Ontario Insurance Commission
Neutral Citation: 1994 ONICDRG 116 File No.: P-002340
Between: Glenn Epps, Applicant (Appellant) and Co-operators General Insurance Company, Insurer (Respondent)
Before: Elisabeth Sachs, Director of Arbitrations
Appearance: Glenn M.J. Epps (Appellant, in person) Stephen M. Malach, Q.C. (for Insurer, Respondent)
DECISION
I. NATURE OF PROCEEDINGS
By Notice of Appeal filed June 29, 1993, Glenn Epps (the appellant) appeals from the terms of a settlement order dated February 22, 1993. The order, signed by the appellant, Co-operators General Insurance Company (the respondent) and Arbitrator Janice Mackintosh, provides for a lump sum payment to the appellant for all statutory accident benefits claims arising from a motor vehicle accident on August 11, 1991, and refers back to the Commission a determination of certain chiropractic and arbitration expenses if the parties were unable to agree on their amount.
The orders sought by the appellant are:
A stay of the settlement order;
Setting aside the settlement order and a re-hearing of all issues which were the subject of the arbitration proceedings or in the alternative, a new arbitration hearing;
Reinstatement of weekly income, supplementary medical and health, transportation and other benefits from August 10, 1992 onward.
On September 7, 1993 the appellant requested these proceedings be enlarged to include an appeal (later changed to a request for revocation) from Arbitrator Mackintosh's decision on expenses dated September 3, 1993 fixing the arbitration expenses at $3,948.20 with interest in accordance with Ontario Regulation 6721, the former No-Fault Benefits Schedule.
The respondent, by way of a preliminary motion, asks for an order dismissing the appeal from the settlement order on the basis there is no right to appeal to the Director from a consent order and that in any event, the order is supplemental to and embodies the terms of an agreement evidenced by a final release executed by the parties dealing with all of the appellant's statutory accident benefit claims.
The respondent also opposes the appeal (revocation) of the decision on expenses, submitting the arbitrator's decision is based on facts proven in evidence before her and in accordance with O.Reg 664, Dispute Resolution Expenses.
II. BACKGROUND FACTS
To put the relief requested by both parties into context, an appreciation of the chronology is required.
The original proceedings before Arbitrator Mackintosh lasted five days, starting on December 8, 1992 and continuing through December 10, resuming on February 8, 1993 for the day and again on February 10, 1993. At that point the hearing was adjourned with a resumption date set for April 19, 1993.
Following the hearing on February 10, 1993, the appellant, the agent representing him throughout the arbitration and the respondent's counsel discussed potential settlement. They came to terms set out in two documents called the "Settlement Order" and "Full and Final Release". These documents are dated February 22, 1993. The settlement order was signed by the parties and put before the arbitrator for her signature that day. The only issue left to the arbitrator, according to the order, was to determine the amount of expenses due the appellant's agent (which the respondent had agreed to pay) if the parties were unable to agree. The release document, in much the same terms as the settlement order, was signed under seal by the appellant and witnessed by his agent, also on February 22, 1993. A cheque drawn on the respondent's account for $32,500.00 was, as specified in those documents, immediately made available to the appellant.
On April 5, 1993, the appellant launched an action against the respondent in the Ontario Court (General Division) asking the settlement order be set aside, and claiming several million dollars in damages and various benefits under the Schedule.
On April 19, 1993, the date originally set for the resumption of the hearing, the appellant and respondent's counsel appeared before Arbitrator Mackintosh to give evidence and argue the issue of expenses payable, as contemplated by the settlement order. There appears to have been no mention of the court action. A lawyer appeared for the appellant on the issue of chiropractic expenses; otherwise the appellant represented himself.
By Notice of Motion dated and delivered on April 27, 1993, the respondent brought a motion to dismiss the court action on the grounds the court had no jurisdiction over the subject matter (as being within the Commission's purview) and that the action was frivolous, vexatious or an abuse of the court process, as claims asserted in the Statement of Claim had been settled.
On April 28, 1993, the appellant delivered a letter to me, requesting an extension of the 30 day period in which to file an appeal as set out in s.283(2) of the Insurance Act, R.S.O. 1990, c.I-8 (the Act). The letter stated the appellant wanted to "at this time...appeal the settlement order". No Notice of Appeal form or filing fee accompanied the letter.
On May 5, 1993, Mr. Justice Trainor of the Ontario Court (General Division) heard the respondent's motion to dispose of the action, endorsing the motion record as follows:
"Motion granted. Action dismissed. Costs to the defendant fixed at $1,500.00.
The plaintiff chose to arbitrate the issues and is bound by the course taken, the settlement reached and the release he executed."
On May 10, 1993, the respondent replied to the appellant's April 28 letter asking, as a preliminary matter, the appeal be dismissed and providing details of the court action and its disposition.
On June 29, 1993, two months after his initial letter, the appellant filed a Notice of Appeal which, in addition to accident benefit claims, asked for a lump sum award. The Notice of Appeal was accompanied by a ten page Affidavit and a lengthy Brief of documents and sixteen medical reports.
On July 30, 1993, the respondent filed its Response to the appeal and included written submissions on the appellant's request to extend the time for filing the appeal.
On August 12, 1993 the appellant filed written submissions respecting the extension of time to appeal by Affidavit sworn August 10, 1993.
In answer to this Affidavit, the respondent filed additional submissions on the preliminary issues on August 23, 1993.
On September 3, 1993, the arbitrator released her decision on expenses.
On September 16, 1993 at the appellant's request, I agreed to deal with the expenses decision in the context of this proceeding, once the filing fee was received to perfect the appeal. I indicated then and thereafter that the appeal on expenses would be done on the record.
On October 1, 1993 the appellant tendered the appropriate fee.
On December 16, 1993 the parties appeared before me to make oral submissions on the issues of whether the time for appeal should be extended to either April 28, 1993 or June 29, 1993, whether the settlement order was capable of appeal and if so, should it be set aside.
Subsequently the appellant asked the appeal of the expenses decision be changed to a request for revocation of that order. No further submissions on that issue were received.
III. PRELIMINARY MATTERS
(a) Stay of Settlement Order
While the appellant asks the order be stayed pursuant to s.283(6) of the Act, he had acted in accordance with it before evidencing any intention to appeal. He cashed the respondent's cheque and outlined how the funds were spent in his submissions. In furtherance of the order, since there was no agreement on the amount of expenses, he proceeded with a hearing before Arbitrator Mackintosh on that issue. The order was fully complied with by both parties prior to any proceedings before the Director being initiated. There is nothing left in the order to stay. However, a review of the submissions indicates the "stay" asked for is really a request to revoke the order, which is dealt with below.
(b) Extension of Time for Appeal
Section 283(2) of the Act provides that a written notice of appeal is to be delivered to the Commission within 30 days after the date of the arbitrator's order, in this case calculated from February 22, 1993.
The appellant first showed an intention to appeal in his letter of April 28, 1993, more than two months after the order was signed. The Notice of Appeal form with supporting documents was only filed June 29, 1993, more than three months from the expiry of the time period, and four months from the order itself.
However, the Director may, by s.283(3) of the Act, extend the time for requesting an appeal if satisfied the appellant has met a two-fold test that:
there are apparent grounds for granting relief to the person and;
there are reasonable grounds for applying for the extension.
The section, broadly worded as it is, encompasses a number of principles. As stated in Emberley v. Hans, 48 C.P.C. (2d) 2112, an extension of time should be granted if the justice of a case requires it. Also to be considered are the existence of a bona fide intention to appeal, the merits of the proposed appeal, any prejudice to the other party and whether that is compensable or not, and the length of the delay.
In Miller Manufacturing and Development Co. v. Alden et. al., 13 C.P.C. 63, the Court of Appeal noted that looking at the merits of an appeal has been a "decisive element in many cases".
Under the first part of the test, the reasons for appeal set out in the Notice of Appeal, as amplified in written material and oral submissions must be considered.
The appellant's main points throughout are that he entered into the agreement with the respondent and executed the settlement order and release primarily because he felt he was under economic duress, lacked guidance from his agent, and was in his terms "mentally exhausted".
The order sought to be set aside was made on consent. It is well settled law that a consent judgment is final and binding unless it does not express the real intention of the parties, or there is fraud.
The settlement order and the release document are unambiguous. They both indicate that all claims, past, present and future in respect of statutory accident benefits coverage provided by the respondent, those which were the subject of the arbitration proceedings, and any claims which might be advanced in the future, were being disposed of by payment of a lump sum and amounts to be assessed for a chiropractor's bill and agent's expenses. The order itself does not modify the release except to the extent that it reserves to the arbitrator a determination of the proper amount of the agent and chiropractic expenses if disputed.
The chronology and materials filed demonstrate:
The appellant initiated settlement discussions during the arbitration proceedings. Several offers and counter-offers were made resulting in the appellant receiving money which he retained for his own use;
The appellant was independently advised by an agent of his choice;
The appellant was represented by his agent at the arbitration hearing and until a month subsequent to the signing of the documents;
The appellant did not try to avoid the terms of the order. Quite the contrary, he acted in accordance with them by referring determination of his agent's and chiropractic expenses to the arbitrator on the date originally set for the resumption of the arbitral hearing;
The appellant took no steps to change, or resile from, the order for a significant period of time, firstly by way of court action and when that proved unsuccessful, through the Commission.
The order and the release document are clear on their face. The grounds for appeal raised by the appellant do not persuade me that the documents do not reflect the true intention of the parties, or that the appeal has merit on an issue of fact or law.
In all of the circumstances, I find there are no apparent grounds to grant an extension of time to file an appeal. In so finding, it is not necessary to consider whether there are reasonable grounds for applying for the extension.
As a result, I also need not consider if there is prejudice to the respondent or the effect, if any, of the order not embodying a term barring an appeal, variation or revocation as it might have done pursuant to s.22.2 of the Dispute Resolution Practice Code (the 'Code').
IV. REVOCATION OF THE SETTLEMENT ORDER
Notwithstanding my refusal to extend the time for appeal, the material discloses the appellant is asking, as an alternative, the order be revoked pursuant to s.284(1) of the Act and a new arbitration hearing be held. No time limit is set out in the legislation to apply for such relief.
The Director, or an arbitrator appointed to determine the matter under s.284(2) of the Act may revoke an order and make a new one if satisfied, as outlined in s.284(3) of the Act, that:
there has been a material change in the circumstances of the insured; or
evidence not available on the arbitration or appeal has become available; or
there is an error in the order.
Under these criteria, whether a settlement order is capable of appeal is not an issue. There is no question, although the arbitrator did not render a decision resulting in the order here, s.284 is not in terms similar to s.283 respecting appeals. Section 283(1) refers to an appeal of "the order of the arbitrator", harkening back to s.282(13) which indicates once an arbitrator makes a decision, he or she shall deliver an order with reasons.
Settlement orders as contemplated under s.22.2 of the Code normally contain a provision barring an appeal, variation, revocation or judicial review of that order. As the appellant points out, this settlement order has no such wording and he submits it should not be read in. I do not need to decide this issue. The appellant asks an order be revoked. Section 284(1) provides that either party to an order may make the request. It does not detail the type of order contemplated.
Revocation is only available in the limited circumstances of s.284(3). None of those exist in this case. The evidence given during the five day arbitration hearing is immaterial as the arbitrator did not render a decision.
It is not alleged the settlement order was in error as to the terms the parties submitted to the arbitrator for signature only. Indeed, both parties complied with it thereafter.
The only change in the appellant's circumstances is that he now has received a lump sum payment in lieu of asserting further claims. In retrospect, the appellant may believe he should be entitled to more, or not have concluded the case as he did. These factors do not constitute a change in circumstances as required by the section.
I find there are no grounds to revoke the settlement order.
V. APPEAL FROM DECISION ON EXPENSES
The appellant appealed the arbitrator's decision on expenses within a few days of its release. As already noted, these matters were referred to the arbitrator in accordance with the settlement order and release. Nothing in those documents, however, precludes the appellant from challenging the decision.
For reasons best known to the appellant and not obvious from the submissions, the appellant changed his appeal to a revocation application once he was advised it would be dealt with on the record. The record consists of the decision itself, the exhibits noted by the arbitrator (including those as necessary from the original arbitration hearing), the appellant's written submissions filed October 1, 1993 and the written submissions of the respondent.
The respondent objected to the inclusion in the appellant's material of a letter dated March 19, 1993 from respondent's counsel to the appellant detailing offers with respect to the chiropractic and arbitration expenses. The respondent took the position this letter was a "without prejudice" settlement offer on those issues and should not be before me. I find these offers are not relevant to a determination whether the arbitrator's decision should be overturned or revoked.
Although the appellant is applying for a revocation of the expenses decision, none of the elements required for revocation in s.284(3) are present. Giving him the benefit of the doubt, the appellant's submissions are truly in the form of an appeal: that is, he objects to calculations made by the arbitrator; times she found compensable for preparation for the hearing; the amount of appropriate out-of-pocket expenses, findings of fact regarding the use of a court reporter; and quantification of the costs for various doctors' reports.
For the most part, the appellant takes issue with the arbitrator's findings surrounding the use or necessity of certain documents and witnesses and whether various expenses were supported by receipts or were reasonable.
The appellant also asks the Commission to require transcripts of evidence be obtained, certain entertainment expense receipts be ordered produced by the respondent's counsel, and thereafter an oral rehearing of the expenses issue take place.
The respondent counters with its submissions on the arbitrator's findings stating the arbitrator's decision was in accordance with s.282(11) of the Act which provides an arbitrator may award such expenses as prescribed in the Regulations. Permitted expenses and maximum amounts are set out in a Schedule to the Code as well as O.Reg. 664, Dispute Resolution Expenses.
The respondent states the findings of fact were consistent with evidence the arbitrator received, both orally and in documentary form. Her references to the Legal Aid Tariff manual, prepared in accordance with the Legal Aid Act, its Regulations and Schedules were, it is submitted, a proper guideline in determining the expenses for the services of an agent. The respondent further submits the arbitrator gave appropriate weight to the evidence presented and where her discretion needed to be exercised, she did so judicially within the parameters of the legislation.
The expenses decision is a detailed 21 page document which includes charts broken down by expense categories, claims of each party, and calculations. All specifically claimed items are reviewed, including those for stationary and office supplies, entertainment expenses (where receipts are missing) mail costs, parking, use of printers, clerical services, photocopying and so on. The arbitrator allowed certain of these expenses but declined to award entertainment expenses, among others. The appellant makes much of this. I find the lack of receipts for the entertainment expenses, as an example, was not material. The arbitrator stated those expenses are not reimbursable, whatever their amount, under the Regulation in this case.
The Schedule of Expenses is discretionary. The word "may" is used in each of the sections detailing the types of fees and expenses which can be awarded. The arbitrator is limited by a maximum which may be awarded for some expenses, and is called upon to determine the reasonableness of others. In each case, the arbitrator must receive evidence, weigh it and then use her judgment in determining what evidence to accept, its credibility, and the weight to be attached to it.
The oft-stated principle, first outlined in Calogero and The Co-operators General Insurance Company, (OIC File No. P-000251, February 13, 1992) is that an appellate function should not overturn findings of fact and interfere in the discretion exercised by an arbitrator unless the conclusions drawn have insufficient or no evidence to support them. However, while the Director must re-examine the evidence to ensure that the conclusions are supportable and no errors in fact or law were made, it is not the Director's role to substitute her own assessment for the arbitrator's. I reviewed the exhibits and find references to them in the decision are accurate, and I cannot conclude the arbitrator had little or no support for her findings.
The Director can only interfere on appeal if there is a specific reason or error putting the arbitrator's conclusions into doubt. (See Kahkesh and Lloyd's Non Marine Underwriters, (OIC File No. P-000378, August 19, 1992).
The appellant objects that the amount the arbitrator found reasonable for the expenses of his agent was less than he alleges the respondent was at some point prepared to pay and he himself did pay. That is not a proper consideration here. I find nothing in the evidence to show the arbitrator has misdirected herself or applied the wrong principles in determining the agent's expenses as she did.
Throughout, the appellant had the onus of proof that expenses claimed were within the Regulation and reasonable. On review, I find the arbitrator did not err in her assessment that there was no justification for awarding amounts for laser printers, note takers and similar expenses which the appellant argues were necessary in the conduct of his case.
As to charges for medical reports and witness expenses, the arbitrator applied the appropriate criteria in determining which expenses were allowable and reasonable, and in what amount.
In summary, the arbitrator had more than sufficient grounds for the findings of fact she made, the weight she ascribed to the evidence and the conclusions she drew in her analysis of the expenses. This is not a case where the Director should impose a different assessment for that of the arbitrator.
VI. EXPENSES
The appellant requests his expenses of these proceedings which is vigorously opposed by the respondent, arguing the appeal or revocation requests were brought frivolously and vexatiously.
While I recognize the appellant was not represented by legal counsel, he showed himself in the written submissions and oral presentation before me to be intelligent and knowledgeable. He fashioned his arguments to maximize the opportunities to set aside the settlement order and expenses decision. The issues raised were not simple and required an in-depth review, but ultimately were not resolved in the appellant's favour.
The respondent was put to considerable time and expense in a situation where it had, not surprisingly, regarded the case as closed. The proceedings were brought in respect of matters dealt with at length both in the arbitration process and between the parties.
I decline to award expenses in this case.
VII. ORDER
The request for an extension of time to file an appeal herein is denied.
The request for revocation of the settlement order is dismissed.
The appeal from the decision of Arbitrator Janice Mackintosh dated September 3, 1993 is dismissed.
The appellant is not entitled to expenses of these proceedings.
December 14, 1994
Elisabeth Sachs Director of Arbitrations
Date