- On June 12, 2010 Arina Sukhomlina was injured in a motor vehicle accident. She received statutory accident benefits from State Farm Mutual Automobile Insurance Company. Mediation did not work for the parties and therefore Ms. Sukhomlina applied for arbitration in order to settle the dispute.
- Throughout the course of the hearings Ms. Sukhomlina failed to attend arbitration, on a number of occasions. She was given a notice after missing her first hearing but still failed to attend.
- There are 2 issues at hand they are the following:
- Should Ms. Kanevsky be allowed to withdraw as counsel for Ms. Sukhomlina?
- Should Ms. Sukhomlina’s application for arbitration be dismissed?
- The court looked at client-solicitor relationships, and Ms. Sukhomlina’s failure to reply/ attend arbitration
- Ms. Sukhomlina’s representative had tried several times to contact her, but she did not get a reply from her. State Farm also did not protest against the representative’s withdrawal, and therefore it was enough of a reason for the court to approve the representative’s withdrawal.
- Ms. Sukhomlina’s failure to respond /attend the proceedings (that were sent to her last known address) was satisfactory in dismissing her arbitration. She was also contacted by phone, but once against there was a failure to respond. This lead to her failure to prove her claims and therefore her application was dismissed.
- The application for arbitration was dismissed and client-solicitor relationship is withdrawn. There were no expenses sought therefore, none were given.
This case can be found on https://www5.fsco.gov.on.ca/AD/4217
Thanikasalam v State Farm
July 7, 2014
On October 26, 2008, Mr. Velluppillai Thanikasalam (the “Applicant”) was injured in a motor vehicle accident. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) under the Statutory Accident Benefits Schedule. The parties’ subsequent mediation attempt failed to resolve their mutual disputes and Mr. Thanikasalam applied for arbitration.
On December 10, 2012, at the pre-hearing, the applicant applied for claims covering a variety of assessment expenses for services provided by Omni Evaluations whilst withdrawing from his other claims for income replacement benefits and housekeeping benefits. An arbitration hearing was set for November 12, 2013.
On November 12, 2013, Mr. David Carranza attended on behalf of the Applicant, Mr. Thanikasalam who was absent and Mr. Schrieder represented State Farm. Mr. Carranza presented a motion to be removed from record as representative for the applicant as he could not contact his client. State Farm requested a dismissal of the applicant’s claims.
1. Should Mr. Carranza be removed from the record as representative of Mr. Thanikasalam?
2. Should Mr. Thanikasalam’s claims be dismissed?
1. Mr. Caranza’s request to be removed from record as representative of Mr. Thanikasalam is denied
2. Mr. Thanikasalam, the applicant’s claims were dismissed.
3. State Farm is entitled to expenses relating to this matter.
Reasons of Decision
Mr. John Wilson (the Abritrator) determined that with no prior application by the applicant’s council to be removed from file as representative on record until the hearing, Mr. Carranza “forfeited” the right to be removed. Mr. Wilson found no evidence that the applicant had discharged Mr. Caranza; hence, as according to r. 9.8 of the Dispute Resolution Practice Code and under the Rules of Professional Conduct of the Law Society of Upper Canada and jurisprudence, Mr. Wilson, at his own discretion denies Mr. Caranza request to be let off the record.
The applicant’s claims were dismissed as he did not appear at the hearing and failed to provide supporting evidence for his claims. As the burden of proof rested on Mr. Thaikasalam, the arbitrator found no basis for findings in favour of his claims for benefits under The Statutory Powers Procedures Act, s. 7(1).
Mr. Wilson, at his discretion awarded costs to State Farm as set out in the Expense Regulation  which governs costs awards at FSCO because of the failure of the applicant to withdraw his claim in a timely manner, as he obviously had no intention of pursuing it further. This is to punish the needless expenditures in time and resources by parties who had prepared and did attend.
Thanikasalam v. State Farm demonstrates that it is unwise to abuse the legal system with frivolous claims as set out in the Cunningham Report, under recommendation 8, “a claimant or insurer who abuses the process should be required to pay all or part of the settlement meeting and arbitration fees of the other party.”
*Important excerpts from the case.
- The Applicant, M.D., was injured in a motor vehicle accident on June 4, 2004.
- The accident occurred while the Applicant was a passenger in a car. His injuries included loss of vision in his left eye, a skull fracture, multiple facial fractures, headaches, a concussion and emotional difficulties.
- The parties agree that the Applicant’s physical injuries result in a 34% Whole Person Impairment (WPI) within the meaning of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (the “Guides”).
- An assessment at an Insurer’s Examination determined that the Applicant did not sustain a catastrophic impairment.
- They (Respondents) disagree on the degree to which his panic disorder impairs him.
- The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended
- M.D. has nightly suicidal thoughts and daily sadness
- Step-father’s relationship with M.D. is like “night and day” after the accident
- M.D. has anxiety problems and avoids his children’s extra-curricular activities at school
- M.D. is fearful of being in any work setting
- According to Pastore v. Aviva Canada Inc., one marked impairment is sufficient for a catastrophic impairment designation
- In Desbiens v. Mordini and Arts (Litigation guardian of) v. State Farm Mutual Automobile Insurance Company, it was found that an assessor could assign a WPI to a mental impairment and combine it with a physical WPI.
- In the decision of Pilot Insurance Company and Ms. G., the Director’s Delegate agreed that it was appropriate to assign a percentage WPI to an impairment based on a mental or behavioral disorder and combine that with a percentage WPI due to a physical impairment.
- The issue in this case is whether mental and behavioural impairment ratings assigned by the Applicant’s catastrophic impairment assessors are overstated. According to the Applicant, his mental and behavioural impairment rating warrants a catastrophic impairment rating designation. According to Aviva, the Applicant’s mental and behavioural impairment rating does not warrant a catastrophic impairment rating designation.
- Did the Applicant sustain a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule?
- Did the Applicant sustain a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule?
- Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?
- Insurance Act, R.S.O. 1990, c.I.8, s. 282
- Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O Reg 403/96
- American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993
- Dispute Resolution Practice Code – Fourth Edition, Rule 79
- Mental and Behavioural Impairments Assessment Guideline
- Aviva argued that the Applicant did not suffer a marked impairment in any of the four areas of functioning and does not meet the catastrophic designation. In addition, the Applicant’s life changes do not represent a marked departure from his pre-accident life
- The Guides deal with the assessment of mental and behavioral impairment in Chapter 14 and assign a Class of impairment to four areas of functioning, namely: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or work-like settings.
- 2007: M.D.’s doctors diagnosed him was diagnosed with agoraphobia (a fear of being in open or public places) with panic attacks and major depression.
- 2009: M.D.’s doctors diagnosed him with a panic disorder with agoraphobia and a major depressive disorder
- I (Adjudicator) prefer his (M.D.’s doctor, Dr. Levitt) assessment to that of Dr. Salmon’s assessment because Dr. Levitt recognized when rating someone, it is important that they not be rated within their simplified life, but rather, to assess the impact of their mental state on functioning.
- The burden of proof rests with the Applicant. He must prove on a balance of probabilities that, as a result of the accident, he is catastrophically impaired. He provided reliable and credible evidence that he sustained a catastrophic impairment
- I find that this Mental and Behavioural Impairments Assessment Guideline is not applicable to this proceeding because it does not apply to non-DAC matters. This is in response to the insurer’s statement that a situational assessment is required when performing a CAT assessment.
- The Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule.
- The Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2) (g) of the Schedule.
- If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code – Fourth Edition.
Ms. Julia Lo-Papa, the Applicant, was injured in a car accident on October 20, 2010. The Insurer, Certas Direct Insurance Company, paid her the benefits afforded to her under the Statutory Accident Benefits Schedule. The Insurer classified her injuries as primarily minor and thus limited her benefits to $3,500, as per the Minor Injury Guideline (MIG) Cap. The Applicant claims that the injuries she sustained were not primarily minor and require treatment beyond what the $3,500 Cap allows for. The Applicant and Insurer participated in mediation, but were unable reach a settlement. As a result, the Applicant requested arbitration through the Financial Services Commission of Ontario (FSCO).
Does the Minor Injury Guideline Cap of $3,500 relate to the Applicant?
If no, is the Applicant eligible to receive monies for the disputed assessments and treatment plans?
In order to exclude the MIG Cap, s. 38(3)(c)(i) of the Statutory Accident Benefits Schedule requires that a treatment and assessment plan must clearly provide:
that the insured person’s impairment is not predominantly a minor injury,
that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition.
The onus is on the Applicant to prove that the Cap does not apply because the injuries sustained fall outside of the MIG. As stated by Director’s Delegate Evans in Scarlett v. Belair Insurance Company Inc., FSCO A12-001079, “the burden of proof always rests on the insured of proving that he or she fits within the scope of the coverage.” The Applicant submitted a written report by Dr. Howard Jacobs, Chronic Pain Specialist, which stated that she has experienced anxiety and depression since the car accident. The report did not address these symptoms in relation to the soft tissue injuries she sustained, or whether the Applicant had any pre-existing medical conditions that may be interfering with her recovery. The report actually failed to mention the MIG at all. The Applicant submitted no further evidence to support her claim. Arbitrator Arbus concluded that the Applicant did not provide sufficient evidence as required by the Schedule to prove that the MIG Cap did not apply to her; she failed to meet the burden of proof.
The Minor Injury Guideline Cap of $3,500 relates to the Applicant, therefore, she is not eligible to receive monies for the disputed assessments and treatment plans.
Awuau v. Intact Insurance Company FSCO A12-001840
Facts of the Case
Isaak Awuau was in an automobile accident on July 19, 2009. Mr. Awuau applied for arbitration at the Financial Services Commission of Ontario to resolve the dispute surrounding his entitlement to accident benefits under the Insurance Act. A pre-hearing was scheduled on March 4, 2014 in which Mr. Awuau did not attend. The arbitration hearing was scheduled for May 9, 2014. Prior to the arbitration hearing, a letter was sent to Mr. Awuau informing him of the hearing date and advising him of Rule 68 of the Dispute Resolution Practice Code stating “an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith”.
Based on the facts that Mr. Awuau did not appear at the pre-hearing or arbitration hearing and he did not provide written explanation as to the reasons behind his absences, the court deemed Mr. Awuau’s claim as vexatious resulting in Mr. Awuau’s initial claim for arbitration to be dismissed. In addition, the court ordered Mr. Awuau to pay Intact’s expenses of $850.
Adequate Access to Justice
Though it is unclear as to why Mr. Awuau neglected to appear to the trial, close to five years lapsed between the time in which Mr. Awuau was involved in the automobile accident and when the pre-hearing was scheduled at the Financial Services Commission of Ontario. Following an automobile accident, many individuals seek immediate financial relief to aid with any medical or automobile costs that may ensue as a result of the accident. The purpose of seeking arbitration in insurance dispute is to help these individuals overcome the effects of an automobile accident in a timely manner.
According to Rule 11.1 of the Dispute Resolution Practice Code, “an application for mediation, neutral evaluation or arbitration must be filed no later than 2 years from the date the insurer provided written notice of a refusal to pay the amount claimed”. Though the limitation period is designed to ensure that individuals are given enough time to submit his or her claims before the issue becomes statue-barred, claims, such as Mr. Awuau’s, are taking years before they are even able to reach a pre-hearing. Following an automobile accidents, many individuals just want to go back to his or her life prior to the accident. However, if claims are being unnecessarily dragged out, individuals are unable to settle the matter and move on with his or her life. As a result, individuals may unintentionally submit applications that the court deems as vexatious due to the lack of pursuance by the applicant, and thus wasting the court’s and each of the party’s time. By implementing better safe guards to eliminate long wait times between the initial incident and the hearing dates, courts will be able to assist individuals more effectively and efficiently and provide access to justice to Canadians.
The Applicant, Dalea Naamo, made claims for statutory accident benefits from AXA with respect to motor vehicle accidents that occurred on February 9, 2011 and October 26, 2011. In 2013, the Applicant commenced two applications for arbitration at FSCO with respect to AXA’s denial of claims for statutory accident benefits. In both applications, the Applicant is represented by Sokoloff Lawyers. Similarly, the Insurer chose to retain one law firm (Laxton Glass LLP) to represent it on both applications.
The Applicant objects to AXA having the same lawyer (or law firm) represent it on these two applications and seeks an order for the removal of that firm from the record on both matters (essentially, forcing AXA to hire two different law firms to represent it — a different firm for each of the two applications). A pre-hearing conference for both matters was scheduled to be held on February 25, 2014. At that time, the Applicant objected to proceeding with the pre-hearing discussion in either matter until she obtained a ruling on her motion for an order removing Matthew J. Sutton of Laxton Glass LLP as solicitor of record for the Insurer in both applications.
Relying on the factors set out in Dervisholli v. Cervenak, namely: was one in which the same law firm was defending the insurer (State Farm) on both the applicant’s claims for accident benefits and on the tort claim. Justice Hambly felt that, given the difference between the duty owed by State Farm to the applicant in the accident benefits claim and its duty in the tort claim and given that, by having the same law firm representing it in both claims, the insurer might gain access to information in one case to which it would not normally have access in the other, there was at least a potential for the appearance of impropriety.
The Applicant has brought a motion to have Matthew J. Sutton of Laxton Glass LLP removed as solicitor of record for the Insurer (due to a conflict of interest allegedly arising from Mr. Sutton representing AXA on both of these arbitration proceedings).
Section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The decision in Dervisholli was not binding upon the decision maker. There were contrary decisions from the Divisional Court and from a Director’s Delegate that are binding upon the decision maker and that put into question the value of the Dervisholli decision as a precedent. It also has less relevance to the present case. In the present case there is no conflict and no appearance of impropriety. In such circumstances, it would make no legal or practical sense to force AXA to be represented by two different lawyers. The Applicant has failed to satisfy me that, by having the same lawyer or firm representing the Insurer, this somehow prejudices the Applicant or increases the risk of unreasonable conduct on the part of the Insurer.
The Applicant has failed to prove that having AXA represented by the same firm in responding to claims for accident benefits arising from two accidents constitutes either a conflict of interest or an abuse of FSCO’s process. For these reasons, the Applicant’s motion is denied.
 114 O.R. (3d) 20 (S.C.J.), 2012 ONSC 7137 (CanLII) (“Dervisholli“).