Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 91 FSCO A13-003598

BETWEEN:

XIAO FEI FU Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Benjamin Drory Heard: By written submissions completed February 9, 2017

Appearances: Ms. Yu Jiang, licensed paralegal, for Ms. Xiao Fei Fu Ms. Christine Galea, legal counsel, for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Xiao Fei Fu, was injured in a motor vehicle accident (“MVA”) on September 28, 2010. She sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), 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 (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

1. Is Ms. Fu precluded from proceeding with this Arbitration by virtue of section 55(2) of the Schedule?
2. Is either party entitled to expenses arising from this proceeding?

Result:

1. Ms. Fu is precluded from proceeding with this Arbitration by virtue of section 55(2) of the Schedule. Her Application for Arbitration is dismissed.
2. If the parties are unable to mutually agree on the entitlement to and/or quantum of the expenses of this matter, either of them may request an appointment with me for determination of same in accordance with the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

Twelve (12) treatment plans for medical services provided by Point Grey Physio (10) and Inner Balance Psychological Services (2) dated between October 1, 2010 and January 17, 2011 were the issues in dispute between the parties. The Applicant previously withdrew claims for non-earner benefits, attendant care benefits, and housekeeping and home maintenance benefits.

The Insurer submitted that the Arbitration should be dismissed on the basis that the Applicant repeatedly failed to attend a reasonable and necessary psychological Insurer Examination (“IE”) without reasonable excuse.

Positions of the Parties

State Farm

An OCF-3, dated October 2, 2010, prepared by Dr. Georgia Palantzas (chiropractor) of Point Grey Physio described various soft-tissue injuries. On November 25, 2010, a psychological report was prepared by Dr. Ana Bodnar (psychologist), whose opinion was there was no pre-accident history of emotional difficulties or psychotherapy. Dr. Bodnar concluded that the Applicant suffered from adjustment disorder with mixed anxiety and depression as a result of the accident, and recommended eight 90-minute counselling sessions. It was also alleged that the Applicant suffers from chronic pain syndrome resulting from the accident according to the August 8, 2012 chronic pain report of Dr. Efala (orthopaedic surgeon). Dr. Efala also determined that the Applicant suffered from anxiety, depression and other post-traumatic psychological disorders.

The Applicant submitted an OCF-1 on November 2, 2010. By two letters, dated November 3, 2010, State Farm advised Ms. Fu that certain section 44 IEs were required, including for an OCF-18, dated October 21, 2010, for a psychological assessment. By OCF-9, dated November 3, 2010, the Applicant was also advised that section 44 IEs were required as her injuries appeared to be inconsistent with the damage to the vehicle and the mechanism of injury.

On November 9, 2010 and December 2, 2010, State Farm sent Ms. Fu two letters notifying her (and copying her counsel) that a psychological IE with Dr. McCutcheon was scheduled on December 14, 2010 for the purpose of determining her entitlement to medical and rehabilitation benefits, as State Farm believed that the Minor Injury Guideline (“MIG”) applied to her impairment. The Applicant failed to attend the IE on December 14, 2010. By OCF-9, dated December 20, 2010, the Applicant was advised that due to her failure or refusal to attend the IE, she was no longer entitled to the treatment proposed in the October 21, 2010 OCF-18, and was further cautioned of the consequences of her failure to comply with section 44 of the Schedule.

The Applicant also failed to attend an orthopaedic IE with Dr. Theodoropoulos on January 17, 2011. A letter from Ms. Fu’s counsel, dated May 24, 2011, advised State Farm of their opinion that Ms. Fu was not in non-compliance for failing to attend the scheduled IEs because Ms. Fu required a Mandarin interpreter who was accredited by the Ministry of the Attorney General (“MAG”). The letter further advised that the Applicant’s attendance at an IE would not be confirmed without receiving the CV of an interpreter accredited by the MAG.

The Applicant applied for Mediation on November 1, 2011 and then Arbitration on March 26, 2013.

Four years later, by two letters dated April 10, 2015, the Applicant was notified that two IEs had been scheduled: a psychological IE with Dr. McCutcheon on April 29, 2015, and a medical IE with Dr. Gharsaa on April 23, 2015. The IEs were requested to determine whether the submitted treatment plans were reasonable and necessary.

In response to these letters, the Applicant advised that she would be out of the country and therefore unavailable to attend the scheduled IEs. Several months passed. By letter, dated September 18, 2015, Ms. Fu’s counsel advised State Farm that the Applicant was willing to attend IEs, but she preferred to attend on a weekend.

By two letters, dated September 29, 2015, the Applicant and her counsel were notified that an orthopaedic IE was scheduled with Dr. Yee on October 24, 2015, and a psychological IE was scheduled with Dr. McCutcheon on November 14, 2015 (both Saturdays).

By letter, dated October 15, 2015, Ms. Fu’s counsel advised that the Applicant was unable to attend the orthopaedic IE on October 24, 2015, due to a conflict with her personal schedule. By letter, dated November 10, 2015, Ms. Fu’s counsel advised that the Applicant was unable to attend the psychological IE on November 14, 2015, due to a conflict in her personal schedule.

By letter, dated November 17, 2015, State Farm notified Ms. Fu of a psychological IE with Dr. Paul Kelly, scheduled on Saturday December 4, 2015. By letter, dated November 3, 2015, the Applicant was notified that an orthopaedic IE was scheduled with Dr. Yee on Saturday, January 9, 2016.

The Applicant failed to attend the psychological IE with Dr. Kelly on December 4, 2015.

By letter, dated January 7, 2016, Ms. Fu’s counsel advised State Farm that the Applicant was contacted by an interpreter for the orthopaedic IE on January 9, 2016, but that she did not receive the Notice for this IE and neither did counsel. Accordingly, it was requested that the orthopaedic IE be rescheduled. The orthopaedic IE was ultimately rescheduled to April 2, 2016, which the Applicant attended.

By letter, dated July 12, 2016, Ms. Fu’s counsel advised State Farm that they were waiting for a new Notice for a psychological IE as per “previous correspondence”. By letter, dated the next day, State Farm requested the Applicant reference the previous correspondence, and also requested details of a subsequent MVA on April 13, 2011. After Ms. Fu’s counsel confirmed that no accident benefits claim was opened for the April 13, 2011 MVA, State Farm wrote a follow-up letter on October 4, 2016. The letter again requested clarification on which “previous correspondence” had been referred to. Ms. Fu’s counsel did not respond.

State Farm submits that section 55(2) of the Schedule provides:

An insured person shall not commence a mediation proceeding under section 280 of the Act unless…

(2) the insured person has complied with section 44 if the insurer provided the insured person with notice in accordance with this Regulation that it required an examination under that section.

State Farm submitted that over the course of 5 years, it scheduled 4 psychological IEs, and the Applicant failed to attend all of them, which it summarized as follows:

Date of Notice	Scheduled Date of IE	Reason for Non-Attendance
November 9, 2010; December 2, 2010	December 14, 2010	Applicant required a MAG-accredited Mandarin interpreter; Counsel advised that no IE attendances would be confirmed without a MAG-accredited interpreter
April 10, 2015	April 29, 2015	She would be out of the country
September 29, 2015	November 14, 2015	Personal conflict
November 17, 2015	December 4, 2015	No reason provided

State Farm advised that these non-attendances occurred in the context of five other scheduled IEs that the Applicant did not attend. Throughout the scheduling process, State Farm accommodated many of the Applicant’s requests—including scheduling IEs on weekends, scheduling two IEs on the same day (orthopaedic and occupational therapy), scheduling the occupational therapy IE outside her home, and rescheduling IEs due to conflicts with her personal schedule and being out of the country. Beyond the unreasonable request for a MAG-accredited interpreter, the Applicant’s numerous reschedule requests caused significant delay in State Farm’s ability to properly assess the Applicant’s claims. To date, the Applicant has failed to attend any of the scheduled psychological IEs.

State Farm submits that the Applicant is alleging a psychological impairment as a result of the accident, and that it had the right to obtain a psychological IE to address the disputed OCF-18s and whether the MIG applied. State Farm submits it met all of the Notice requirements pursuant to sections 38(8) and 44(5) of the Schedule.

State Farm submits there is no provision in the Schedule or its applicable related legislation that requires an interpreter for an IE to be MAG-accredited, and that this has been confirmed in several decisions. Arbitrator Mills held in Chen and Personal² that to expect a MAG-accredited interpreter to be present at an IE is unreasonable. Arbitrator Newland agreed with Arbitrator Mills’ analysis in Gao and State Farm.³ Arbitrator Kelly also agreed with Arbitrator Mills’ analysis respecting MAG-accredited interpreters in Zhang & Wen and Security National,⁴ and determined that the Applicant’s failure or refusal to attend the IEs on the basis of not being provided with a MAG-accredited interpreter was not reasonable. For five years, the Applicant refused to attend any IEs unless a MAG-accredited interpreter was provided. State Farm submits that the Applicant’s failure and refusal to attend a psychological IE for that reason was unreasonable.

State Farm submits that Ms. Fu’s refusal and failure to attend four scheduled psychological IEs over five years has deprived it of the ability to properly assess her potential claims. The Arbitration should be dismissed as the prejudice cannot be remedied. In Zhang & Wen, Arbitrator Kelly determined that the substantial passage of time since the accident (4.5 years) had “severely compromised the ability of the Insurer to effectively and properly assess the claims of the Applicants. The prejudice to the Insurer cannot be relieved by examinations at this late date.”⁵ Arbitrator Kelly ordered that the Applications for Arbitration be dismissed.

State Farm submits that if a psychological IE is to be scheduled at this stage, it will be 6.5 to 7 years after the fact. Furthermore, by early-2016, it came to State Farm’s knowledge that Ms. Fu had been involved in a subsequent MVA on April 13, 2011. There are no medical reports arising from that accident. State Farm submits that Ms. Fu’s involvement in the subsequent MVA has further compromised its ability to assess her claims from a psychological perspective. The prejudice cannot be relieved by a psychological IE at this late stage—compliance with section 44 of the Schedule is an impossibility and the Arbitration should be dismissed.

Ms. Fu

Ms. Fu submits that section 55 of the Schedule does not apply as State Farm failed to comply with the mandatory components of section 44 and failed to provide a MAG-accredited interpreter. Moreover, even if State Farm complied with section 44, rather than extinguishing the Applicant’s rights to Arbitration, the proceedings should be stayed to allow the Applicant to attend appropriate IEs.

Ms. Fu’s counsel submitted that by letters, dated February 5, 2016 and July 12, 2016, the Applicant requested a psychological IE be scheduled, but to date, State Farm has not provided a date for such.

The Applicant submitted that it has often been said that the relationship between an Insured and Insurer is one of uberrimae fidei—of utmost trust.⁶ An Insurer must assess the merits of the claim in a balanced and reasonable manner. It must not deny coverage or delay payment in order to take advantage of the Insured’s economic vulnerability. The Applicant in this case was doubly vulnerable as she was not only injured, but also speaks little to no English, as evidenced by her OCF-1. Accordingly, by failing to arrange for a MAG-accredited interpreter, State Farm put its own interests above the interests of its Insured, and did not fairly address a reasonable request from a vulnerable Insured. Failing to provide a duly-qualified MAG-accredited interpreter at an IE compromises the integrity and transparency of the Insurer’s investigation. The Applicant was and is prepared to attend at IEs, so long as a qualified and MAG-accredited interpreter is provided. That any interpreter is duly qualified and MAG-accredited can only be verified by reviewing their CV.

Ms. Fu submitted that an Insurer must comply with mandatory requirements under section 44(5) when an IE is requested. Among them, the Insurer shall give the Insured a Notice setting out the medical and any other reasons for the examination. Arbitrator Sapin held in Augustin and Unifund⁷ that the consequence of a failure to provide this Notice is the nullification of the Insurer’s use of section 55. Moreover, the standard applied by Arbitrators in interpreting what constitutes “sufficient medical reasons” has been extremely high. In Ward and State Farm,⁸ Arbitrator Matheson concluded that a Notice did not include sufficient “medical reasons” for supporting the necessity of an IE, stating as follows:

I cannot find any medical reasons contained within the notices. The mere mention of a Life Care Plan and an Occupational Therapist’s acquired Brain Injury Report, in itself, does not meet the “medical reasons” test, let alone whether the examinations were reasonable and necessary. In my view, the medical reasons test must tell the Applicant, in an unsophisticated way, why the tests are reasonable and necessary.

Ms. Fu submitted that State Farm’s Notice Letters to her fell far short of meeting the standard set by Arbitrators Matheson and Sapin; in fact, it was not clear that State Farm’s explanations in this case amounted to medical reasons at all, let alone ones that would satisfy the standard set by the case law, and they bear striking similarity to a deficiency addressed by Adjudicator Flude in S.L. v. Certas⁹—namely that while the letters identified the purpose of the IE, none of them provided details as to the “reasoning behind the requirement for the IEs”.

Ms. Fu submitted that in Chen, while Arbitrator Mills had held that the request for a MAG-accredited interpreter was unreasonable, she did not preclude the Applicant’s right to proceed to Arbitration. Arbitrator Mills held that the Applicant was permitted to proceed to Arbitration provided that he first complied with section 44 of the Schedule and attend another scheduled IE with an interpreter from a reputable agency. Ms. Fu submitted that if an appropriate IE is arranged, she is and has been willing to attend. She sought an Order that she be able to proceed to Arbitration.

State Farm—Reply

State Farm reiterated its position that the issue of whether a MAG-accredited interpreter is required for IEs has already been litigated and determined in several prior FSCO decisions, which made it clear that the demand for a MAG-accredited interpreter for an IE is not reasonable and failure to attend an IE on that basis results in non-compliance with the Schedule.

Respecting “medical reasons provided”, State Farm submitted that the Ontario Court of Appeal has confirmed that the reasons provided need not be legally correct for a Notice.¹⁰ The purpose of the reasons requirement is merely to permit the Insured to decide whether or not to challenge the refusal.

State Farm’s letters, dated November 9, 2010 and December 2, 2010, concerning the IEs with Dr. McCutcheon advised the Applicant that:

The purpose of this examination is to determine your entitlement to Medical/Rehabilitation benefits as we believe the Minor Injury Guideline may apply to your impairment.

State Farm submitted that explanation is in accordance with s. 38(9) of the Schedule, which provides that:

If an insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person.

In Zhang & Wen, Arbitrator Kelly confirmed that “by asserting that it believed that the MIG applied, the Insurer, in effect, gave the medical reasons”.¹¹ This differed from Augustin, where the Notice specified that an IE was required “to determine if (the Applicant’s) impairment was a minor injury within the MIG”—which Arbitrator Sapin disapproved of because it was not an Insurer’s expression of a “belief” that the impairments were within the MIG. State Farm submitted that the Notices in S.L. were also similar to that in Augustin. State Farm submitted that Arbitrator Kelly’s reasoning in Zhang & Wen was later applied by The Honourable Madam Justice Brown in Ambachew v. Royal & SunAlliance.¹² Justice Brown stated:

The two treatment plans for which summary judgment is sought are, in my view, part of the larger claim and all arising from the same factual matrix and exchanges between the parties. The two claims cannot, in my view, be determined in isolation, without considering all of the responses and requests for information of RSA.¹³

Accordingly, State Farm submits that the IE Notices provided must be considered as a whole. Given that State Farm repeatedly advised Ms. Fu that it believed the MIG applied to her impairment, she and her counsel were properly notified of the “medical reasons” for the psychological IE, regardless of the wording in the subsequent IE Notices. Further, the Applicant never raised any issue with the sufficiency of the IE Notices until now, and her previous assurances that she would attend the scheduled IEs on the condition that a MAG-accredited interpreter also attended (and subsequently without a MAG-accredited interpreter, if the IEs were scheduled on weekends and when she was not out of the country) equivocated to an undertaking that the Notices themselves were not placed in issue then or in future.

State Farm distinguished this case from Ward on the basis that Ward involved a re-examination of the Insured for the non-earner benefit after he was assessed 5 years prior, which is vastly different from an initial IE for which proper Notices had been sent over the course of five years since the accident. The Applicant’s counsel in Ward also did not make assurances that the Applicant would attend the IEs based on various conditions.

State Farm concluded that compliance with section 44 is impossible at this stage given the time which has elapsed since the accident (6.5 years), and the fact that the Applicant was involved in a subsequent MVA. It distinguished the result in Chen, suggesting that only four years had elapsed by the time of Arbitrator Mills’ decision on the preliminary issue, during which there had not been any intervening events, such as an MVA. Accordingly, there was little if any prejudice to the Insurer in that case by staying the Arbitration.

Analysis

Presence of MAG-accredited interpreter

One of the key issues in this case was Ms. Fu’s refusal, over several years, to attend an IE in the absence of a MAG-accredited interpreter.

I have reviewed the cases presented to me. A significant line of cases has now developed at FSCO via the Chen, Gao, and Zhang & Wen decisions; some of those cases additionally referred to Luo and Unica,¹⁴ which was provided to me in State Farm’s submissions. All four decisions were released in 2015, and all four support the arbitral interpretation that failure to attend an IE on the basis that a MAG-accredited interpreter was not provided does not constitute a reasonable reason for that failure. I was not presented with evidence of any Appeal-level decisions that found any error in the decisions of Arbitrators Muzzi, Mills, Newland, or Kelly. I find those decisions compelling and relevant.

I will reiterate some of the key principles from the previous cases.

Arbitrator Muzzi in Luo stated there is no explicit or other requirement for an Insurer to provide a MAG-accredited interpreter for its Insureds who attend IEs.¹⁵ The Dispute Resolution Practice Code does not require that interpreters used by FSCO have any particular accreditation.¹⁶ In Chen, Arbitrator Mills found that MAG accreditation of interpreters was put in place specifically to address the right of the accused to have competent interpretation throughout the criminal process. The MAG accreditation process is specific to that environment.¹⁷ Arbitrator Mills was of the view that an IE does not require interpretation of the standard of that expected in criminal proceedings, and does not require continuous interpretation nor the precision associated with testifying under oath.¹⁸ To expect a competent interpreter in the language of choice to be present and provided by the Insurer at an IE was reasonable, but the expectation that a MAG-accredited interpreter be present was unreasonable.¹⁹

In Gao, Arbitrator Newland stated that:

It is noteworthy that in civil proceedings adjudicating a SABS claim, there is no requirement that the interpreter used be a MAG accredited one, only that they are competent and independent. It would be anomalous and disproportionate for a MAG accredited interpreter to be required for s. 44 IEs, or by extension EUOs, when they are not required for the FSCO Hearing itself, or at the trial of the SABS claim being adjudicated in the Superior Court of Justice in Ontario. The only issues of importance regarding the provision of interpreter services are issues of fairness, independence, and competency in interpreting.²⁰

Arbitrator Newland accordingly found that the Applicant’s refusal to attend the IE on that basis was not reasonable.

In Zhang & Wen, Arbitrator Kelly stated that an Applicant is entitled to proficient interpreter service for an IE, at an Insurer’s expense, if he or she has a language difficulty; but there is no provision in the Schedule or applicable legislation that requires an interpreter for an IE to be MAG-accredited. He added that MAG accreditation was adopted to address primarily courtroom protocol in criminal cases, dealing with the potential loss of freedom of the accused.²¹ Arbitrator Kelly found that the Insurer was deprived of the ability to properly assess the Applicants’ claims, and their excuse for failing or refusing to attend the IEs was not reasonable.

I have little to add to these decisions. I agree with all of them that refusing to attend an IE merely on the basis that a MAG-accredited interpreter was not provided is not reasonable in the context of an accident benefits proceeding. I only note that part of the Applicant’s argument is that the relationship between an Insured and an Insurer ought to be one of uberrimae fidei. That is true—but trust is a two-way street. There are obligations on both parties in the insurance relationship. While the greatest responsibilities in the relationship are typically upon Insurers, there are certain obligations upon Insureds as well. One of the responsibilities on Insureds, in the context of an accident benefits claim, is to attend IEs to allow the Insurer independent assessment of the quality of the claims. The right to IEs is one accorded to Insurers under the legislation, and is restrained by a variety of limitations therein.

Sufficiency of Notice

I find the reasoning of Arbitrator Kelly in Zhang & Wen and Brown J. in Ambachew compelling. In Zhang & Wen, the Applicants asserted that the Notices of Examination were defective, primarily in their failure to set out “medical reasons” for requesting the proposed IEs. Arbitrator Kelly stated that:

I am satisfied that the Insurer did provide sufficient medical reasons in its notices of examinations throughout. By asserting that it believed that the MIG applied, the Insurer, in effect, gave the medical reasons. The Schedule defines “minor injury” as follows: “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. These terms are medical terms, and are even individually defined, as such, in the Schedule. The medical reason provided by the Insurer was, in essence, “your injuries fall within that medical definition”.²²

In Ambachew, seventeen (17) treatment plans were in dispute; the plaintiff sought summary judgment respecting two of them on the ground that the Insurer failed to give reasons for these denials as required by the Schedule. The reasons in the two Notices of denials were as follows, respectively:

(1) “The insurer is awaiting your reasonable explanation for missing your scheduled insurer examinations on 2013-05-15 & 2013-05-23 before considering rescheduling these insurer examinations. Additionally, as you failed to submit the requested OHIP release so that the insurer can obtain an OHIP summary, your entitlement to all benefits was stopped effective 2013-06-26.”

(2) “MIG limit exceeded”.²³

Brown J. was not satisfied that these Notices failed to comply with the Schedule requirements.²⁴ She stated as follows:

All issues and claims are related and intertwined. … Based on the evidence before me, this Court is not able to fairly and justly determine the issues as regards these two claims in a vacuum, without consideration of the other 15 claims, the ongoing correspondence between counsel and the respective parties, the documentation provided or not provided by the plaintiff and the medical examinations scheduled by the insurer and not attended by the plaintiff throughout the material time. … The two claims cannot, in my view, be determined in isolation, without considering all of the responses and requests for information of RSA. … I am not satisfied that the responding notices given by RSA to the treatment plans submitted failed to comply with the SABS requirements. .... I do not find that determination of these two issues, without considering the complete context, is in the interest of justice.²⁵

Brown J.’s determination that the Notices of Examination were not deficient was partly on the basis that there was much other correspondence between counsel in the matter that established each side’s positions. I agree that is eminently reasonable in the context of lengthy ongoing litigation.

I find the Ward case very distinguishable. Ward involved an Applicant who had been deemed catastrophically impaired, and the uncontested evidence revealed he had attended at least nine (9) IEs respecting medical benefits, IRBs, and catastrophic impairment. Arbitrator Matheson conceded that s. 37(1) (a section that applies when an Insurer wants to re-assess an Insured’s ongoing entitlement to a specified benefit already being paid) triggers a request for an examination under section 44, but it should not be exercised more often than is “reasonably necessary”. Ward contrasts starkly to the present case, where specified benefits are not in dispute and the Applicant never once attended a psychological IE in over 6 years following the accident.

Whether a stay or a dismissal is appropriate

It is clear to me that the Applicant’s failure to attend the psychological IEs in question was unreasonable, and impeded the Insurer’s ability to adequately assess her claims. In Chen, Arbitrator Mills granted a stay of the proceeding, holding that the Applicant had to attend a scheduled IE before proceeding with the Arbitration. But in Zhang & Wen, Arbitrator Kelly dismissed the two claims, holding that the substantial passage of time since the accident had severely compromised the Insurer’s ability to effectively and properly assess the claims, and the prejudice to the Insurer could no longer be relieved by examinations. That decision was released approximately 4.5 years after the subject accident. It is currently about 6.5 years after the 2010 accident in this present case. State Farm submits that compliance with section 44 is now impossible given the time that has elapsed and the fact that the Applicant was involved in a subsequent MVA, which cannot be relieved by a psychological IE in 2017.

I agree. It is hard for me to imagine how any IE completed in 2017 can effectively establish whether the Applicant’s impairments are attributable to an accident that happened in 2010, and also distinguish it from any effects that may have been attributable to the 2011 accident. Given that psychological concerns are directly relevant to the MIG, which is the Insurer’s primary defence to the issues in dispute, the right to have a timely psychological IE was central to State Farm’s procedural right to defend itself. I find that the prejudice caused to the Insurer is pronounced—and most of it was avoidable and unreasonable. For four years the Applicant refused to attend any IE in the absence of the Insurer providing a MAG-accredited interpreter. The Applicant’s further delays in attending a psychological IE throughout 2015 give me further pause. I believe that a dismissal is the more appropriate course of action in the circumstances. The matter is dismissed by virtue of section 55(2) of the Schedule, owing to the Applicant’s non-compliance with section 44. If Mediation could not have been commenced, per section 55(b), then it follows that Arbitration could not have been commenced either.

EXPENSES:

If the parties are unable to mutually agree on the entitlement to and/or quantum of the expenses of this matter, either of them may request an appointment with me for determination of same in accordance with the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

March 27, 2017

Benjamin Drory Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 91 FSCO A13-003598

BETWEEN:

XIAO FEI FU Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 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 Ontario Regulation 664, as amended, it is ordered that:

1. Ms. Fu is precluded from proceeding with this Arbitration by virtue of section 55(2) of the Schedule. Her Application for Arbitration is dismissed.
2. If the parties are unable to mutually agree on the entitlement to and/or quantum of the expenses of this matter, either of them may request an appointment with me for determination of same in accordance with the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

March 27, 2017

Benjamin Drory Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Chen and Personal Insurance Company of Canada, FSCO A13-008139 (January 23, 2015).
3. 3Gao and State Farm Mutual Automobile Insurance Company, FSCO A13-002281 (March 30, 2015).
4. 4Zhang & Wen and Security National Insurance Co./Monnex Insurance Mgmt. Inc., FSCO A13-003889 & A13-003890 (April 23, 2015).
5. 5Ibid., p. 12.
6. 6T.(H.) v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2009 CarswellOnt 975, at para. [25].
7. 7Augustin and Unifund Assurance Company, FSCO A12-000452 (November 13, 2013).
8. 8Ward and State Farm Mutual Automobile Insurance Company, FSCO A14-010161 (January 15, 2016).
9. 9S.L. v. Certas Home and Auto Insurance Company, 16-000213/AABS (September 13, 2016).
10. 10Turner v. State Farm Mutual Automobile Insurance Company¸ 2005 CanLII 2551 (ONCA).
11. 11Supra, note 4, p. 9.
12. 12Ambachew v. Royal & SunAlliance, 2015 ONSC 4202.
13. 13Ibid., p. 5.
14. 14Luo and Unica Insurance Inc., FSCO A13-000231 (January 19, 2015).
15. 15Ibid., p. 3.
16. 16Ibid., p. 5.
17. 17Supra, note 2, p. 8.
18. 18Ibid., p. 9.
19. 19Ibid.
20. 20Gao, pp. 16-17.
21. 21Supra, note 4, p. 12.
22. 22Ibid., p. 9.
23. 23Supra, note 12, at paras. [7] and [8].
24. 24Ibid., at para. [14].
25. 25Ibid., at para. [28].