Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 8

FSCO 14-004712

BETWEEN:

JOHN KENNEDY

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: Jessica Kowalski

Heard: November 26, 2015, in Ottawa, Ontario.

Appearances: Mr. Kennedy, by telephone Mr. Christopher F. Reil for Belair Insurance Company Inc.

The applicant, John Kennedy, was involved in a motor vehicle accident on July 9, 2009. He applied for statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ A dispute arose with respect to Mr. Kennedy’s entitlement to certain benefits, and the parties were unable to resolve their disputes through mediation. Mr. Kennedy applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O., c.I.8, as amended.

Background:

Mr. Kennedy’s application for arbitration claims a weekly non-earner benefit of $185.00 per week, plus interest, and arbitration expenses.²

In proceedings before the Commission, concerns have arisen regarding Mr. Kennedy’s capacity to represent himself and to proceed in the dispute resolution process on his own. Bolstering these concerns are Mr. Kennedy’s own comments that he has cognitive and memory issues because of head injuries from both before and as a result of the accident.

Although he was served with notice of this hearing, Mr. Kennedy did not attend at the hearing location, which was identified in the notice. I adjourned the hearing for approximately 30 minutes to give Mr. Kennedy time to attend. When he did not, I called him at his home number, and he participated by telephone. As has been the case with two previous pre-hearings (discussed below), Mr. Kennedy told me that he did not know about this hearing. This is one of the concerns that has led to questions about Mr. Kennedy’s capacity to proceed in the dispute resolution process.

Issue:

Does Mr. Kennedy have the mental capacity to proceed in the dispute resolution process?

Result:

Mr. Kennedy does not have the mental capacity to proceed in the dispute resolution process.
This hearing will resume by telephone conference call on January 29, 2016 at 10:00 a.m. so that Mr. Kennedy can advise whether he has a legal representative or whether there is a person such as a spouse, near relative, close friend or a professional such as a doctor, lawyer, or business entity, such as a trust company who:

a. is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on Mr. Kennedy’s behalf; or,

b. has made or intends to make arrangements for the appointment of a guardian over Mr. Kennedy’s property under the provisions of the Substitute Decisions Act.³

Reasons:

The first pre-hearing in this case was scheduled to be held on June 24, 2015 by telephone conference call before Arbitrator Rogers. According to the pre-hearing letter dated June 24, 2015, when Arbitrator Rogers contacted Mr. Kennedy, Mr. Kennedy told him that he was not able to participate.

Arbitrator Rogers wrote that Mr. Kennedy exhibited signs of mental difficulty that raised questions about his capacity to proceed. Mr. Kennedy could not recall filing the application for arbitration. He told Arbitrator Rogers that he was unaware of the scheduled pre-hearing (despite notice), and that he had a serious head injury that compromises his mental capacity.

Arbitrator Rogers informed Mr. Kennedy that he should consider retaining a representative and adjourned the pre-hearing to September 4, 2015. In the pre-hearing letter, Arbitrator Rogers wrote that if Mr. Kennedy did not retain a representative by the resumed pre-hearing and continued to exhibit signs of mental difficulty, he would schedule a hearing to determine whether Mr. Kennedy has the mental capacity to proceed in the dispute resolution process.

On September 4, 2015, when the pre-hearing was resumed, Mr. Kennedy did not participate. When Arbitrator Rogers called him, he got an automated answer, left a message but did not hear back from Mr. Kennedy. In his pre-hearing letter dated September 4, 2015, Arbitrator Rogers wrote that:

I have ruled that, given the established concerns regarding Mr. Kennedy’s mental capacity, the only reasonable course of action was to direct a preliminary issue hearing on the question of whether Mr. Kennedy has the mental capacity to participate in the dispute resolution process, pursuant to Rule 10.3 of the Dispute Resolution Practice Code.

Mr. Kennedy has not been declared mentally incapable under provisions of the Substitute Decisions Act (“SDA”).

Where a person has not been declared mentally incapable under the SDA, Rule 10 of the Code sets out the procedure to be followed by an adjudicator at the Commission where it appears that a party involved in the dispute resolution process may be under a disability, i.e. where the person exhibits signs of mental difficulty:

10.3 Where an adult party has not been declared mentally incapable under the provisions of the SDA [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;

(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.

I asked Mr. Kennedy a number of questions during the preliminary issue hearing about his circumstances and his understanding of his claims against Belair and of this arbitration proceeding. Mr. Kennedy explained that:

he lives alone in what he described as one room
he rarely leaves his home and spends most of his time watching TV
he has little support, no family and relies on a few friends to help him
he relies on a friend to help with groceries
he expects the insurer to pay for what happened to him, believes his claim has been proved, but says he has taken no steps to advance the claim, consult with a legal representative or obtain legal representation.

During the preliminary issue hearing, a friend came to visit Mr. Kennedy but Mr. Kennedy would not ask that friend whether he could assist him with the arbitration, instead saying he would need some time to do so. He says he has seen doctors to help advance his case.

I find that Mr. Kennedy’s understanding of the dispute resolution process is limited. He was aware that he may be entitled to benefits from the insurer. However, he became easily frustrated and overwhelmed during our conversation. Based on Mr. Kennedy’s comments during our conversation, his own representations that he has memory and cognitive issues because of multiple head injuries, as well as the concerns identified by Arbitrator Rogers, I am satisfied that Mr. Kennedy is unable to proceed in the dispute resolution process on his own and lacks the capacity to do so.

Mr. Kennedy agreed that he would ask his friend for help and explore the possibility of finding a representative. He said he needed some time to do so.

As a result, I adjourned the preliminary issue hearing to January 29, 2016 at 10:00 a.m. by telephone conference call to see if Mr. Kennedy has found someone who can help him and to consider next steps.

Mr. Reil, counsel for Belair, did not dispute that Mr. Kennedy had capacity issues and suggested that a reminder call in advance of the next date would help Mr. Kennedy. I agree. The Commission will contact Mr. Kennedy by telephone to remind him of the January 29, 2016 date approximately one week beforehand and re-issue the notice of hearing.

January 8, 2016

Jessica Kowalski Date

Arbitrator