FSCO, Julia Gordyukova and Dominion of Canada General Insurance Company

FSCO A08-002589

Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010

Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.

In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.

Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.

Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?

Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.