Mohamed Mussa v. Allstate Insurance Company of Canada, 1996 ONICDRG 16

Neutral Citation: 1996 ONICDRG 16

File No. P-003598

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BETWEEN:

MOHAMED MUSSA

Applicant (Appellant)

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer (Respondent)

APPEAL DECISION PRELIMINARY ISSUE - EXTENSION OF TIME

I. NATURE OF PROCEEDING

An arbitration hearing was held before Senior Arbitrator Rotter on January 17, 1994, to determine Mr. Mussa's entitlement to weekly income benefits. Mr. Mussa was represented by an agent, Mr. David Gian. After Senior Arbitrator Rotter denied his request for an adjournment, Mr. Mussa left the hearing. Mr. Gian remained, but presented no evidence and made no submissions in support of Mr. Mussa's claim.

Prior to the release of Senior Arbitrator Rotter's decision, the Commission was contacted by Mr. Arthur Yallen, a lawyer representing Mr. Mussa. He asked for an opportunity to present Mr. Mussa's case. He was advised that the arbitration decision was pending, and that Mr. Mussa's could appeal the decision if it was unfavourable.

In a decision, dated November 15, 1994, Senior Arbitrator Rotter dismissed Mr. Mussa's claim for weekly income benefits. Mr. Mussa appealed the decision, but his Notice of Appeal was not received by the Commission until February 3, 1995. The Allstate Insurance Company of Canada ("Allstate") takes the position that Mr. Mussa's appeal should be dismissed because it was not filed within the statutory time period.

The preliminary issue to be determined is whether the time limits should be extended to allow Mr. Mussa to proceed with his appeal. This decision is based on the record, without any oral appeal hearing.

II. ANALYSIS AND FINDINGS

An arbitrator's decision may be appealed by delivering a notice of appeal to the Ontario Insurance Commission ("the Commission") within 30 days after the date of the decision¹. Although the legislation establishes a 30-day time limit, it is not absolute. The Director, or her delegate, may extend the time period for appealing an arbitration decision if satisfied that:

(a) there are reasonable grounds for applying for the extension; and

(b) there are apparent grounds for granting the relief sought².

This is a discretionary decision that will depend on the particular facts of each case. The facts in this case, as I find them, are as follows.

1. Mr. Mussa was involved in an automobile accident on February 18, 1992.

2. Allstate paid Mr. Mussa weekly income benefits under section 12 of the Schedule from February 25, 1992 to August 18, 1992.

3. Allstate claims that it arranged four medical appointments that Mr. Mussa failed to attend, and is seeking reimbursement of the $1,153 that it paid for the missed appointments.

4. Mr. Mussa felt that he continued to be entitled to weekly income benefits and, therefore, he applied for mediation. The Report of Mediator, dated November 20, 1992, indicates that he was represented by a lawyer during the mediation. The dispute was not resolved.

5. At some point, Mr. Mussa retained the services of an agent, Mr. David Gian. Mr. Gian submitted an application for arbitration on behalf of Mr. Mussa, dated July 25, 1993, claiming weekly income benefits from August 18, 1992, onwards. Allstate filed its response on August 17, 1993.

6. A pre-hearing conference was scheduled for October 5, 1995. Notice of the pre-hearing was sent to both Mr. Mussa and Mr. Gian.

Mr. Mussa claims that he did not receive this notice, and was not advised of the pre-hearing by Mr. Qian. I accept that he was unaware of the pre-hearing date. The notice was sent to Mr. Mussa at the address on file for him: 25 Shuter Street. Apparently, however, his correct address is 275 Shuter Street.

7. On October 5, 1993, Mr. Ian Kirby, Barrister and Solicitor, attended the pre-hearing on behalf of Allstate. Neither Mr. Mussa nor his agent, Mr. Qian, were there. After waiting for 30 minutes, Arbitrator Mackintosh proceeded with the pre-hearing. In her pre-hearing letter, dated October 7, 1993, Arbitrator Mackintosh set out the issues to be determined in the arbitration hearing, as follows:

(a) Is the Applicant entitled to payment of weekly income benefits in the amount of $288.50 from August 18, 1992, under section 12 of the No-fault Benefits Schedule?

(b) Is the Insurer entitled to reimbursement of $1,153.00 paid by it in respect of the Applicants failure to attend medical appointments arranged by the Insurer for the medical examination of the Applicant.

(c) Is the Applicant entitled to interest and expenses.

Arbitrator Mackintosh also dealt with the production of documents. She order that by October 22, 1993, Mr. Mussa was required to provide Allstate with written consent to allow it obtain certain documents. The arbitration hearing was scheduled to commence on January 17, 1994.

8. A copy of the pre-hearing letter was sent to both Mr. Mussa and Mr. Gian. Again, Mr. Mussa's copy was sent to 25 Shuter Street. As a result, he did not receive it. A copy of the Commission's adjournments policy was included with the copy of the pre-hearing letter sent to Mr. Gian.

9. Mr. Kirby attempted to contact Mr. Gian by telephone a number of times in order to discuss the productions, but was unable to reach him until January 10, 1994. Mr. Gian explained that he had not complied with Arbitrator Mackintosh's production order because he had not heard from his client "until recently".

10. On January 14, 1994, Mr. Gian sent a facsimile transmission to Mr. Kirby that is difficult to understand, but apparently states that if it is not possible to reschedule the arbitration hearing, he will ask Mr. Mussa to cancel it. That same day, Mr. Kirby sent a reply to Mr. Gian by facsimile transmission, stating that Allstate did not consent to an adjournment.

11. Mr. Mussa claims that he did not, at any time, discuss cancelling the hearing with Gian. He also claims that he came to the Ontario Insurance Commission on January 17, 1994 to ask for an adjournment to retain new counsel to represent him at the arbitration hearing. I find, however, that he did not make that clear to Senior Arbitrator Rotter³.

12. On January 17, 1994, an interpreter was present to assist Mr. Mussa. According to Senior Arbitrator Rotter, Mr. Gian arrived late for the hearing. He stated that he had not been able to have the consents executed, as ordered by Arbitrator Mackintosh, because of difficulties contacting his client. He explained that Mr. Mussa did not have a telephone, and he did not have the correct address. Further, he had trouble communicating with Mr. Mussa because of Mr. Mussa's difficulties with English.

13. Mr. Gian requested an adjournment of the hearing on behalf of his client. He indicated that the week before, Mr. Mussa advised him that he wished to withdraw his application. However, Mr. Mussa changed his mind on the hearing day, and now wanted an adjournment. Mr. Mussa does not agree with this. He claims that he was seeking an adjournment to retain a different representative.

14. Senior Arbitrator Rotter refused to grant an adjournment. She did not feel that any explanation had been given as to why neither Mr. Gian nor Mr. Mussa were prepared to proceed with the hearing, and was critical of both of them. According to Senior Arbitrator Rotter, Mr. Mussa did not dispute that he had failed to attend at four medical examinations arranged by the Insurer. He also did not explain his failure to attend at the pre-hearing, his inaction after receiving the pre-hearing letter and production order, or his failure to communicate with his legal advisor after receiving correspondence from the Commission.

Mr. Mussa left the hearing after Senior Arbitrator Rotter denied his adjournment request. He now claims that he left due to frustration and a lack of understanding of the proceedings. Mr. Gian remained in the hearing room, but presented no evidence and made no submissions in support of Mr. Mussa's claim for ongoing benefits. Allstate presented evidence and Mr. Kirby made submissions of Allstate's behalf. As is the general practice, Senior Arbitrator Rotter reserved her decision.

15. On or about March 9, 1994, 51 days after the arbitration hearing, Mr. Mussa contacted the offices of Mr. Arthur Yallen, Barrister and Solicitor. Mr. Yallen was unable to determine the status of Mr. Mussa's arbitration. Therefore, he wrote to the Ontario Insurance Commission that same day, asking to be advised of the status of the file. The letter states:

Mr. Mussa has indicated to us that he was formerly represented by Mr. Gian, a paralegal, who he was dissatisfied with. He indicated that Mr. Gian failed to communicate with him and he is therefore not aware of the current status of his application. In the event, that this application has been decided in Mr. Mussa's absence, we would ask that you give consideration to reinstating the application in order to allow Mr. Mussa to make a full representation and for his case to be determine [sic] on the merit [sic].

16. At this time, Senior Arbitrator Rotter had not yet issued her decision.

Mr. Yallen sent a follow-up letter to the Commission on June 6, 1994, again asking for information about the status of Mr. Mussa's file. Ms. Sally Baker, Manager, Arbitration Coordination, responded by letter, dated June 9, 1994. She indicated that an attempt was made to reach Mr. Yallen by telephone on March 24, 1994. She stated that the decision was pending, and that Mr. Mussa would have the option of appealing when the decision was issued.

17. The arbitration decision was issued on November 15, 1994. Senior Arbitrator Rotter ordered as follows:

18. Mr. Mussa is not entitled to weekly benefits from August 19, 1992 onwards.

19. I make no order with respect to reimbursement for missed medical appointments.

20. Mr. Mussa is not entitled to his expenses related to the arbitration.

21. The decision was sent to both Mr. Mussa and Mr. Gian. It was not sent to Mr. Yallen. Because the Commission was still unaware that it had the wrong address for Mr. Mussa, his copy was sent by courier to 25 Shuter Street. The courier advised the Commission that he was unable to find Mr. Mussa at 25 Shuter Street. Mr. Gian was contacted and informed the Commission that the correct address was 275 Shuter. Delivery was then attempted at that address, without success. Mr. Mussa's copy of the arbitration decision was returned to the Commission on November 23, 1994, with a notation of "bad address".

22. Mr. Yallen or someone in his office contacted the Commission by telephone on or about December 27, 1994 to determine the status of the file. He was advised that the decision was issued on November 15, 1994. Mr. Yallen was sent a copy of the decision, which he received on or about December 28, 1994.

23. Mr. Yallen sent a copy of the decision to Mr. Mussa on January 3, 1995. On January 5, 1995, Mr. Mussa instructed Mr. Yallen to appeal the decision to the Director.

24. The Notice of Appeal is dated January 30, 1995. It was served on Allstate's lawyers that same day, and was received by the Commission on February 3, 1995. The Notice of Appeal states that Mr. Mussa never told Mr. Gian that he wanted to withdraw his application. Rather, he was displeased about Mr. Gian's representation, and wanted an adjournment to retain new counsel. It is claimed that Mr. Mussa had difficulty understanding his obligations due to Mr. Gian's failure to communicate with him, and due to cultural and language factors. It is also asserted that Mr. Mussa's claim for ongoing benefits has merit.

Mr. Mussa is asking that the matter be referred to a different arbitrator for a full hearing on the merits.

22. Allstate responded to the Notice of Appeal on February 1, 1994, asking that the appeal be dismissed and that Mr. Mussa be denied his expenses related to the appeal.

Are there reasonable grounds for applying for the extension?

Mr. Mussa's Notice of Appeal was filed late. The arbitration decision is dated November 15, 1994. His Notice of Appeal was received by the Commission on February 3, 1995, 80 days after the decision.

Are there apparent grounds for granting the relief sought?

III. CONCLUSIONS

I accept that the dispute resolution process is meant to be relatively informal, and must recognize that not all applicants will be represented by lawyers.

IV. ORDER

1.

2.

David R. Draper

Director's Delegate

Date

Footnotes

1. 1Section 238(2) of the Insurance Act, R.S.O. 1990, c.l-2.
2. 2Section 238(3) of the Insurance Act, R.S.O. 1990, c.l-8.
3. 3Arbitration decision, dated November 15, 1994.