Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 21 Variation/Revocation P17-00091 OFFICE OF THE DIRECTOR OF ARBITRATIONS

ALLSTATE INSURANCE COMPANY OF CANADA Applicant

and

T. S. Respondent

BEFORE: David Evans

REPRESENTATIVES: Eric Grossman for Allstate Insurance Company of Canada Sherilyn Pickering for T.S.

HEARING DATE: January 9, 2019 by teleconference

APPEAL ORDER

Under section 284 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:

The Variation application is allowed. Paragraph 3 of the decision of Delegate Evans dated September 25, 2014, is varied to read as follows:
1. A further paragraph is added to the Arbitrator’s order dated November 15, 2011:
  1. T.S. shall repay to Allstate Insurance Company of Canada all interim benefits paid pursuant to the Arbitrator’s orders of October 14, 2008 and May 29, 2009 in the amount of $41,919.18 with post-judgment interest from September 25, 2014.
T.S. shall pay to Allstate Insurance Company of Canada its legal variation and revocation application expenses of $2,500.

May 2, 2019

David Evans Director’s Delegate Date

REASONS FOR DECISION

Allstate Insurance Company of Canada seeks to vary my order finding that T.S. was required to repay interim benefits. These benefits included housekeeping and attendant care benefits (ACBs) claimed pursuant to the SABS–1996¹ for the period more than 104 weeks after the November 21, 2001 accident in which T.S. was involved.

By way of background, Allstate made payments to T.S. during two periods.

First, it paid interim benefits up to May 10, 2011. Arbitrator Wilson ordered these, subject to repayment, after he adjourned the arbitration hearing commenced in 2008. Once he completed the hearing, Arbitrator Wilson found T.S. was catastrophically impaired and then, in a letter decision dated May 10, 2011, found she was entitled to the housekeeping and ACBs claimed.

Second, Allstate paid benefits after May 10, 2011 based on the order of that date.

In a decision dated September 25, 2014, I reversed the Arbitrator’s formal order dated November 15, 2011. I found that T.S. was not catastrophically impaired and thus not entitled to either ACBs or housekeeping more than 104 weeks after the accident. I added this paragraph to the arbitration decision: “T.S. shall repay to Allstate Insurance Company of Canada all interim benefits paid pursuant to the Arbitrator’s orders of October 14, 2008 and May 29, 2009.” My repayment order did not include an amount, making it unenforceable.

Allstate brought a Superior Court application seeking enforcement of the order, but claimed repayment of all benefits paid. The parties then adjourned the application sine die pending this variation application.

T.S. does not dispute the quantum of the amounts claimed by Allstate, namely $41,919.18 for the interim benefits paid up to May 10, 2011 and $20,773.40 for the benefits paid afterwards.

Rather, T.S. submits that I have no jurisdiction to deal with this matter. Pursuant to Rule 61.1(c) of the Dispute Resolution Practice Code, either the insured person or insurer can apply to vary or revoke an arbitration or appeal order where “there is an error in the order.” She submits that recent FSCO case law suggests that an “error in the order” is more in the nature of a typographical or numerical error.

I disagree with respect to the interim benefits paid. I find that it is an error on the order to issue an unenforceable order. An error in the order may arise where an arbitrator has overlooked or has not dealt with a matter that, explicitly or implicitly, should have been addressed: Hart and Allstate Insurance Company of Canada, (FSCO P99-00045, November 7, 2000). Having found liability, I should have asked for submissions on the amounts paid. This would be similar to the typical expense decision, where the quantum is determined after a decision on entitlement.

However, I agree with T.S. with respect to the payments made pursuant to the May 10, 2011 order. I see no “error in the order” in that regard. Allstate simply seeks to expand the repayment beyond what I ordered. Allstate should have sought repayment pursuant to s. 52 of the Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10. That provision does not apply to the interim benefits because those had already been ordered subject to repayment, depending on outcome.

Therefore, my decision will be varied to show that T.S. shall repay the interim benefits paid in the amount of $41,919.18, with post-judgment interest payable from the date of my appeal order.

The parties have agreed that costs be $2,500 to the successful party in the variation, which I find was Allstate. Finally, I will provide a non-anonymized version of the order page to the parties.