Neutral Citation: 1994 ONICDRG 52
P-002705
ONTARIO INSURANCE COMMISSION
BETWEEN:
FAHIMEH ABEDI
Applicant (Appellant)
and
PILOT INSURANCE COMPANY
Insurer (Respondent)
Before:
Elisabeth Sachs
Director of Arbitrations
Counsel:
John J. Lawlor, Q.C. Rudolph Lobl, Q.C.
(for Applicant, Appellant) (for Insurer, Respondent)
APPEAL DECISION
I. NATURE OF PROCEEDINGS
By Notice of Appeal filed May 10, 1993, the applicant, Fahimeh Abedi (the appellant) appeals from the decision of Arbitrator David Draper dated May 3, 1993 holding an arbitration hearing could not proceed as the appellant had reached a final settlement of her dispute with Pilot Insurance Company (the respondent) about her entitlement to statutory accident benefits under Ontario Regulation 6721, the former No-fault Benefits Schedule.
Except for oral submissions made by counsel before me, the appellant represented herself. The Notice of Appeal requests an oral hearing on the issue of the appellant's entitlement to weekly benefits, supplementary medical and rehabilitation benefits, and care benefits with interest. In effect, the appellant asks for an order reversing the arbitrator's findings that a settlement was reached during the arbitration pre-hearing process.
(a) Preliminary Objection
The Notice of Appeal and written submissions were prepared by the applicant herself without legal assistance. She framed the issue on appeal as follows:
"I have ongoing pain and have continuous medical expenses. You can refer to my doctor's report outlining my injury. Severe pain caused by damaged nerve which is a long-term disability. I have to be going for message therapy three times per week. Cost per visit $58.85. I think this is a just reason for appeal."
She requests an oral re-hearing in the following terms:
"prefer to discuss openly with all evidence available".
The respondent objects to the Notice of Appeal on the basis that it does not set out an appeal of the arbitrator's order but rather requests the Director to conduct a hearing on the very issues the arbitrator determined were settled. The respondent submits s.29.2 of the Dispute Resolution Practice Code (the Code) and s.283 of the Insurance Act R.S.O. 1990, c.I-8 (the Act) limit the Director's jurisdiction on appeal to consideration of only those issues before the arbitrator included in the order; in this case, a finding that a release executed by both parties sets out the final settlement of their dispute which is binding.
It does not matter, ultimately, how the Notice of Appeal was framed. As a layperson with limited English language skills, the appellant is not to be held to the standard expected of professional advocates in the completion of prescribed forms or pleadings.
The appellant's written submissions also reflect her claim to an arbitration hearing, particularly on the issue of supplementary medical and rehabilitation benefits, couched in terms of "re-opening" the arbitration. Those submissions confirm the relief sought as a setting aside of the arbitrator's order. Accordingly, I find the appellant has brought herself within the parameters of the Director's jurisdiction on appeal.
II. SUBMISSIONS & FINDINGS
There is no transcript of the hearing but the essential facts are not in dispute. The arbitrator sets them out at pages 5 to 8 of his decision. The appellant, while represented by counsel familiar with her situation and acting for her with respect to a previous automobile accident, decided to proceed to arbitration after mediation in this case without his help. The appellant's first language is not English. During the course of one of several pre-hearing discussions, the appellant and respondent apparently came to an agreement on a lump sum settlement and signed a release which evidenced that settlement.
The present dispute between the parties involves the consequences which flow from a lump sum offer made by the appellant, its acceptance by the respondent, followed by the execution of the release document drafted in legal language. Throughout the hearing, the arbitrator found the appellant forthright about her understanding of what was being negotiated, and her conduct during the pre-hearing discussion held April 5, 1993 which ended with the signing of the release.
The appellant submits she revoked her proposal to settle the dispute shortly after signing the release. She concedes there was no fraud, undue influence, over reaching on the part of the respondent, or mistake the time. There is no allegation the respondent forced execution of the document or threatened adverse consequences if it was not signed.
Counsel for the appellant argued there is an inherent disadvantage to insured persons who are unrepresented in the arbitration process. The presiding arbitrator must be certain that any settlement reached without legal assistance is fair, particularly where there is a full and final release of further claims. The appellant suggests the arbitration system works against legally unrepresented applicants as they are not familiar with an adversarial, rule-based system of negotiation and adjudication. It is submitted the parties were unequal in bargaining power as the respondent was represented by experienced counsel and the pre-hearing arbitrator could not provide advice or advocacy services to the appellant.
The appellant's essential submission is a settlement was reached but in the circumstances of this case should be set aside because it is unfair or alternatively, because the inequality of bargaining position was such that the agreement should not be enforced.
In response, the respondent notes the settlement was not made in haste or isolation. At least two appearances before, and two telephone conferences with, a pre-hearing arbitrator took place. On each occasion, the Commission supplied the services of an interpreter for the appellant. The appellant was urged by the pre-hearing arbitrator to seek both medical and legal advice at the first attendance and, specifically legal assistance, at the second. The appellant declined to do so. The last time the parties met, the interpreter who was present signed as a witness to the release.
The offer which formed the basis of the release was an amount proposed by the appellant. The respondent, prior to the pre-hearing, had prepared a release document setting out its final offer and changed the dollar figure it was willing to pay after accepting the appellant's proposal.
The unchallenged findings of the arbitrator are that the appellant understood the case would be over if the release was signed, and the sum she requested was an amount for all outstanding benefit claims to be paid. Importantly, the arbitrator accepted the appellant's testimony that she knew if she signed the release, no future claims were possible and no arbitration hearing would be held.
Regardless of how the release was worded, the respondent says there was a valid settlement and the appellant understood there could be no additional claims presented once her offer had been accepted. Although she may have had doubts after concluding the settlement and may even have been mistaken as to her ongoing disabilities, these factors do not permit a setting aside of an otherwise valid agreement. In support of this position, the respondent relies on Thorburn v. Danforth Bus Lines, 1954 CanLII 142 (ON HCJ), [1955] O.R. 494.
The validity of the settlement is not the nub of the dispute. I am satisfied from the submissions made before me that the parties were ad idem and a contract was formed. The conditions necessary for a binding agreement converged just prior to all parties signing and initialling the release document. The appellant made an offer, the respondent accepted it and the agreement was made. The following day, the lump sum amount was sent to the appellant.
Starting at the bottom of page 9 of his decision, the arbitrator sets out the evidence he heard, the weight ascribed to it and the conclusions drawn. In the absence of an allegation the facts are not supported by, or insufficient weight given to, the evidence there is no reason to disturb those findings.
The arbitrator expressed grave concern about the appellant's unrepresented status. In analysing the evidence, he looked for signs of unconscionability or undue influence, inequality of bargaining power or other vitiating factors which he concluded were not present. The arbitrator took into account that very shortly, possibly within several minutes, after signing the release the appellant began to doubt whether she should have done so. Given all the circumstances surrounding the transaction, the arbitrator held that a binding agreement was reached and facts which might lead to setting it aside, not found.
I appreciate the appellant's viewpoint: she had an initial settlement figure of approximately $5,000.00 in mind, she reconsidered that position, offered to take a compromise amount of $2,640.00 in full knowledge of her then medical circumstances, signed the release but thought about it again and took steps she thought appropriate to resile from the agreement thereafter.
In each settlement there is a balancing act between what may be gained and what may be lost in coming to a compromise position. Second thoughts are not uncommon in this process. The best settlement may not leave either party fully satisfied. Each knows there are trade-offs and concessions made.
The appellant states she has ongoing pain and medical expenses which may be related to the accident giving rise to her claims, or to a pre-existing set of conditions including a prior automobile accident. It is not suggested these affected her actions at the pre-hearing. While the appellant may have wanted to step back after signing the release, it was too late. The time for reflection and reconsideration expired once she put her signature on the document.
The suggestion that persons in the position of the appellant are necessarily at a disadvantage in pre-hearing and arbitration proceedings is not justified. Arbitrators and other staff of the arbitration unit of the Commission are sensitive to this matter. In this case, the pre-hearing arbitrator, directly and through the interpreter confirmed and reconfirmed the nature of the process, the advisability of seeking advice, and reiterated a settlement would finish the case. The pre-hearing arbitrator recognized the appellant was acting on her own without the benefit of legal advice and did what she could in those circumstances to ensure the appellant fully understood the procedures, process and consequences. The options were explained to the appellant and all the evidence of the respondent, including a video tape, disclosed. Any inequality in bargaining position that might exist, I find was overcome by the actions of the pre-hearing arbitrator, the appellant's ability to comprehend and appreciate the consequences throughout, assisted where necessary, by an interpreter and the actions of respondent's counsel who did not pressure the appellant to decide as she did.
It is not the arbitrator's role to consider what is "fair" to the parties in the sense of reviewing an agreement's adequacy. The freely made choices of the parties, whether represented or not, are and remain their own responsibility.
Arbitrator Draper comments the appellant was proposing a cooling-off period should apply. Since the decision, the Act and Regulation 664 (O.Reg. 780/93) have been amended to provide for this. However, the Regulation came into effect January 1, 1994 and does not operate to assist the appellant as the settlement under consideration took place before that date.
III. ORDER
The appeal from the decision of Arbitrator Draper is dismissed.
The appellant is entitled to her expenses of this appeal limited to preparation and appearance of counsel before me for oral submissions. In the event the parties are unable to agree as to amount, they may make submissions in writing and I will assess the expenses.
June 22, 1994
Elisabeth Sachs Director of Arbitrations