June 24, 2013

Accident Benefits Update – Watching You Watching Me: Is the Arbitration process bound by the Code?

ACCIDENT BENEFITS UPDATE

For the week of June 24 to June 28, 2013

Watching You Watching Me – Is the Arbitration process bound by the code?

Dewing and Unifund Assurance Decision Date: 2013-05-16, Adjudicator: John Wilson, Regulation: 403/96, Decision: Arbitration, Prehearing Order, appeal pending, FSCO 3985.

The insured driver  Kelly Dewing, was injured in a motor vehicle collision on June 24, 2010. She applied for statutory accident benefits (SAB’s)  from  her insurance company, Unifund Assurance Company (“Unifund”), payable under theSchedule. The parties were unable to resolve their disputes through mediation, and Ms. Dewing applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.

At the pre-hearing discussion held on May 6, 2013, counsel, on behalf of Ms. Dewing, requested that Unifund disclose whether it had any surveillance in its possession. If there was surveillance, Unifund were required to  elect whether they intended to rely upon it within 60 days and that they disclosed all surveillance within 60 days if they  intended to rely upon any part of it.

This dispute is about whether an arbitrator retains the discretion to vary Rule 40.1 of the Dispute Resolution Practice Codeand to order a party to disclose the existence of surveillance evidence, as well as to modify the deadline for its production. Rule 40.1 reading implies that surveillance evidence should only be disclosed if a party intends to rely on that surveillance. However Arbitrator Wilson argued that he was not bound by the Code, but the legislation from which the Code was derived from.

RESULTS

Arbitrator Wilson ordered Unifund to disclose immediately whether or not it has any surveillance in its possession.   Unifund had 60 days from the date of the decision to make its election as to whether it intended to rely upon any of the surveillance, in which case it had to immediately disclose all surveillance in accordance with Rule 40 Dispute Resolution Practice Code.

Arbitrator Wilson relied on both s.22  Insurance Act  and s.5.4(1), 15(2) and s.22.1 Statutory Powers Procedure Act  to frame his argument that the powers granted to an Arbitrator provided them with the discretionary power to vary the Code. Arbitrator Wilson believed that this discretionary power came from the view that   all relevant documents that are not privileged are producebale, and it in was in the interest of both parties to resolve matters before the hearing.

IMPLICATIONS

From the plaintiff counsels perspective this decision opens up the ability to request video surveillance even where the SAB’s insurer has not disclosed that there is surveillance. This potentially give plaintiff counsel an opportunity  to head off any credibility issues that are likely to be raised by ensuring  the insured medical experts are able to make an interpretation of the surveillance evidence before the hearing.

Arbitrator Wilson has taken a pragmatic approach to the new era of litigation which ensures parties are not surprised at the last moment by information that could have assisted resolution of the matter. However as Arbitrator Wilson made it clear that he was not bound by the previous decisions of FSCO and   the scope of an Arbitrator to vary the Code; both matters will no doubt will be addressed in the up coming appeal.

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