Home Subscribe Advertising Contact info Industry Links Company &    Ratings Search Daily service Email Us

Capacity debate exposes legislative hole     © Thompson’s World Insurance News 2010. No reproduction without written consent.     There is really no effective means provided in the legislation for an arbitrator to inquire into the capacity of a party to a hearing, a Financial Services Commission of Ontario arbitrator has said.     John Wilson was ruling on an application by a woman referred to as ‘L.G.,’ to be able to represent herself in a claim against Lombard General.     The applicant said she hadn’t been able to retain a lawyer.     L.G. is asking that the insurer be ordered to pay expenses from operations and procedures it felt were necessary for reasons other than the auto accident.     Lombard said it had concerns regarding her ability to manage the arbitration process without counsel.     It also referred to her having had a previous diagnosis of ‘schizophrenic/borderline personality disorder.’     Mr. Wilson said: “It goes without saying that there is not necessarily a direct relation between diagnosis and capacity, since the effects of a mental illness may be mitigated by treatment, may be in remission, or may not ultimately affect the reasoning capacity of an individual.     “In the end, I was provided with no evidence that could displace the presumption of capacity.”     There is really no effective means provided in the Insurance Act, the Schedule or the Statutory Powers Procedure Act for an arbitrator to enquire into the capacity of a party. He must depend on the parties to file any evidence and to make appropriate submissions.     “While Lombard is not entirely satisfied as to L.G.’s capacity, L.G. believes that she has the necessary capacity to pursue this matter.     Despite the hints of psychological issues in past documentation, the record of the arbitration does not demonstrate any current clear lack of capacity.”     More in our March 1 edition        Thompson’s World Insurance News P.O. Box 1027,  Waterloo, Ontario,  Canada  N2J 4S1 Tel: 519-579-2500 Fax: 519-745-7321 mpub@sympatico.ca THOMPSON’S WORLD INSURANCE NEWS , Canada’s only independent weekly for p&c insurance professionals, has been the industry’s most trusted news source since 1988.