ACCIDENT BENEFITS NEWSLETTER - JANUARY 2003

-CATHERINE H. ZINGG

SABS - 1996

Rule 9.9 DRPC and Section 23 SPPA - Exclusion of Representative

In Suliman v. Economical Mutual Insurance Company, A02-000596, December 16, 2002, Arbitrator Blackman excluded the applicant's representatives from the hearing.  In a pre-hearing letter, the arbitrator had required Mr. Suliman's representatives to prepare and return a signed acknowledgment in accordance with the decision in Glinka v. Dufferin Mutual Insurance Company, P01-00002, March 7, 2001.  The acknowledgment was to advise Mr. Suliman that the agents were not lawyers, were not subject to the supervision or discipline of the Law Society of Upper Canada, were not required to carry insurance and had advised Mr. Suliman that he was personally potentially liable to pay a portion of the insurer's legal expenses and to advise Mr. Suliman in both English and Arabic of this information.  At the time of the hearing, the arbitrator had not received any such acknowledgment from or on behalf of the applicant (p.5).  During the first half of 2002, fourteen treatment plans were submitted by Centre City Health Recovery on behalf of Mr. Suliman.  The arbitrator expressed concern about a multiplicity of actions.  In a pre-hearing decision, he had ordered that any further Centre City treatment plans regarding the applicant with respect to the accident of December 13, 2001 should be submitted to the mediation team leader in order to fast track them.  The arbitrator further commented:

The applicant's representatives failed to dispel (again, noted in my prior decision), and by their silence since the pre-hearing discussion now lead me to infer that their actions in this case are a deliberate attempt to harass Economical by the implicit threat of multiple proceedings being brought at various times in various forms on intertwined, if not identical, issues.  This in incompatible with the fair treatment of the respondent herein or of their own client, recklessly exposing Mr. Suliman to the risk of personal responsibility for payment of the insurer's expenses and/or the $3,000.00 insurer's assessment.  To allow such representation in a proceeding cannot command the respect of the community and is incapadable with the proper Administration of Justice (p.11).

The applicant was ordered to pay Economical's expenses in the amount of $1,632.99 in any event of the cause, but only as a set off against any award made in the proceeding in his favour regarding the disputed accounts of Centre City Health Recovery and/or interest on those accounts. 

Rule 9.8 - DRPC - Withdrawal of Counsel

In Alamin v. Royal & Sunalliance and TTC, A00-8445/A00-8446, December 13, 2002, counsel for the applicant  moved to be removed as solicitors of record.  Ms. Alamin alleged that she had been injured in motor vehicle accidents on March 21, 1993 and September 14, 1993.  Due to concerns about Ms. Alamin's mental health and her ability to instruct counsel, the matter was significantly delayed.  Ms. Gracey, submitted that the solicitor client relationship had broken down and sought to be released from her obligations as solicitor of record.  The arbitrator accepted the testimony of Ms. Alamin's psychiatrist, Dr. Panjwani, that Ms. Alamin was presently able to instruct counsel and would meet the test for capacity contained in subsections 6 and 45 of the Substitute Decisions Act.  Having reviewed the case law with respect to the removal of solicitors of record, the arbitrator found that the specific power to order a solicitor to represent a party against his or her will would be the exercise of a substantive power and would be in the absence of direct legislative authority beyond the authority of an arbitrator.  He went on to find that given the general law on the solicitor client relationship, the rules of professional conduct of The Law Society of Upper Canada, and the wording of Rule 9.8 of the Practice Code, he had no option but to grant the request by the Carranza law firm for withdrawal as solicitor of record, subject to any terms or conditions that he considered to be just in the circumstances (p.10).

Finding that Ms. Alamin would need assistance to present her case, given the substantial delays that had occurred, he ordered that the Carranza law firm was to ensure that its documentary production obligations had been completed, subject to the co-operation of Ms. Alamin in providing any necessary authorizations.  It was further ordered that the Carranza law firm was to make a duly qualified barrister and solicitor, familiar with the file, other than Ms. Gracey, to appear as amicus curiae at the resumed pre-hearings and at the hearing in the matter.  No funding was ordered for these appearances.  The Carranza law firm was also to provide Ms. Alamin with a full copy of her file and any supporting documents, together with a summary of the actions completed on the file and those remaining to be undertaken prior to the hearing.  If Ms. Alamin succeeded in retaining other counsel, the Carranza law firm could move to be released from its obligations under the Order.  It was also ordered that the Carranza law firm was to continue to be served with all notices of hearing with regard to the matter. 

Section 37 - Refusal or Stoppage of Income Replacement Benefit

Section 42 - Insurer Examinations

In Allstate Insurance Company of Canada v. Sellathamby, P02-00009, December 17, 2002, the insurer appealed  an arbitration decision, dated March 21, 2002 ordering the insurer to pay the applicant income replacement benefits from January 3, 2001, onward pending the resolution of the dispute. 

On March 23, 2002, Dr. Prendergast, wrote in a DAC Report that Mr. Sellathamby was psychologically disabled from returning to his pre-accident employment (p.16).  Allstate wrote to Dr. Prendergast asking how long he expected Mr. Sellathamby to be disabled and what treatment would be warranted (p.16).  The doctor was unable to respond to these questions because of the DAC Guidelines.  Three days after receiving this response from Dr. Prendergast, Allstate referred the same questions to Dr. Hershberg, who had examined the applicant in an insurer examination in 1999 and concluded that the applicant was not disabled by anxiety and depression.  Dr. Hershberg was not asked to examine Mr. Sellathamby again, but was sent a copy of the DAC report and Dr. Hershberg's first report.  Dr. Hershberg disagreed with Dr. Prendergast's conclusions (p.17). 

An independent examination was then arranged with Dr. Ross for July 25, 2000 (approximately four months after the date of the DAC Report).  Dr. Ross was asked the same questions that had been earlier asked of Dr. Prendergast and Hershberg.  Upon receiving a report from Dr. Ross that the applicant was not psychologically  disabled from returning to work, Allstate terminated benefits in the face of a positive DAC Report. 

The Director's Delegate did not approve of Allstate's course of actions stating:

Allstate was entitled to dispute the DAC assessment, and to rely on IE Reports and other evidence in any arbitration or civil proceeding.  What it was not entitled to do was to terminate Mr. Sellathamby's benefits, based on an IE Report, in the face of a DAC Report that supported Mr. Sellathamby's claim under s. 5 of the SABS-1996.  This was a contravention of s. 37(5).  Allstate submits, in the alternative, that if an interim benefits order was appropriate, it should not have extended beyond the 104 week mark.  Subsection 37(5) requires, simply, that benefits be paid “pending the resolution of the dispute”.  It contains no temporal limitation, and is not made subject to s. 5(2)(b).  Like the arbitrator, I find this compelling evidence of legislative intent.  Among other things, by the time the SABS-1996 was drafted the legislature must be presumed to have known many disputes about “pre-104 week” benefits are not resolved until well after the 104 week point.  A different outcome might have been mandated had Allstate issued a proper stoppage notice based on the test under s. 5(2)(b).  In the absence of a post 104 week process, I am not persuaded that the SABS allows an insurer to rely on s. 5(2)(b) to limit the protection provided by s. 37(5) (p.19). 

The parties were required to bear their own expenses, with the Director's Delegate noting that there had been three decisions and two supplementary orders dealing with the matter, none of which considered whether Mr. Sellathamby met the disability test set out in s. 5 of the SABS-1996 (p.22).  Director's Delegate Makepeace commented that the proceeding was not disposed of in accordance with the Commission's mandate to resolve disputes in the quickest, most just and most cost effective way possible.