17-005611 v Wawanesa Mutual Insurance Company, 2018 CanLII 95562

Date: 2018-05-18

Tribunal File Number: 17-005611/AABS

Case Name: 17-005611 v Wawanesa Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

Counsel for the respondent: Seth Kornblum

Counsel for the applicant: Stanley Razenberg

Observer: Jesse Boyce

Held by teleconference: March 26, 2018

Overview:

1On August 17, 2017, the applicant brought an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The application is in connection with an automobile accident that occurred on March 5, 2014.

2The applicant seeks payment for ongoing post-104 attendant care benefits, a catastrophic impairment determination, and an award under Ontario Regulation 664, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

3The Tribunal held a case conference on January 5, 2018. There were two outcomes from the case conference: this preliminary issue hearing was set, and an in-person hearing was scheduled for July 9-13, 2018 on the substantive issues in dispute.

4This is a decision on a preliminary issue hearing brought by the respondent. The respondent asks the Tribunal to:

(i) stay an application for post-104 week attendant care benefits pending the outcome of the pre-104 week determination of attendant care, which is currently before the Financial Services Commission of Ontario (FSCO); and,

(ii) exclude the transcripts from the FSCO arbitration from the hearing at the Tribunal, pending the outcome of the FSCO appeal.

Result

5The applicant is not precluded from proceeding with an application for post-104 week attendant care benefits.

6The applicant is entitled to rely on the transcripts from the FSCO arbitration.

7The applicant is not entitled to the costs of this proceeding.

The claim for attendant care at FSCO

8The applicant filed an application for arbitration at FSCO dated July 25, 2015. The arbitration hearing proceeded on June 21, 22, 23 and July 10, 11, 13 and 14, 2017.

9The issue of attendant care benefits heard at the FSCO arbitration was set out in the arbitrator’s decision of October 30, 2017 as:

Is [the applicant] entitled to receive attendant care benefits in the amount of $3,000.00 per month from March 5, 2014, to March 5, 2016?

10The arbitrator ruled that the applicant was not entitled to the attendant care benefits on the grounds that she did not incur the costs as defined under s.3(7)(e) and under s.3(8) of the Schedule.

11The arbitration decision is under appeal to the director’s delegate. A date of the appeal hearing is not yet set.

The claim for attendant care at the Tribunal

12Specifically, the issue of attendant care before the Tribunal is for benefits at $6,000 a month from March 5, 2016 and ongoing, and is based on an assessment of attendant care needs form that is different from the form for the arbitration at FSCO.

Parties’ Submissions:

The respondent

13The respondent submits that the application should be stayed to avoid multiplicity of proceedings and inconsistent results.

14Relying on case law¹, the respondent submits that the matters before FSCO and the Tribunal are substantially similar:

a) The test for attendant care benefits before and after the 104 week mark is identical;

b) The issues are whether the benefit was incurred, and whether the applicant meets the requisite test for impairment;

c) Entitlement to the costs set out in the assessment of attendant care needs and the Form 1 involves an assessment of entitlement to the benefit; and

d) Entitlement to an award entails an assessment of the respondent’s actions in denying the benefits.

15The respondent submits that the meaning, relevance and admissibility of the evidence set out in the transcript will be subject to review at the FSCO appeal and perhaps at a further FSCO arbitration hearing. The respondent argues that relying on this transcript evidence, would, therefore exacerbate the concern regarding inconsistent findings.

The applicant

16The applicant submits that the issue of post-104 attendant care was brought to the Tribunal because the respondent objected to it at the FSCO arbitration. Further, the applicant argues that there is no overlap in the issues at FSCO and at the Tribunal, as the claims pertain to different time periods, and are based on different assessment of attendant care needs forms and different Form 1’s.

17The applicant submits that the authorities on which the respondent relies were decided within the context of a version of the Insurance Act which, unlike her case, allowed the insured to choose between applying to FSCO or to the Superior Court.

18The applicant submits that the FSCO transcripts are prima facie admissible into evidence, pursuant to s. 15(1) of the Statutory Powers Procedure Act, RSO 1990, Chapter S.22, as amended, and Rule 9.2 of the Tribunal’s Rules of Practice and Procedure.

Analysis and Reasons

19Section 42 of the Schedule sets out a framework for an application for attendant care benefits. The section states that an application must be made on a Form 1, the prescribed form for assessment of attendant care needs. If the insurer denies a Form 1 claim, subject to certain conditions by virtue of s. 56(1), an insured can bring an application to the Tribunal within two years from the date of the denial.

20Section 42(9) allows for a new Form 1 to be submitted to an insurer at any time if there are changes that would affect the amount of the benefit. In this case, there is a different Form 1 to support the applicant’s claim before the Tribunal.

21The issue of attendant care benefits before the Tribunal is clearly distinct from the issue that is before FSCO, and I find there is no overlap between the issues: FSCO has jurisdiction over attendant care benefits for the first two years following the accident, while the Tribunal has jurisdiction over the dispute on attendant care benefits for the period after the two year anniversary of the accident and ongoing. There is no overlap because the time periods are based on different Form 1’s.

22Therefore, the proceeding before the Tribunal is not a duplication of the proceeding before FSCO because the issues are distinct and relate to different periods.

23Further, the Tribunal proceeding cannot result in inconsistent findings. In the FSCO arbitration decision, the arbitrator ruled that the applicant was not entitled to (pre-104 week) attendant care on the grounds that costs were not incurred and not deemed incurred. This finding relates to a specific period with its own set of facts that are not before the Tribunal. As a result, I fail to see how the proceeding before the Tribunal would be a duplication of what is currently before FSCO, or how a decision by the Tribunal would lead to a finding that is inconsistent with the FSCO decision. Needless to say, the outcome of the FSCO appeal will not affect the outcome of what is before the Tribunal.

The application to FSCO and the application to the Tribunal

24The applicant originally sought to have the issue of attendant care benefits adjudicated at FSCO from the date of the accident and ongoing, in the amount of $8,326.86, as shown in the application for arbitration. In other words, not only until March 4, 2016, as set out in the arbitration decision.

25The respondent argued that because the issue of catastrophic determination was not before FSCO, the issue of attendant care beyond the two year mark was not properly before the arbitrator. The FSCO arbitration decision clearly sets out that the arbitrator only considered the pre-104 week attendant care benefits.

26Given the above, I find that the applicant effectively was not able to seek payment for ongoing attendant care benefits or beyond the two year mark at the FSCO arbitration. As such, I find that the applicant is not precluded from bringing this issue to the Tribunal. Given the foregoing, I find that the issue of attendant care benefits is properly before the Tribunal – it does not constitute an abuse of process².

27Part of the Tribunal’s mandate is to ensure an efficient, proportional and timely resolution of the matters before it. To allow the applicant to proceed with her application for ongoing attendant care benefits along with her claim for a catastrophic determination, is in keeping with this mandate.

The FSCO transcripts

28As for the issue of the FSCO transcripts, the respondent provided no authority for excluding it from evidence, and I can find none. I find the transcripts are prima facie relevant and are allowed. The weight given to the transcripts is a matter for the hearing adjudicator.

29The applicant’s request for costs is dismissed. There is no evidence that the respondent has acted in bad faith, as contemplated in the Tribunal Rule 19.1.

30The respondent’s motion is dismissed. The applicant is entitled to proceed with an application for post-104 week attendant care benefits.

Footnotes

1. 1The respondent relies on a number of decisions in which there was an action before the Superior Court of Justice for some benefits, and a FSCO arbitration for other benefits: Citadel General Assurance Co. v. Gogna, [1992] O.J. No. 1996; Mangat v. Non-Marine Underwriters, Lloyd’s London [2000] O.F.S.C.I.D. No. 144; Wasiela v. Wawanesa Mutual Insurance Co., [2009] O.F.S.C.D. No. 87; Keffer v. Wawanesa Mutual Insurance Co., [2009] O.F.S.C.D. No. 45. The respondent also relies on British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, to submit that the Tribunal should avoid a multiplicity of proceedings.
2. 2The Tribunal order identified the attendant care issue as whether it was an abuse of process. I accepted the parties’ submissions on whether it should be stayed.