Rachel Churchill v. Pafco Insurance Company, 2017 ONFSCDRS 317

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 317

FSCO A15-008326

BETWEEN:

RACHEL CHURCHILL

Applicant

and

PAFCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Marcel D. Mongeon, Arbitrator

Heard:

At Hamilton on October 17 and 18, 2017

Appearances:

The Applicant did not participate

Mr. Peter Murray, and Ms. Carolyne Champaigne, representatives for the Applicant

Mr. Curtis Zizzo, representative for the Insurer

Issues:

The Applicant was injured in a motor vehicle accident on October 19, 2012 and sought accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

This Hearing was directed to the sole issue if the Applicant was entitled to be paid a non-earner benefit.

PRELIMINARY ISSUES:

Adjournment Request

At the outset of the Hearing, the Applicant’s representative made a preliminary motion to adjourn the arbitration Hearing. Two reasons were offered for the adjournment request. These were:

a) The Applicant’s health; and

b) The failure of the Insurer to comply with s. 32(2) of the Schedule.

The Applicant provided the affidavit of Carolyne Champaigne in support of the request. The affidavit, in turn, provided me with the following facts to support the request.

On September 18, 2017, the Applicant’s representative was provided a letter from Dr. Michel Rathbone. His simple letter is as follows:

This lady is a neurological patient of mine. I have reviewed her in follow-up today. She has asked me to prepare a letter for you.

In my opinion at present her memory and concentration are substantially impaired. This makes her unable to provide a coherent explanation of her history and symptoms. Accordingly, in my neurological opinion, currently she is unable to give adequate evidence in an arbitration.

A copy of this letter was provided to the Insurer’s representative about a week ago.

An assessment report of June 5, 2017, of Dr. Dory Becker, Psychologist, was also provided which suggested only mild impairments in the Applicant’s functioning in addition to diagnoses of adjustment disorder with mixed anxiety and depressed mood, a pain disorder associated with both psychological factors and a general medical condition, chronic.

The affidavit also indicated at paragraph 4 that “in preparing for this arbitration our office has had difficulties communicating effectively with the Applicant who has demonstrated cognitive difficulty, distress, anxiety and irritability.”

The original Insurer’s Explanation of Benefits sent to the Applicant on or after November 23, 2012 explaining her entitlement to benefits stated for Caregiver Benefit: “This Benefit was not purchased on your policy and is not available to you on this claim.”

The Applicant’s representative submitted that a lengthy adjournment is warranted in order to allow the Applicant’s mental state to be properly assessed with respect to her ability to give evidence. In addition, he submitted that the Applicant was entitled to accommodations under the Ontario Human Rights Code as the Applicant’s deficits made her entitled to such accommodations. However, he was unable to specify the nature of the accommodations that should be sought.

The Insurer’s representative resisted the adjournment request. He argued that the matter was scheduled to proceed and that it should proceed as quickly as possible.

In considering my decision on the adjournment request, I turned first to the second issue of the defects in the explanation of benefits provided by the Insurer.

There is no question in my mind that the information provided on November 23, 2012 was incorrect to the extent that it did not further indicate under Caregiver Benefit that the benefit might be available if the Applicant became designated as Catastrophically Impaired.

Is this misstatement sufficient to suggest that section 32 of the Schedule has not been complied with?

In part, the Insurer submitted that the issue is not a real one because of s. 35(2) of the Schedule: at the time that an applicant is designated catastrophically impaired, they may re-elect any benefit. However, the Applicant responded suggesting that the re-election does not necessarily operate retrospectively.

My challenge in making a decision on this point is that there is no provision of the Schedule which clearly applies on non-compliance with section 32. In the absence of such a provision, I decided that I cannot read in such a provision.

Although I believe that the Applicant was not provided all of the appropriate information under section 32, there is really nothing that I can do about it. I am specifically unwilling to suggest that this Hearing must be suspended.

On the first point of the Applicant’s health warranting an adjournment, reference was made during argument to a number of statutory and regulatory provisions.

I noted both section 18 of the Evidence Act, R.S.O. 1990, c. E.23 and Rule 10 of the Dispute Resolution Practice Code (“DRPC”).

If I was concerned that the Applicant was unable to properly instruct counsel then Rule 10 DRPC would allow me to conduct an appropriate inquiry and, through Rule 10.5, appoint someone to represent the Applicant in this process. However, the Applicant’s representative in his submissions indicated that he did not believe that this was a case of the Applicant not being able to provide instructions; rather, it was a case where he was concerned of the Applicant’s competence to give evidence.

Section 18 of the Evidence Act applies to such a case. The relevant subsections state:

18 (1) A person of any age is presumed to be competent to give evidence.

(2) When a person’s competence is challenged, the judge, justice or other presiding officer shall examine the person.

In the case of Trypis v. Lavigne, 2008 CanLII 26266 (ON SC), Justice Boswell opined that:

A determination of competence must be decided on medical evidence, from a person duly qualified to speak with authority on the subject, as only in the clearest of cases should a party be denied the right to examine an adverse party for discovery. McGowan et al. v. Haslehurst et al. (1977), 1977 CanLII 1192 (ON SC), 17 O.R. (2d) 440.

What I take from Justice Boswell’s comment is that there must be clear evidence a person is not competent to testify in a matter.

I don’t believe the letter I have from Dr. Rathbone is such clear evidence. This is especially the case when it follows a psychological assessment 4 or 5 months earlier which suggests only mild functional impairments.

Although Dr. Rathbone’s letter provides me with concerns about how I might examine the Applicant, it does not suggest that giving evidence could be harmful to her. Rather it merely suggests that the Applicant might not be able to give a coherent explanation of her history and symptoms resulting in what Dr. Rathbone terms “[an inability] to give adequate evidence.” I also noted during argument that Dr. Rathbone’s views are untested by cross-examination nor could they be so tested.

Section 18(2) provides me with an obvious solution: I can conduct an examination of the person whose competence is challenged myself.

In an arbitration pursuant to the Schedule, there is no requirement that the applicant testify. The DRPC provides ample opportunity for an applicant to prove their case through the documents if they see fit. Here, the Applicant’s representative has made it clear that this is not a question of obtaining instructions; he is able to receive instructions.

In coming to this decision, I was mindful both of the need to balance fairness to all parties as well as the need to keep hearings such as this advancing. Until I am satisfied as to the competence or lack thereof of a witness, I will presume them to be competent.

I decided the following to allow this Hearing to proceed. I expressed it orally on October 17 and repeat it here to record it.

This matter will commence at 10 a.m. tomorrow morning [the second day of the Hearing]. In the event that the Applicant decides to testify and there is a concern about her competence, I will conduct the examination provided for in section 18(2) of the Evidence Act. After such an examination, I may make such further order as I consider necessary.

Application to Stay Proceedings

After the foregoing decision, the Applicant’s representative made an application that I should stay the Hearing to allow him to appeal my decision. I rejected this application and gave the following reasons in support of my decision on the second day of the Hearing:

Rules 50.2 and 50.3 of the DRPC are clear and apply to this situation:

50.2 A party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided, unless the Director orders otherwise.

50.3 An appeal does not stop an arbitration order from taking effect, unless the Director orders otherwise.

I read the first Rule as requiring me to continue to hear the Hearing despite the Applicant’s intention to appeal my preliminary finding. I read the second Rule as providing only the Director with the power to stay the operation of my interim ruling.

I denied the Applicant’s request for a stay to allow an appeal of my previous ruling on the adjournment request.

Application for Recusal on Systemic Grounds

After the foregoing decision, the Applicant’s representative made an application that I should recuse myself on a systemic bias as follows: I am part of the team of Arbitrators engaged by the Province of Ontario through ADR Chambers to deal with FSCO matters. As a result of changes to the adjudication process, ADR Chambers has made it clear that all hearings must be completed by December 31, 2017. The Applicant argues that the requirement for hearings to be completed by that date creates a systemic bias to deny adjournments.

I provided the following reasons for my decision not to grant such a recusal.

My understanding of the test to be applied is that it is addressed to a reasonably informed bystander who, if asked about the December 31, 2017 deadline might answer that: yes, I believe that that reasonably causes a bias in the system.

I noted that even though my services might be contracted through ADR Chambers, my appointment as an Arbitrator was through the same order-in-council process that all other arbitrators were appointed.

The December 31, 2017 deadline has been known generally for some time as a result of the Province’s decision to make the transition to the Licence Appeal Tribunal. It was known even at the time of the Pre-Hearing in this matter. Deadlines are also in keeping with the DRPC.

Rule 1.1 DRPC makes it clear that the rules are to secure the “most just, quickest and least expensive resolution of the dispute” (my emphasis). We are not so close to the deadline that I could not have accommodated a delay in this Hearing and, in fact, had asked the parties themselves to discuss this matter off-the-record to see if such an agreement could be reached. In the absence of their agreement to do so, I made the decision to proceed.

Because I do not believe my decision would be any different between a FSCO or an ADR Chambers arbitrator, I cannot believe that a reasonably informed bystander would consider systemic bias to be present. I accordingly denied the request for recusal.

Withdrawal

After advising of the reasons for my previous decisions, the Applicant’s representative advised me that it was the Applicant’s intention to withdraw this application. In addition, the Applicant was seeking expenses of $1,300. The Insurer’s representative was opposed to the withdrawal request.

During submissions and argument on the issue, I noted Rule 70 DRPC on Withdrawal.

I noted that I could consider the Applicant’s request as an oral request under Rule 70.1(c). I also noted that as the Insurer did not consent (under Rule 70.2), I was entitled under Rule 70.3 to make certain rulings. Rule 70.3 states:

Where a party does not agree to the withdrawal, an adjudicator may:

(a) permit the withdrawal on such terms and conditions as he or she considers just;

(b) award expenses to either party as permitted by Rule 75 and following.

Rule 75 provides the normal criteria found in expense requests.

The Applicant’s representative argued that the Applicant should be allowed her costs of preparation of the Hearing on the basis that in my decision on her adjournment request, I had agreed with the point that the initial explanation of benefits sent by the Insurer was deficient. As I had made that finding, the Applicant should be considered to have won the point even though I further found that there was no provision in the Schedule which allowed me to grant a remedy.

The Insurer argued that it had, in fact, prevailed. The initial Hearing was for a determination of non-earner’s benefits; the Applicant was withdrawing this application meaning that those benefits were no longer being sought.

I agree with the Insurer’s position. Although my decision on an adjournment request might have made a finding, that finding was not part of the rationale for the denial of the adjournment. The real finding was that the Schedule does not give me any remedy for a breach of section 32 and, therefore, if I found any breach thereunder, I could not do anything with that finding.

The Insurer is correct that the Hearing was directed to the non-earner’s benefit. Once the Applicant decides to withdraw the application, there is nothing left in dispute. Clearly, the Insurer has prevailed.

In these circumstances I order the withdrawal of the Application with no expenses to either party.

November 27, 2017

Marcel D. Mongeon

Arbitrator

Date