Gina Decaires v. Royal & SunAlliance Insurance Company of Canada, 2017 ONFSCDRS 74

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 74

FSCO A16-002124

BETWEEN:

GINA DECAIRES

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Kimberly Parish

Heard:

By written submissions completed on February 2, 2017

Appearances:

Mr. Jonathan Mackenzie for Ms. Gina Decaires

Ms. Marie Lampropoulos for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Ms. Gina Decaires (“Ms. Decaires”), was injured in a motor vehicle accident on March 20, 2014 and sought accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through Mediation, and Ms. Decaires, through her representative, applied for Arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

Is Ms. Decaires’ Application for Arbitration deemed withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code (“DRPC”)?
Is Ms. Decaires precluded from proceeding to Arbitration on the following issues as she failed to attend a Section 44 Insurer’s Examination (“IE”)?

The issues in dispute for this Arbitration include:

a) Did Ms. Decaires sustain an impairment within the Minor Injury Guideline (“MIG”) and within the meaning of the Schedule as a result of the accident?

b) Is Ms. Decaires entitled to receive a medical benefit as follows:

$733.41 for treatment from Dr. Katherine Kit Ying Siu, dated June 16, 2014;
$1,196.25 for treatment from Activa Clinic, dated May 16, 2014;
$3,106.80 for treatment from Activa Clinic, dated March 28, 2014?

Is either party entitled to its expenses for this Preliminary Issue Hearing?

Result:

Ms. Decaires’ Application for Arbitration is deemed withdrawn pursuant to Rule 70 of the DRPC.
I am permitting the withdrawal of Ms. Decaires’ Application for Arbitration. As such, I do not need to decide on the second issue forming this Preliminary Issue Hearing.
No expenses are awarded. Each party shall bear its own expenses.

EVIDENCE AND ANALYSIS:

Background and Chronology

Ms. Decaires applied to Royal for statutory accident benefits on or about April 2, 2014. An Application for Mediation was submitted to FSCO on October 21, 2015. A Section 44 IE was scheduled by the Insurer for December 15, 2015 to assess if Ms. Decaires’ injuries fell within the MIG and to assess a treatment plan (OCF-18), dated March 28, 2014. Ms. Decaires did not attend this assessment.

On January 26, 2016, a FSCO Mediation took place and Royal raised a preliminary issue, subject to section 55 of the Schedule, that Ms. Decaires could not commence a Mediation proceeding as she had failed to attend the IE on December 15, 2015.

An Application for Arbitration was received by FSCO on March 10, 2016.

A Pre-Hearing took place on September 6, 2016 via telephone conference with Arbitrator Gueller. Ms. Decaires did not participate at the Pre-Hearing.

An in-person resumption of the Pre-Hearing took place with Arbitrator Gueller on November 3, 2016, at the offices of ADR Chambers. Ms. Decaires was present and participated at the Pre-Hearing. At the resumption of the Pre-Hearing, Ms. Decaires, through her legal representative, Mr. Mackenzie, made an oral request as per Rule 70.1(c) of the DRPC to withdraw her Application for Arbitration. Royal opposed her request. The timelines were set up with the parties by Arbitrator Gueller for a Preliminary Issue Hearing to proceed in writing.

Applicant’s Submissions

Ms. Decaires submits she didn’t attend the IE on December 15, 2015 due to a scheduling conflict. Ms. Decaires submits she has offered to reschedule the IE but Royal has declined to do so.

Ms. Decaires submits at the resumption of the Pre-Hearing on November 3, 2016, she orally requested the withdrawal of her Application for Arbitration as per Rule 70.1(c) of the DRPC. Royal did not consent to the withdrawal, and per Rule 70.3 of the DRPC, it will be up to an adjudicator to determine if the withdrawal will be permitted and on such terms that the adjudicator considers just.

It is Ms. Decaires’ position that her Application for Arbitration be allowed to be withdrawn on a without costs basis as she has fulfilled the requirements of Rule 70.1(c) of the DRPC.

Ms. Decaires relies on prior FSCO jurisprudence where Applicants have been allowed to withdraw their Applications for Arbitration at various stages within the process. In the decision of Jarabat and State Farm,² the Applicant requested to withdraw their Application for Arbitration in accordance with Rule 70 of the DRPC. The insurer refused to allow the Applicant to withdraw. Arbitrator Shapiro exercised his discretionary power under Rule 70.3 of the DRPC which allowed the Applicant to withdraw their Application for Arbitration with terms. A further FSCO decision, About-Faour and State Farm,³ is relied on by Ms. Decaires. In the case of About-Faour, the Applicant requested to withdraw his Application for Arbitration on the eve of the Hearing and the insurer opposed. Arbitrator Pressman permitted the Application for Arbitration to be withdrawn.

The case of Trang and Guarantee⁴ was also addressed by Ms. Decaires. In this decision, it notes that in the vast majority of the cases, FSCO grants consent when an Applicant is requesting to withdraw their Application for Arbitration. The issue for the Arbitrator to determine is: what terms, if any, are to be contained within the Order.

The Applicant lastly submits that if Royal had allowed Ms. Decaires to withdraw her Application for Arbitration as requested at the Pre-Hearing resumption on November 3, 2016, the Preliminary Issue Hearing would not have been necessary. Any further expenses incurred by Royal from that date onward could have been avoided.

Insurer’s Submissions

Royal provided detailed submissions on its position that Ms. Decaires is statutorily barred from proceeding to Arbitration or bringing an Application to the Licence Appeal Tribunal (“LAT”) on the issues in dispute for this Arbitration. It is Royal’s position that she has failed to attend the IEs requested by the Insurer to assess the claims in dispute for this Arbitration. Royal submits that Ms. Decaires did not respond to Royal’s requests to reschedule the IE or provide her availability as requested by Royal.

It is Royal’s position that Ms. Decaires’ attempt to withdraw her Application for Arbitration is a calculated attempt to forum shop and cause significant prejudice to Royal. To allow Ms. Decaires to withdraw her Application for Arbitration would deny Royal immediate resolution of the dispute and could cause Royal further cost if Ms. Decaires files any of these same issues with the LAT. Royal relied on the decision of Alexander and Zurich.⁵ In this case, Arbitrator Novick refused to allow the Applicant to withdraw their Application for Arbitration and maintains that the Arbitrator has the discretion to determine if a withdrawal should be permitted and may impose terms deemed appropriate in allowing for the withdrawal.

Royal requests an Order that Ms. Decaires be precluded from bringing an application to the LAT with respect to the same issues in dispute which were filed for this Arbitration. In the alternative, Royal has stated through its submissions that it is amenable that Ms. Decaires’ withdrawal be permitted with prejudice and the Application for Arbitration be dismissed.

Royal is requesting costs for having to defend the Application for Arbitration commenced by Ms. Decaires and for Royal raising this preliminary issue.

Decision

In examining the preliminary issues before me, I have reviewed the submissions and FSCO jurisprudence provided by the parties.

The first issue I must decide is whether to permit Ms. Decaires to withdraw her Application for Arbitration as per Rule 70 of the DRPC.

If Ms. Decaires’ Application for Arbitration is withdrawn, her claim would then proceed no further. Ms. Decaires requested at the resumption of the Pre-Hearing on November 3, 2016 to withdraw her Application for Arbitration and the Insurer opposed. The FSCO jurisprudence addressed by Ms. Decaires highlights instances when Arbitrators at FSCO permitted Applicants to withdraw their Application for Arbitration when the Insurer has opposed. I note that these decisions which allowed the withdrawal of the Applications for Arbitration, referenced by Ms. Decaires, attached terms and conditions stipulated by the Arbitrator. In Jarabat, the Arbitrator awarded expenses against the Applicant as a result of the Applicant failing to comply with undertakings which served to further delay and hinder the process.⁶ In the decision of About-Faour, the Arbitrator awarded expenses against the Applicant due to the timing of the Applicant’s request to withdraw their Application for Arbitration, on the eve of the Hearing.⁷ In the decision of Trang, the Arbitrator awarded expenses against the Applicant and permitted the withdrawal of the Application for Arbitration to allow for the dispute to proceed to court.⁸

The Insurer relied on the decision of Alexander in which Arbitrator Novick does not permit the Applicant to withdraw their Application for Arbitration. In this case, three days of Hearing had already commenced and the Applicant’s representatives made it clear in their request to withdraw the Application for Arbitration that it was in response to an evidentiary ruling which they perceived not to be in the Applicant’s favour.⁹ There is a clear distinction to be drawn between this decision and the case of Ms. Decaires. Ms. Decaires’ request to withdraw was made at the Pre-Hearing stage and not in the midst of a Hearing. I further note that in the decision of Alexander, Arbitrator Novick states:

The general view among arbitrators has been that parties should not be forced to proceed when they have indicated the desire to withdraw from the arbitration process.¹⁰

I am permitting the withdrawal of Ms. Decaires’ Application for Arbitration on a without costs basis as per Rule 70.3 of the DRPC. I find no cogent evidence before me to not permit her to withdraw her Application for Arbitration. Her request to do so was at the Pre-Hearing stage, well before a Hearing commenced. Royal stated through its submissions that Ms. Decaires has failed to attend the IE and should be precluded from proceeding to Arbitration. Royal’s opposing the withdrawal of the Application for Arbitration has forced the issue to a Preliminary Issue Hearing. This has required both parties to bear further costs and time.

If Royal would have permitted Ms. Decaires to withdraw her Application for Arbitration, the issues in dispute would not have proceeded any further in this process. I recognize that Royal has incurred filing fees and legal costs to get to this stage, but I also find that it is the Insurer who has prolonged this process with forcing this to a Preliminary Issue Hearing.

I am permitting the withdrawal of Ms. Decaires’ Application for Arbitration on a without costs basis. As such, I do not need to decide on the second issue forming this Preliminary Issue Hearing.

EXPENSES:

The Applicant was the successful party in this Preliminary Issue Hearing. However, Royal incurred a $3,000.00 filing fee plus the cost of retaining legal counsel which were a direct result of Ms. Decaires filing an Application for Arbitration. The outcome is the request by Ms. Decaires that her Application for Arbitration be withdrawn on a without costs basis. Ms. Decaires’ legal counsel has incurred costs for this Preliminary Issue Hearing. In light of expenses being incurred on both sides in which the end result has led to me allowing this Application for Arbitration to be withdrawn, I will not be awarding any expenses. Each party shall bear its own expenses.

March 13, 2017

Kimberly Parish Arbitrator

Date