Neutral Citation: 1992 ONICDRG 46

P-001055

ONTARIO INSURANCE COMMISSION

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BETWEEN:

ROGER MENARD

Applicant (Appellant)

and

ROYAL INSURANCE COMPANY

Insurer (Respondent)

Before:

Elisabeth Sachs, Director of Arbitrations

Counsel:

Gilles C. Daigle (for Appellant, Applicant)

J. Stephen Cavanagh(for Respondent, Insurer)

APPEAL DECISION

I. NATURE OF PROCEEDINGS

By Notice of Appeal filed November 2, 1992, the applicant Roger Menard (the Appellant) appeals from an interim order of Frederika Rotter, Senior Arbitrator, made on October 13, 1992 dismissing the appellant's motion for a new hearing in the arbitration action and to disqualify herself from the hearing.

The orders sought by the appellant are:

1. A stay of the interim order pending final disposition of the appeal;

2. The presently adjourned arbitral proceeding be discontinued and a new hearing held;

3. The Director of Arbitrations appoint another arbitrator in this case.

II. STAY OF ARBITRAL ORDER

The arbitration hearing started July 27, 1992 and was adjourned on July 29, 1992 as the appellant was absent. The proceeding was adjourned to September 29, 1992 when a further adjournment was requested and granted to October 26, 1992. Two weeks before the resumption of the hearing the appellant brought a motion which was dismissed by the arbitrator and is the subject of this appeal.

Section 283(6) of the Insurance Act, R.S.O. 1990, c.I-8 provides:

"An appeal does not stay the order of the arbitrator unless the Director decides otherwise."

The appellant therefore sought an order staying the arbitration proceeding on the basis that he intended to forthwith appeal the arbitrator's decision. The application for the stay was heard by me on October 21, 1992 and a decision, attached as Appendix I, granting the stay was issued October 22, 1992.

The arbitral hearing is scheduled to resume December 14, 1992, subject to the terms of this decision.

III. ARGUMENT AND FINDINGS

A. Appointment of a New Arbitrator

The appellant submits certain events occurred during the first two days of the hearing which not only require a new hearing be constituted but a new arbitrator appointed by the Director pursuant to s.283(12) of the Insurance Act. That section provides:

"A party may apply to the Director for the appointment of a new arbitrator if the party believes that the arbitrator is biased and the Director shall determine the issue."

The submissions on appointment of a different arbitrator and whether a new hearing is necessary are intertwined. However, the appellant's basic submission is translation services supplied by the Commission were so inadequate they interfered with the presentation of the evidence such that the arbitrator may have been prejudiced thereby and prejudged the results.

No other allegations are made respecting the possible bias of the arbitrator, and no specific examples given. No question of bias was raised during the arbitral hearing or at any time before the motion for a new hearing on October 13, 1992.

As the appellant requested arbitration in the French language pursuant to s.48 of the Dispute Resolution Practice Code, Senior Arbitrator Rotter, who is bilingual, was appointed to conduct the hearing. As it turns out, both parties concede only the respondent insurer's counsel might need to rely to any degree on a translation into English and the services were for the benefit of respondent's counsel.

The arbitrator and counsel having noted the translation was not completely adequate, the Commission arranged to have appropriate simultaneous interpreters available for the third day of the hearing. The appellant, however, did not attend and the hearing had to be adjourned.

The evidence heard by the arbitrator to that point consisted of the examination and cross-examination of one medical witness (taken out of turn to accommodate the appellant), the appellant's evidence in chief and the beginning of his cross-examination. Accordingly, there are no findings of the arbitrator nor other indication that she prejudged any of the evidence heard. As she has equal facility in the English and French languages, no reliance by her on the translation can be assumed. There is no evidence the arbitrator relied on the translation while conducting the hearing. If there were inaccuracies in the translation, (and no specific instances have been cited to indicate this) the facility of the arbitrator in both languages mitigates against any reliance on erroneous translation if it occurred.

The appellant submits that as he and his counsel were obliged to correct, or object to, the translation, the appellant became irritated, affecting his concentration and this had a negative impact on his ability to provide accurate testimony. The respondent submits the possible discomfort to the appellant is an "occupational hazard" of simultaneous translation but does not lead to a conclusion that the rules of natural justice and procedural fairness have been breached. The respondent further submits the arbitrator's own ruling and statement on the motion that she was not affected by any apparent inconsistency in the translation should be sufficient to dispose of the matter.

Without any determination by the arbitrator on the credibility or weight she assigned to the evidence heard so far, it is difficult if not impossible to say, as the appellant does here, that the arbitrator was necessarily influenced by hearing evidence incorrectly translated. I agree with the respondent that the arbitrator's own statement in that regard, at this early stage in the proceeding, should be accorded significant weight.

The more fundamental question is whether the appellant's own testimony was materially interfered with. On the third day of the hearing, when appropriate translation was available, the appellant could not continue. His evidence-in-chief had been given. His cross-examination was just starting. Any misconceptions or inaccuracies in his testimony could, if not alluded to in the cross-examination, have been raised by way of reply and re-examination.

In the appeal decision Soltan Davoudi-Khakesh and Lloyd's Non-Marine Underwriters (OIC File No. P-000378 released August 19, 1992) I outlined the various factors which might lead to a finding of reasonable apprehension of bias or actual bias, and stated, at page 7:

"The test is whether, taking all considerations into account, the arbitrator closed her mind to being persuaded, or prejudged the issues so as to preclude the acceptance of representations to the contrary and denied a party a fair hearing. Tribunals that are adjudicative, such as the arbitration unit of the Commission, should be expected to comply fairly closely with the standard of judicial neutrality, in every case maintain procedural fairness...".

In this case there is no cogent evidence that the quality of the translation services so interfered with the appellant's initial presentation of his case, nor that the arbitrator has been misled such that she has been or is now biased thereby, and the appellant prejudiced in his right to have a hearing in the French language. On these submissions alone, I would not appoint a new arbitrator under s.283(12) nor do I find the appellant's right to have a fair and impartial hearing has been interfered with.

This does not end the matter. If a new hearing is to be ordered on grounds other than the above, it may indeed be necessary to hold that hearing before an arbitrator who has not heard the testimony to date.

B. New Hearing

The appellant submits his right to a fair and impartial hearing has been irreparably compromised by the failure of the respondent to produce, prior to the start of the examination-in-chief, documents which the respondent now proposes to use in cross-examination of the appellant and other witnesses. The appellant states he cannot now, as cross-examination has started, review matters which may be raised by the documents, instruct counsel and receive professional advice. To fully understand this submission, a brief review of the facts is necessary.

As in all arbitration cases, a prehearing discussion was held pursuant to s.17 of the Dispute Resolution Practice Code. The prehearing arbitrator ordered certain documents be produced by the appellant to the respondent. The respondent made full disclosure of its documentation. However, many of the documents sought by the respondent from the appellant were either not in his possession or were initially not agreed to be produced. Accordingly, both at the prehearing and thereafter, several orders for production were made.

The documents relate to medical treatment the appellant received in the past and his various applications for Workers' Compensation and Canada Pension Plan payments. To obtain these, not only was the appellant's consent necessary but the time periods required by the various authorities to provide them had to be taken into account. Apparently, the respondent wanted access to documentation spanning several years, and reports from doctors the appellant had not been in contact with for a long time.

The respondent submits the appellant could have obtained and reviewed the documents well in advance of the arbitral hearing but chose not to. The respondent also says the appellant, after consenting to production, withdrew his consent just before the hearing started on July 27, 1992. Other documents, it is alleged, were given to the respondent only within a day or two of the start of the hearing. Essentially, the respondent states the appellant's refusal to co-operate, coupled with the Commission's inability to compel proper production, significantly contributed to the delay in receiving documents.

All material received by the respondent was, as conceded by the appellant, promptly turned over to the appellant or his counsel for review. Some of this documentation arrived just in time for the appellant's cross-examination. It is to be noted, however, the appellant did not make any objection during the first two days of hearing to the fact that documents were turned over almost daily.

The appellant submits that proper discovery pursuant to the Practice Code did not take place. To call the exchange of documentation by way of prehearing or order of the arbitrator "discovery" is a misnomer. There is no formal discovery process and a prehearing cannot be said to be a discovery in the traditional sense. It is, though, a method by which each party can obtain relevant information to know what case has to be met.

The appellant states the rules of natural justice were breached when he had no opportunity to review with his counsel documents received at or during the hearing. The hearing started in July notwithstanding the appellant must have been aware all material he had recently consented to produce was not yet available. The respondent presumably was content to proceed on what it had at the time subject to receiving other documents. When the hearing resumed September 29, 1992 a further adjournment was requested and granted to October 26, 1992. It was not until just before the hearing in October that the appellant brought the motion to discontinue the proceedings and start afresh.

The appellant further states that as these are third party documents, his control of them is illusory. While it is true many of them relate to his medical examinations and treatment, the appellant says he cannot recall the precise details nor does he have knowledge of the contents of files residing with those third parties about matters that happened years ago. The appellant states that to continue his cross-examination using these documents without now being able to review them thoroughly in preparation for the examination with his counsel prejudices him as he does not know the case to be met and if controversial issues arise, his ability to call reply evidence or have counsel conduct a re-examination is circumscribed.

In support of his position the appellant cites a number of cases relating to the judicial maxim audi alteram partem (each party has the right to be heard) and generally the principles of natural justice. These principles were reviewed in the Supreme Court of Canada case Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105. The case stands for a number of propositions including that it is the duty of courts to attribute a large measure of autonomy of decision to tribunals and as a result, they must observe the rules of natural justice, listen fairly to both sides, and give the parties a reasonable opportunity to correct or contradict any relevant evidence prejudicial to their views. Furthermore, it was held it is not the court's function to inquire whether the evidence would prejudice one of the parties, it being sufficient if it might do so. The appellant submits to permit the respondent to introduce documents he is not familiar with in cross-examination gives the respondent an unfair advantage.

The appellant also cites Coleman v. Minister of Natural Revenue (1987), 22 A.L.R. 201. The issue there was whether the appellant could view a video cassette he wished to import into Canada, which custom authorities had classified as obscene, in order to prepare for the appeal against the classification. The court held the appellant was entitled to see the video so he could know the case he had to meet and instruct his counsel in an informed way. The distinction between that case and this is the appellant does have a knowledge of the general content of the documents obtained by the respondent. These materials relate to physical examinations and treatment of the appellant; he knows the reasons for the decisions of the authorities involved and he alone could consent to the release of the documents. If the appellant felt he was no longer familiar with these events, or remember the proceedings in which he was involved, it would have been appropriate to request an adjournment before giving his own evidence on the basis that he, too, needed the documentation once the respondent asked for it.

The appellant refers to Stumbilich v. Health Discipline Board et. al. (1984), 7 A.L.R. 184, in which the Divisional Court of Ontario dealt with a complaint by the applicant that she was denied disclosure of documents which the Health Discipline Board had, in its investigative capacity, obtained with respect to certain medical treatment of her father. The applicant could not possibly know what was in the medical reports, x-rays and documents relating to her father nor could she alone be expected to have the expertise to interpret a summary of those documents which the Board might make available to her. A subsidiary issue was whether the Board had the right to require the applicant first try to obtain the documents elsewhere, as it had, before producing them. This case is distinguishable from the one at hand. In Stumbilich there was a refusal to turn over materials the Board had, in its inquisitorial function obtained, even though the applicant could have gotten them from other sources. The documents and medical information were about someone other than the applicant. In this case it is the applicant's own medical treatment and procedures he underwent that are the subject of the material to be introduced.

To the same effect is Re Downing and Graydon (1978), 1978 CanLII 1424 (ON CA), 21 O.R. (2d) 292, 92 D.L.R. (3d) 355 (C.A.) in which the court reiterates the principle that a party has a right not only to make its own case, but also to know the case it has to meet and be given an opportunity to refute it. Again, the issue involved a Board which had investigative powers and had not disclosed to the applicant information on which its ultimate decision was based.

In these cases, disclosure is the key. It is disclosure of material that could not have been within the knowledge, control, or power of the applicants affected and upon which the tribunal or Board in question was basing its decision.

The appellant argues that the principles of natural justice set out in these cases are equally applicable to proceedings before arbitrators of the Commission. I agree. The issue remains whether these principles have been breached by the manner in which this arbitral hearing has proceeded.

The respondent promptly produced any documents it received. The appellant caused, in large part, the delay in production of the material. The respondent continues to disclose all material as it arrives. The appellant could have asked for an adjournment, this being his hearing, before it started in July and indeed sought an adjournment in September. If there was some concern this material might cause him difficulty, the appellant had the option of either not proceeding with his evidence-in-chief or asking that his cross-examination be adjourned pending review of the new material. To characterize what happened in this hearing as a lack of disclosure by the respondent is inaccurate and unfair. The documents are not those of the respondent. The respondent is exercising its right to utilize material previously within the knowledge of the appellant at appropriate stages of the proceeding.

It is open to the appellant, if he believes the arbitrator is being misled during the course of his cross-examination by reference to this material, to call appropriate reply evidence. The appellant can fully instruct his counsel, discuss with him the nature and effect of such evidence to present a reply, and receive counsel's advice.

The respondent states if anyone has been prejudiced in this process, it is the insurer. The respondent claims the inadequacy of production is such that it still does not have sufficient material relating to the appellant to properly present its evidence. As well, to start over now compromises the way in which the respondent is conducting its case. What holds true for the appellant also holds true for the respondent. The insurer can request relief by way of adjournment or other orders from the arbitrator relating to production. To say, at this stage, there has been a denial of a right to a fair hearing is premature. In controlling the process, the arbitrator must weigh the consequences to each party and ensure that each has the right to present its case fully. Where a party concludes the arbitrator may lack sufficient information at a specific point in time, it is up to that party to request appropriate remedies.

C. Expenses

The arbitration and appeal procedures under the Insurance Act have been designed to promote relatively fast, informal and inexpensive adjudication of no-fault accident benefit disputes. There is also a discretion to award expenses to be exercised with these objectives in mind, and the particular circumstances of each case are relevant.

Expenses should be awarded in accordance with the principle first set out in McCormick and Economical Mutual Insurance Company (OIC File No. A-000251) namely, that an applicant is entitled to them unless the action was obviously frivolous or vexatious or the proceedings were unreasonably lengthened as a result of the applicant's conduct. I apply that principle here.

I am also mindful of the appellant's compliance with the terms of the decision to stay the arbitration.

While the appellant has not been successful in this appeal, the issues raised were substantive and, I am persuaded, not raised simply to delay the proceedings or play a tactical game. No expenses were awarded on the application to stay the arbitration. The appellant is entitled to his expenses of this appeal.

IV. ORDER

1. The appeal from the interim order of Frederika Rotter, Senior Arbitrator, is dismissed.

2. The stay of the interim order is hereby lifted and the arbitration proceeding will continue before Senior Arbitrator Rotter on a date to be fixed by the Registrar.

3. The appellant is entitled to his expenses of this appeal.

December 3, 1992

Elisabeth Sachs

Director of Arbitrations