John Biro v. Unica Insurance Inc., 2017 ONFSCDRS 288

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 288

Appeal P17-00045

Appellant

and

Respondent

BEFORE:

Delegate Jeffrey Rogers

REPRESENTATIVES:

Mr. Gary Mazin, solicitor for Mr. Biro Mr. Jamie Pollack, solicitor for Unica

HEARING DATE:

Heard by written submissions, completed on October 19, 2017

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

This appeal is dismissed.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 2, 2017

Jeffrey Rogers Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Biro appeals the Arbitrator’s order of June 8, 2017. The Arbitrator ordered Unica to pay him certain accident benefits and a special award. Mr. Biro submits that the Arbitrator’s Order is unclear because it does not specify whether payments are limited by his policy limits. He seeks an interpretation of the Order that would require Unica to pay him a special award based upon entitlement to benefits in excess of the policy limits. For the reasons that follow, I find no error of law by the Arbitrator. The Arbitrator could not have made the order that Mr. Biro seeks and the Arbitrator did not intend to do so. To have done so would have been to exceed the Arbitrator’s jurisdiction.

II. BACKGROUND

Mr. Biro was injured in a motor vehicle accident on March 11, 2007 when he was rear-ended. He applied for and received statutory accident benefits from Unica, payable under the Schedule.¹ He applied for arbitration after mediation did not resolve disputes about his entitlement to further claimed benefits. The issues in dispute in the hearing before the Arbitrator were:

Did Mr. Biro sustain a catastrophic impairment?
Was Mr. Biro entitled to payment for Case Manager Services?
Was Mr. Biro entitled to attendant care benefits?
Was Mr. Biro entitled to a Non-Earner Benefit?
Was Mr. Biro entitled to certain payments for medical marijuana and various other medical benefits?
Was Mr. Biro entitled to payment for certain assessments or examinations?
Was Mr. Biro entitled to payment of interest? and
Was Mr. Biro entitled to payment of a special award?

The Arbitrator found that Mr. Biro did not sustain a catastrophic impairment. She found that he was not entitled to a Non-Earner Benefit or the cost of the assessments or examinations he claimed. The Arbitrator found that Mr. Biro was entitled to monthly attendant care benefits of $523.42 for 104 weeks after the accident.

The issue in the appeal concerns the rest of the Arbitrator’s order. Of the various medical benefits he claimed, the Arbitrator found that Mr. Biro was entitled to payment of $30 per day for medical marijuana, from February 11, 2011 and ongoing, and payment of $6,270.70 for psychological treatment. The Arbitrator also found that Mr. Biro was entitled to interest in accordance with the Schedule and a special award of 50%. The Arbitrator ordered that the amount of the special award is to be based upon the amounts “outstanding” for medical marijuana and psychological treatment.

Mr. Biro wrote to the Arbitrator on June 16, 2017 asking her to clarify her order. In essence, he asked her whether she intended to order payment of a special award based upon his policy limits of $100,00 for medical benefits, or based upon amounts in excess of his policy limits. The Arbitrator declined Mr. Biro’s request to clarify the order. He then launched this appeal seeking the same “clarification”.

II. ANALYSIS

In this appeal, Mr. Biro asks the same question that the Arbitrator refused to answer when he requested clarification: “did the Arbitrator intend to make an order that was within her jurisdiction, or did she intend to exceed her jurisdiction?” The obvious answer is that the Arbitrator did not intend to exceed her jurisdiction. Mr. Biro’s entitlement to accident benefits and the Arbitrator’s jurisdiction are both circumscribed by the statutory limits of his insurance policy. The Arbitrator’s jurisdiction to make a special award is limited by the amount of the insured person’s entitlement to accident benefits.

Since he did not sustain a catastrophic impairment, Mr. Biro’s policy limit for medical benefits is $100,000. It is clear from the Arbitrator’s order that she was aware of the limit, and that she was aware that Unica had already paid $95,255.46, leaving only $4,744.54 available to satisfy her order. The Arbitrator was also aware that Mr. Biro’s claims for further medical benefits “far exceed the remainder of $4744.54 available to him”.² She undertook to nevertheless decide which claims were reasonable and necessary. She stated:

Unica has paid Mr. Biro $95,255.46 in medical benefits up to the date of arbitration. Section 19(1) of the Schedule prescribes that the sum of the medical and rehabilitation benefits paid in respect of an insured person shall not exceed, for any one accident, $100,000, unless the insured person sustained a catastrophic impairment which I find he did not. While his medical benefits claims far exceed the remainder of $4744.54 available to him, I will examine each in turn applying the test whether they were reasonable and necessary expenses incurred by him as a result of the accident.³

In drafting the order, the Arbitrator apparently made an error of calculation. The award of $30 per day for medical marijuana exhausts the policy limits. Therefore, there is nothing available to satisfy the award for psychological treatment. Section 21.1 of the Statutory Powers Procedure Act gives an arbitrator the authority to correct such an error. It states:

A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order.

The Arbitrator could have corrected her error of calculation when Mr. Biro asked her for clarification. However, the correction was unnecessary. The amount of the benefits that Unica is required to pay is patently obvious.

Mr. Biro does not claim that he is entitled to payment of medical benefits in excess of $100,000, but he argues that the special award the Arbitrator made is not limited by his entitlement to medical benefits. This argument defies the clear language of s. 282(10) of the Insurance Act. Section 282(10) sets the maximum amount of a special award at “50 per cent of the amount to which the person was entitled at the time together with interest …” I see no ambiguity, as Mr. Biro suggests. Mr. Biro is only entitled to payment of benefits up to his policy limits, and the Arbitrator was aware of this. The Arbitrator made the maximum special award that she could. She could not have ordered Unica to pay a special award on benefits to which Mr. Biro was not entitled.

As noted above, I find no error by the Arbitrator. This appeal is therefore dismissed.

III. EXPENSES

The Arbitrator ordered the parties to bear their own expenses of the arbitration. In the appeal, Mr. Biro sought an order awarding him expenses of the arbitration, but he made no submissions on how the Arbitrator erred in this regard. I find no error.

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 2, 2017

Jeffrey Rogers Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
At page 22
At page 22