May 19, 2014

SABS Update – More Procedural (un)Fairness: Arbitration stayed pending further assessment

For the week of May 19 to May 23, 2014

Navage v. Aviva Canada Inc., FSCO A13-000006, Stuart A. Mutch, Arbitrator

This was a preliminary motion heard March 6, 2014 pursuant to an arbitration scheduled for June 23-6, 2014, in which the Respondent, Aviva sought an Order staying the arbitration pending the Applicant, Bronwen Navage’s participation in an occupational therapy assessment. The motion was provoked by an addendum occupational therapy report filed by the Applicant in September, 2012, that identified an increase in attendant care needs from $924.04 month (as reported in August, 2012 by the same assessor) and $5,733.49, as a result of new symptoms that required a significantly increased level of personal supervision.

Aviva’s position was that it would be highly prejudiced in the arbitration if it was not allowed to obtain its own assessment of Ms. Navage’s current attendant care needs.

David Wilson, counsel for Ms. Navage argued that his client had in fact been assessed at Aviva’s request in September, 2011 and that this OT assessment had found Ms. Navage to be “substantially disabled from the management of both, the parameters of self-care as well as her Preaccident [sic] homemaking responsibilities”. The assessor failed to file a Form 1 with the report, despite repeated requests by Mr. Wilson, until finally a Form 1 was received in 2013 indicating attendant care needs of $0. On this motion, Mr. Wilson argued that Aviva did not require a new OT assessment, as the original assessment clearly supported the need for ongoing attendant care, despite the Form 1.

Arbitrator Mutch did not accept this argument. He found that the addendum report presented a dramatically different picture of Ms. Navage’s needs. As the new symptoms could not have been accounted for in 2011, Aviva would have no report that addressed the current state of Ms. Navage’s health and needs. The arbitrator also observed that it was possible that a further assessment may have the effect of settling the issue and dispensing with the need to arbitrate. Therefore, in the interest of procedural fairness, the arbitration was stayed pending the proposed OT assessment.

IMPLICATIONS

This decision has a veneer of reasonableness which obscures the fact that Aviva had ample opportunity following service of the September, 2012 addendum report in which to seek a second OT assessment and chose not to do so. As well, given the availability of the Applicant’s OT expert for cross-examination at the pending arbitration, it is not clear what prejudice the insurer would suffer if it failed to procure a responding report. Either the needs as set out are defensible on the evidence or they are not.

Arbitrator Mutch’s suggestion that a further assessment may obviate the need for arbitration merely highlights the fact that Aviva failed in its duty to adjust the file appropriately in the first place. It is unlikely that the proposed assessment will lead to peaceful resolution.

If you have any questions or comments about this post, contact info@md-lawyers.ca