Office of the Director of Arbitrations
Neutral Citation: 1995 ONICDRG 39
File Numbers: P-008657, P-008665, P-008666, P-008667, P-008668, P-008669, P-008670, P-008671, P-008672, and P-005594
Between:
Michaelu Haile, Berhane Debessay, Efrem Debessay, Lemlem Debessay, Yohannes Debessay, Habtom Debessay, Fesseha Debessay, Aster Debessay, and Eden Debessay Applicants (Appellants)
and
Old Republic Insurance Company Insurer (Respondent)
Appeal Decision
I. Nature of Proceedings
By Notice of Appeal filed January 16, 1995 Michaelu Haile et. al. (the appellants) appeal the decision of Senior Arbitrator Susan Naylor, dated January 6, 1995 dismissing their motion for an interim award of expenses, sought from the Old Republic Insurance Company (the respondent) in the amount of $29,358.00.
The appellants are seeking an order requiring the respondent to pay the claimed expenses on the basis that the arbitrator, as set out in the Notice of Appeal "failed to properly apply the standards for determining whether interim expenses should be ordered to be paid". The appellants also checked off the box asking for a rehearing of the issue.
The respondent submitted a Response to Appeal form stating simply the decision "is correct and that in the circumstances of the case there is no reasonable basis for an appeal".
As the motion was based on affidavit material and oral argument, there is no transcript. No new evidence was tendered for possible consideration on an appeal. Neither party provided written submissions as required in s.26 and 27 of the Dispute Resolution Practice Code. The record therefore comprises the Notice of Appeal, the Response, and material before the arbitrator on the hearing of the motion.
The appeal is concerned with the "standards" applied in determining whether as a matter of law, interim expenses should be awarded in this case. The arbitrator discusses in detail her interpretation and application of the criteria she found applicable, the parties views and the evidence presented. Arguing afresh, on appeal, interim expense motions which are generally summary proceedings, is not a practice to be encouraged. This case is not one for a rehearing, or more correctly, a reargument where nothing new is presented. Accordingly, this appeal is being determined on the record pursuant to s.283(4) of the Insurance Act, R.S.O. 1990, c.I-8 as amended.
II. Issue & Findings
The facts outlined in the arbitrator's decision are not in dispute and do not need to be repeated here. The issue to be decided in respect of each of the appellants is whether he or she is entitled to certain benefits in accordance with s.11 of Ontario Regulation 6721 as a result of a motor vehicle accident in which Tesfa Debessay was fatally injured. The claim put forward on the motion is primarily for travel expenses to attend the arbitration hearing in Ontario. These expenses are not those of proposed witnesses but of the parties themselves - nine persons living in Ethiopia who are now 8 years of age and up. The evidence does not differentiate among the appellants other than indicating their relationship as parents and siblings of the deceased.
The proposition put to the arbitrator is that the expenses are necessary to allow oral evidence to be given in person by the parties. Nothing in the record indicates why the testimony of minor children would be necessary to prove any dependency claims. Nothing in the record indicates why other forms of evidence, documentary or electronic, cannot be tendered as possible alternatives. As for the documents provided on the motion, the best that can be said about them is that they show, from time to time, Mr. Debessay appears to have transferred funds to Ethiopia and certain individuals, not related to the parties or the deceased may have been aware of some financial assistance apparently rendered to the appellants, which may be attributed to Mr. Debessay.
It is not the Director's role on appeal to review the evidence as if hearing the matter for the first time. I take the material as submitted, and view it from the perspective of whether the arbitrator has misdirected him or herself in construing the evidence or has come to conclusions wholly unsupported by it. Here the appellants do not question the findings made but say the arbitrator incorrectly exercised her discretion by utilizing inappropriate criteria to determine whether the order sought should be granted.
Several arbitral and court decisions were referred to. At page 3 of her decision, the arbitrator reviews and accepts in principle, certain statements made in George Bernicky and Guardian Insurance Company of Canada (OIC File No. A-006268, July 6, 1994) as appropriate to a determination of what factors will be looked to when interim expenses are requested. It is noteworthy that the Bernicky case involved a claim for interim expenses to obtain medical records and reports, and not to secure the attendance of a party at the arbitration.
Senior Arbitrator Naylor's decision essentially turns on whether the arbitration application itself raises a bona fide issue. The additional factors noted in the Bernicky case (whether expenses claimed are reasonable and necessary for the conduct of the hearing and whether an applicant is able to provide for them) were not considered given the arbitrator's conclusion on the broader issue of whether this application disclosed "a case of sufficient merit to warrant pursuit" as noted in the cases referred to on page 4 of the decision.
The criteria set out in the Bernicky case are a useful touchstone for assisting arbitrators in exercising their discretion to make interim expense awards. In some cases, greater weight may be placed on one of the listed factors over another. In others, it may be appropriate for all of the considerations to be met. There may be, in some cases, as yet unconsidered matters which will weigh in the balance. The category of what may be relevant or appropriate criteria for making such interim orders cannot be considered closed, or limited by the Bernicky case.
The overriding principle, it seems to me, is that the arbitrator's discretion should be exercised judicially having regard to the usually limited information available on such motions. In this case, the information is less than limited. It is exceptional enough that the claimants' own material is not before the arbitrator, but the paucity of the evidence presented makes it difficult if not almost impossible, to assess whether a realistic case is being made out.
It concerns me that in this particular circumstance, the allegation essentially is the claimants cannot make out a case at all without these expenses being awarded, as they cannot otherwise present their evidence. Between the lines, I read an allegation that the claimants will be denied the opportunity to a fair hearing if their travel and accommodation costs to come to Ontario from Ethiopia are not paid for by a respondent whose liability to pay any benefit has yet to be established. However, no other possibilities were canvassed nor has any significant thought apparently been given to whether the personal attendance of one or some of the claimants might be necessary for a fair hearing or whether other forms of reliable evidence could be pursued. In the absence of any of these, I cannot fault the arbitrator's characterization of the facts and the exercise of her discretion in refusing to make the interim expense award. The appeal therefore fails with no order as to expenses.
III. Order
The appeal from the decision of Senior Arbitrator Naylor is dismissed.
There will be no order as to expenses of this appeal.
April 24, 1995
Elisabeth Sachs Director of Arbitrations
Date