February 12, 2010 by Canadian Underwriter
Should a woman diagnosed with a borderline personality disorder be allowed to represent herself in an arbitration concerning auto insurance accident benefits?
Yes, the Financial Services Commission of Ontario (FSCO) has ruled.
In L.G. and Lombard General Insurance Company of Canada, FSCO arbitrator John Wilson considered whether the claimant in the case, L.G., was entitled to represent herself without legal representation in an accident benefits arbitration, even though Lombard produced evidence that she had been diagnosed with a “schizophrenic/borderline personality disorder.”
“Although the diagnosis does not determine capacity [of the claimant to represent herself], such information is not totally irrelevant, ” Wilson ruled.
Wilson said the case required a reference to Rule 10.3 of the Dispute Resolution Practice Code (DRPC).
The DRPC reads: “Where an adult party has not been declared mentally incapable under the provisions of the SDA (Substitute Decisions Act), but exhibits signs of mental difficulty during the course of a mediation, settlement discussion, neutral evaluation or a proceeding, either party may request a hearing on a preliminary issue…to determine whether: (a) the party has the mental capacity to proceed in the dispute resolution process.”
But while Rule 10 of the DRPC “provides a grounding for an enquiry into the capacity of a party to participate in the arbitration process, it does not specify a procedure, or the nature of evidence that is to be considered,” Wilson noted.
He went on to observe that some kind of medical-legal analysis would be required, and Lombard had not presented anything more than a diagnosis. “It goes without saying that there is not necessarily a direct relation between a diagnosis and capacity, since the effects of mental illness may be mitigated by treatment, may be in remission, or may not ultimately affect the reasoning capacity of an individual,” Wilson wrote.
Wilson noted that even though he thought L.G. would be “better served” by a representative, an arbitrator had no basis under the Insurance Act (or other statutes) to enquire into the capacity of a party.
“Rather, I must depend on the parties to file any evidence and to make appropriate submissions,” he wrote, saying elsewhere that: “A contemporary report by a qualified assessor addressing capacity in a litigation context would have been more useful in making a more definitive decision, but none was available.”