Rachel Churchill v. Pafco Insurance Company, 2018 ONFSCDRS 133

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 133

Appeal P18-00001

OFFICE OF THE DIRECTOR OF ARBITRATIONS

RACHEL CHURCHILL

Appellant

and

PAFCO INSURANCE COMPANY

Respondent

BEFORE:

Edward Lee

REPRESENTATIVES:

Chris Churchill for Rachel Churchill Curtis Zizzo for Pafco Insurance Company

HEARING DATE:

June 20, 2018 by written submission

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:

1. The appeal of the arbitrator’s order of November 27, 2017 is dismissed.

Edward Lee Director’s Delegate

August 10, 2018

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–2010.¹

This is an appeal from a decision of Arbitrator Mongeon (the “Arbitrator”), dated November 27, 2017.

In his decision, the Arbitrator denied a request brought by Ms. Churchill (the “Appellant”), to adjourn the hearing, then permitted the Appellant to withdraw her application, and ordered that no costs be paid by either side for the proceeding.

II. BACKGROUND

Ms. Churchill was injured in motor vehicle accident on October 19, 2012, and sought accident benefits from Pafco Insurance Company (“Pafco”), payable under the SABs. The parties were unable to resolve their disputes through mediation, and Ms. Churchill, 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.

A hearing was convened for Ms. Churchill on October 17, and 18, 2017 in regard to her application for accident benefits. The only issue to be determined was Ms. Churchill’s entitlement to the non-earner benefit (“NEBs”).

Ms. Churchill did not participate at the hearing, but was represented by counsel. Her counsel requested an adjournment of the hearing, based on the following grounds:

a) The applicant’s health; and

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

The Arbitrator was then presented with documentation which addressed Ms. Churchill’s ability to give evidence at an arbitration hearing. The Arbitrator noted the following:

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.²

Ultimately, the Arbitrator denied the adjournment request. He then heard Ms. Churchill’s request to withdraw the application and granted her request. Finally he denied Ms. Churchill’s claim for costs of the proceeding and awarded no coasts.

The Appellant now appeals on the following grounds:

(a) The Arbitrator failed to properly appreciate the obligations under the Human Rights Code to accommodate which is a mistake in law

(b) The arbitrator failed to understand that he had authority and had to act based on his findings that the insurer had failed to properly inform their insured as to the available benefits which is a mistake in law

(c) The arbitrator did not award costs despite the request for accommodation and the refusal to grant which is a mistake in law and contrary to the Human Rights Code.

III. ANALYSIS

(a) Did the arbitrator fail to appreciate the obligations under the Human Rights Code and to accommodate which is a mistake in law?

As noted by the Arbitrator, the Appellant requested an adjournment at the commencement of the hearing, based on Ms. Churchill’s health:

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.³ [Emphasis mine]

It is apparent the Appellant was not challenging any specific provision of the SABs, but instead, sought “accommodations” under the Human Rights Code. The Arbitrator responded by engaging the Appellant and seeking to clarify that which was sought. The Arbitrator noted the Appellant’s counsel’s response: “However, he was unable to specify the nature of the accommodations that should be sought.”⁴

The process undertaken by the Arbitrator was similar to that followed by other arbitrators when faced with a request for accommodation. In Wilson and Liberty Mutual Insurance Company, an appellant sought an accommodation under the Human Rights Code in the form of a third party who would act for the appellant as a ”facilitator.” This facilitator would have the combined role of an interpreter, representative, and witness. The Delegate approved the approach taken by the arbitrator in response to that request for accommodation:

Finally, Mrs. Wilson raised arguments under the Charter of Rights and Freedoms and the Ontario Human Rights Code. She does not challenge the legislation, but objects to its application in her case. In my opinion, the arbitrator’s decision turned on his evaluation of the facts. Mrs. Wilson’s rights have not been ignored, rather a determination has been made that her condition does not warrant the kind of accommodation she is seeking.⁵

A similar approach was taken in Lisowecki and Dominion Insurance Company⁶ where an applicant sought an accommodation under the Human Rights Code whereby she would be permitted to make oral, rather than written submissions. In that case, the Delegate considered whether any evidence showed that such a request had been made to the arbitrator. When the Delegate determined that no such request had been made, the Delegate confirmed the arbitrator’s decision. The Delegate found he was “… not persuaded that the Appellant was not properly accommodated at the arbitration hearing.”

In the present case, the Arbitrator engaged the Appellant in regard to the accommodation she sought under the Human Rights Code. He made a decision based upon the facts before him. He determined that the Appellant had been unable to specify the accommodation requested, and thus did not grant her request. I find no error of law in the manner the Arbitrator addressed the request for accommodation under the Human Rights Code.

(b) Did the arbitrator err in law by failing to understand that he had authority and had to act based on his findings that the insurer had failed to properly inform their insured as to the available benefits?

This argument stems from the Arbitrator’s decision wherein he considered an Explanation of Benefits form:

There is no question in my mind that the information provided on November 23, 2012 [an explanation of benefits] was incorrect to the extent that it did not further indicate under the caregiver benefit that the benefit might be available if the Applicant became designated Catastrophically Impaired.⁷ [Emphasis mine]

Having made this determination, he ruled as follows:

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 decide 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 I can do about it. I am specifically unwilling to suggest that this hearing must be suspended.

Nonetheless, it was unclear why the Appellant raised this issue as a grounds for the adjournment she sought. The only issue before the arbitrator was entitlement to the non-earner benefit. The caregiver benefit was never an issue at the arbitration hearing.

The Arbitrator’s decision on the Explanation of Benefits form was clearly obiter dicta, but having made it, I find no error of law in his decision not to act upon it. Whether he had the authority to act on his decision or not was irrelevant, as the caregiver benefit was not an issue before him.

(c) Did the Arbitrator err in law by not awarding costs [to the Appellant] despite the request for accommodation and the refusal to grant which is a mistake in law and contrary to the Human Rights Code?

The Arbitrator applied Rule 70 of the Dispute Resolution Practice Code to make his determination in regard to the Appellant’s request to withdraw her application. The Arbitrator granted that request, and then applied Rule 75 of the Dispute Resolution Practice Code to determine which party should be allowed their costs. In fact, the Arbitrator awarded costs to neither side. I find no error of law in the Arbitrator’s determination of the costs.

Finally, I note that Ms. Churchill repeated the grounds sought in the original Notice of Appeal and adduced new evidence in documents sent on April 3, 2018 and May 2, 2018. This evidence was not before Arbitrator Mongeon at the arbitration hearing, and leave had not been sought to file such new evidence. As an appeal of an arbitrator‘s decision lies only on questions of law, I have not addressed any of the new evidence.

Further, Ms. Churchill’s documents include a claim for a special award and general damages of $25,000.00. No entitlement to benefits was determined in the Arbitrator’s order. Nor was there mention of a special award being sought or discussed at the arbitration hearing. Finally, it is not within the jurisdiction of the tribunal to award general damages. Again, I decline to consider any of the supplemental relief sought in those submissions.

IV. EXPENSES

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.

Edward Lee Director’s Delegate

August 10, 2018

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Page 4 of decision
3. 3Page 3 of decision
4. 4Page 3
5. 5Wilson and Liberty Mutual Insurance Company, Appeal P04-00007 , July 2, 2004 at page 13
6. 6Appeal Order P08-00019 at page 14, May 7, 2009
7. 7Page 3 of decision of Arbitrator