practice of adding issues by way of a letter and Report of Mediator without prior notice. As no such notice has been provided by the Commission, fairness requires that I follow the existing practice.

Limitation Period

The final question I need to address is whether the limitation period is to be determined as of the date the request to add issues is received by the Commission, or whether it is determined as of the date the Commission adds issues.

In my view, it is the filing of the request to add issues which must be done before the limitation period expires. This places responsibility for this step where it lies — on the party seeking to add the issues.

This is the way in which the limitation period is determined in relation to the Form C Application for the Appointment of an Arbitrator— by reference the date on which the application is received by the Commission — not by reference to the date of the pre-hearing or the date of the pre-hearing report which identifies the issues agreed upon by the parties or determined by the arbitrator.

The filing of the Form C is a discrete step from the identification of the issues to be arbitrated which takes place at the pre-hearing. Similarly, making a request by letter to add issues to the agenda of issues to be arbitrated is a discrete step from the determination as to whether the issues should be added. In my view the position that the limitation period should be determined as of the date issues are added conflates a procedural step with an adjudicative one.

I am not persuaded that a different or more onerous standard should be imposed in determining a limitation period where requests to add issues are made by letter instead of by a Form C.

Section 281.1(1) of the Insurance Act, R.S.O. 1990, c.I.8 as amended, requires the commencement of mediation and arbitration within two years from the date the Insurer denies benefits. However, section 281.1(2)(b) provides that where an application for mediation is submitted within two years from the date of denial, the Applicant has a further 90 days from the date the mediator reports to the parties to commence an arbitration application.

There is some discrepancy in the dates of the denials as between the parties. Where they vary, I have used the denial dates in the Explanation of Benefit forms which Pembridge created and which were filed in the Applicant’s materials.

I find that the benefits in question were denied between October 11, 2011 and May 18, 2013. Ms. Little applied for mediation on October 18, 2013. The treatment plan for occupational therapy in the amount of $1,034.35 which was denied on October 11, 2011, is out of time because the mediation application was filed more than two years after Pembridge denied that benefit. Ms. Little cannot arbitrate this claim.

I find that the application for mediation was filed within two years from the dates of the denial of the remaining benefit disputes. The Mediator reported to the parties on January 13, 2014 and the limitation period was therefore extended by 90 days from that date. Ms. Little requested the addition of issues on January 30, 2014. I am satisfied that the letter requested the addition of issues, particularized each benefit dispute and enclosed a copy of the Report of Mediator. Ms. Little’s claims for attendant care and her remaining claims for medical and rehabilitation benefits are therefore timely and she may proceed to arbitrate these claims.

Should the Issues be added?

At the time Ms. Little filed her arbitration application in Form C, she claimed entitlement to ‑non-earner benefits, medical benefits, housekeeping and home maintenance benefits, cost of examinations, interest, expenses and a special award. The issues she seeks to add are her claims for attendant care and for various medical and rehabilitation benefits.

The attendant care benefit issue is a new category of benefit. The Insurer raises procedural defences. Given the nature of the test for non-earner benefits claimed in her Form C application, I anticipate that the evidence to be called in relation to entitlement to non-earner benefits will likely overlap to a significant degree with the evidence to be called in relation to her claims for attendant care. At the pre-hearing, 13 treatment plans were identified. The 7 additional treatment plans which are timely will likely require additional evidence of a similar nature. While the addition of these claims will require some additional hearing time to deal with the additional evidence, the addition of these issues will not delay the arbitration proceeding.

I find that the timely issues should be added to the agenda of issues to be arbitrated because hearings are costly to the parties and where possible one hearing should be held, instead of multiple hearings. It is cheaper for the parties, more convenient for the witnesses and makes better use of adjudicative resources. I am persuaded that these considerations are of greater weight than the need for additional hearing time.

Pembridge objected to the inclusion of the issues on the basis that the arbitration hearing dates would be jeopardized. That consideration no longer exists as the parties obtained an adjournment of the hearing, on consent, for the purpose of adding issues. Counsel then agreed to vacate the rescheduled hearing dates when this preliminary issue hearing was scheduled. Further, in my decision on preliminary issue hearing No. 1, I stayed the arbitration hearing pending Ms. Little’s attendance at an insurer examination.

Expenses

I leave the expenses of this hearing in the discretion of the hearing arbitrator

February 8, 2016

Suesan Alves Arbitrator

Financial Services Commission of Ontario