Office of the Director of Arbitrations
Neutral Citation: 1994 ONICDRG 82
File No. P-002185
BETWEEN:
GHANIMAT-ALLAH FAHANDAZH SAADI
Applicant (Appellant)
and
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer (Respondent)
APPEAL DECISION
I. NATURE OF PROCEEDINGS
By Notice of Appeal filed May 13, 1993, Ghanimat-Allah Fahandazh Saadi (the appellant) appeals from the decision of Arbitrator K. Julaine Palmer, dated April 15, 1993 which, in the particular circumstances of this case, dealt only with the issues of a claim for expenses of the proceedings from The Dominion of Canada General Insurance Company (the respondent), and the respondent’s claim for a refund of the assessment fee paid pursuant to s.14(3) of the Insurance Act, R.S.O. 1990, c.I-8 (the Act) and O.Reg. 220/91, s.4(1).
The appellant, who had counsel at the arbitration hearing, represented himself in this appeal. The remedy sought is set out in the Notice of Appeal as follows:
“re-establishment of benefits as requested at mediation (including interest on late payments) in addition to payment of expenses when undergoing independent medical examination during arbitration process in 1993.”
The appellant also asks for an oral rehearing. Attached to the Notice are reasons for appeal which can best be characterized as an attempt to introduce additional evidence about why the appellant withdrew his application for arbitration at the start of the hearing.
The respondent submitted a “Reply” to the Notice vigorously contesting the right of the appellant to appeal the arbitrator’s order and responding specifically to allegations about its, and its counsel’s, conduct during the arbitration process. In further support of its position, the respondent tendered the Affidavit of the interpreter engaged by the Commission for the hearing, a lengthy medical report, and a Notice of Action issued out of the Ontario Court (General Division) by the appellant in connection with the same automobile accident for which statutory accident benefits were claimed in arbitration. The respondent is not a named defendant in that action.
None of the above-noted material was before the arbitrator because of what transpired when the hearing began.
A transcript of the proceedings was filed. The first statement made to the arbitrator by the appellant’s counsel was he had been informed by the appellant he did not want to proceed with an arbitration hearing. This was followed by an exchange between the arbitrator and the appellant.
The arbitrator wanted to make very sure this was not a case of a client simply discharging his counsel, but that the appellant was determined to withdraw the application before her. During the course of this discussion the appellant reiterated he had lost confidence in his lawyer and the arbitration process, wanted to refer his benefits claims to a court and objected to any continuation of the hearing before the arbitrator.
The respondent did not object to the appellant’s proposed withdrawal although it had put forward a claim for repayment of weekly income benefits allegedly paid in error. The respondent, when invited by the arbitrator to make submissions on this point, elected not to call any evidence and did not pursue the matter.
Counsel for the appellant then asked the arbitrator to consider awarding the appellant his arbitration expenses. Respondent’s counsel also requested a refund of the assessment fee paid. These two issues were argued and resulted in the arbitrator’s decision now being appealed.
II. PRELIMINARY MATTERS
1. Jurisdiction of Director
Section 283 and following of the Act provide that the order of an arbitrator may be appealed to the Director who may then determine it on the record, by way of a rehearing of all the issues before the arbitrator, or partly on the record and partly by way of rehearing. The Director may then confirm, vary, or rescind the arbitrator’s order or substitute his or her own order.
An arbitrator’s order may also be varied or revoked by the Director under s.284 of the Act if a number of conditions are met.
The appellant is asking for an oral hearing on entitlement to weekly income benefits and an order reversing the arbitrator’s decision denying him his expenses of the arbitral proceedings.
There has been no hearing and no order in respect of weekly income benefits. No exhibits were filed before the arbitrator. Entitlement to statutory accident benefits has neither been found, nor denied. The matter was not arbitrated. The Director has no jurisdiction to hold a hearing, or determine the matter on the record (in the absence of one, as here) in this situation.
That leaves the issue which was the subject of the order, namely the appellant’s claim for expenses incurred in the arbitration process prior to his withdrawal. Before determining this aspect, I must deal with an Affidavit and other documentation submitted for consideration on appeal.
2. Fresh Evidence
In an attachment to the Notice of Appeal entitled “Reasons for Appeal” the appellant gives his version of the events leading up to his withdrawal, including his reaction to the presence of a stenographer and an interpreter at the hearing.
In a letter to the Registrar of the Dispute Resolution Group dated September 9, 1993, the appellant again set out his request for an oral hearing and included submissions respecting the doctor’s report attached to the respondent’s reply material, all of which had been served on the appellant.
The respondent also requested consideration of documentation not before the arbitrator, some of which presumably would have been entered in evidence had the hearing been held. The Affidavit of the interpreter, of course, was not material available at the hearing and was necessitated, in the respondent’s view, because of the personal nature of the allegations made by the appellant. The medical report speaks to disability and causality, also not issues before the arbitrator.
Neither the appellant’s nor respondent’s material has any relevance to what ultimately was submitted for decision. The transcript shows the appellant forcefully making the point that he did not want to proceed with the arbitration and would take his dispute elsewhere. The reasons he gave the arbitrator for wanting to withdraw bear only passing resemblance to the reasons now put forward on appeal. As the “new evidence” submitted by both parties is unrelated to the issue before me, I decline to admit it.
III. ORAL REHEARING
The arbitral record is before me, as are the transcript and written submissions of the parties. In my view, the record is comprehensive. The decision details the issues before the arbitrator, her findings, and the conclusions drawn. I previously advised the parties in writing that no oral submissions were necessary, and this appeal is being determined on the record pursuant to s.283(4) of the Act.
IV. ISSUE & FINDINGS
The facts are straightforward. At the beginning of the arbitration, before any evidence was called, both counsel and the appellant advised the arbitrator the latter wanted to withdraw his application for arbitration. The arbitrator, treating this as a motion to withdraw, invited the respondent to make submissions. It did so on the issue of a refund of the assessment fee paid in respect of this proceeding. Counsel for the appellant then requested an order for expenses including fees for his services and disbursements in the obtaining of various reports.
Before the hearing, a number of proceedings had taken place. There were four pre-hearing conferences (motions included), one of which was by personal attendance. No prior notification of the withdrawal was given to the Commission or the respondent. The hearing was in Ottawa. The Commission provided an interpreter as well as an arbitrator for that location, while the respondent engaged a stenographer and made arrangements to call oral evidence.
In exercising her discretion to award or refuse expenses the arbitrator summed up as follows:
“In this case, at the beginning of the hearing, the applicant moved to withdraw his application. He did this, not because he wished no longer to contest the termination of his benefits, but contending that he will now bring this matter before the civil courts. He has indicated he wishes a change of forum. In my view, his action may be seen as capricious and, in the language of McCormick, he has “unreasonably prolonged the proceedings”.” (p.8)
The arbitrator declined to award the appellant his expenses. No cogent argument was advanced as to why I should interfere with that exercise of discretion. Accordingly, the appeal from the denial of expenses is dismissed.
V. EXPENSES
The appellant is unsuccessful in this appeal. The respondent contends the appeal was vexatious and an abuse of the statutory dispute resolution scheme. Having chosen to withdraw from the arbitral proceedings which he instituted to adjudicate his claim to weekly income benefits, the appellant now seeks the same relief on appeal which derives its jurisdiction from the very process he chose to abandon. The appellant is not entitled to any expenses of the appeal.
VI. ORDER
The appeal from the decision of Arbitrator Palmer is dismissed.
The appellant is not entitled to expenses of the appeal.
September 13, 1994
Elisabeth Sachs Director of Arbitrations
Date