Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 18 Appeal P-003598

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MOHAMED MUSSA Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA Respondent

Before: David R. Draper

Counsel: Arthur I. Yallen (for Mr. Mussa) Ian D. Kirby (for Allstate)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed, and the arbitration order, dated November 15, 1994, is confirmed.
Mr. Mussa is not entitled to his appeal expenses.

February 1, 1996

David R. Draper Director's Delegate

Date

REASONS FOR DECISION

I. THE ISSUES

An arbitration hearing was held on January 17, 1994, to determine Mr. Mussa's entitlement to weekly income benefits. Mr. Mussa was represented by an agent, David Gian. After the arbitrator 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 the arbitration decision, the Ontario Insurance Commission ("the Commission") was contacted by Arthur Yallen, a lawyer representing Mr. Mussa. He asked for an opportunity to present Mr. Mussa's case, but was told that the decision was pending, and that Mr. Mussa could appeal if the result was unfavourable.

The decision was released on November 15, 1994, dismissing Mr. Mussa's claim for additional weekly income benefits. Mr. Mussa appealed, asking for a full hearing before a different arbitrator. His Notice of Appeal was received by the Commission on February 3, 1995, 80 days after the date of the arbitration decision. In its response, Allstate Insurance Company of Canada ("Allstate") asked that the appeal be dismissed because it was not filed within the 30-day appeal period. Alternatively, Allstate submitted that the appeal was without merit.

II. THE FACTS

Based on the record of the arbitration hearing, the arbitration decision, and the material filed in the appeal, I find the following:

Mr. Mussa was involved in an automobile accident on February 18, 1992.
Allstate paid Mr. Mussa weekly income benefits under section 12 of the Schedule¹ from February 25, 1992 to August 18, 1992.
Mr. Mussa felt that he continued to be entitled to weekly income benefit from August 18, 1992, onwards. Therefore, he applied for mediation.
The dispute was not resolved as a result of the mediation, although Allstate agreed to contact an orthopaedic surgeon that Mr. Mussa claimed to be seeing.
The Report of Mediator, dated November 20, 1992, indicates that Mr. Mussa was represented by a lawyer during the mediation. It also includes his correct address: 275 Shuter Street, Apt. 1113, Toronto, Ontario, M5A 1W4. During the entire course of these proceedings, Mr. Mussa had no telephone, and did not provide a telephone number where he could be reached, other than through his representative.
At some point following the mediation, Mr. Mussa retained Mr. Gian as his legal agent. Mr. Gian submitted an application for arbitration on behalf of Mr. Mussa, dated July 25, 1993, eight months after the Report of Mediator was issued. The address provided for Mr. Mussa on the application is incorrect: "25, Shutter St., #1113, Toronto Ont," with no postal code.
Allstate filed a Response by Insurer, dated August 17, 1993. It claimed that Mr. Mussa was not entitled to any additional weekly income benefits, and that he owed Allstate $1,153 as a result of missing four medical appointments.
As is the normal practice, a pre-hearing was scheduled. Notice that the pre-hearing would take place on October 5, 1993 was sent by regular mail to Allstate, its lawyer, Mr. Gian, and Mr. Mussa. It was sent to Mr. Mussa at 25 Shuter Street, Apt. 1113, Toronto, Ontario, M5A 1W4. It appears, therefore, that some effort was made to correct the address provided in his application, although the street number was still incorrect.
On October 5, 1993, Ian Kirby attended the pre-hearing as counsel for Allstate. Neither Mr. Mussa nor Mr. Gian was there. After waiting for 30 minutes, the pre-hearing arbitrator proceeded with the pre-hearing.
In a letter, dated October 7, 1993, the pre-hearing arbitrator 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 Applicant's failure to attend medical appointments arranged by the Insurer for the medical examination of the Applicant.

The Insurer seeks a set off of the sum of $1,153.00 against any expenses claimed by the Applicant, in connection with this application.

The pre-hearing arbitrator also dealt with the production of documents. She ordered that by October 22, 1993, Mr. Mussa was required to provide Allstate with written consent to allow it to obtain certain documents. The arbitration hearing was scheduled for three days, starting on January 17, 1994.

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, Apt. 1113, Toronto, Ontario, M5A 1W4. The letter sets out the hearing dates, and makes specific reference to the possible consequences of failing to comply with the production order. The copy of the letter sent to Mr. Gian also included a copy of the Commission's strict adjournments policy.
In addition to the pre-hearing letter, Mr. Mussa and Mr. Gian were sent a formal Notice of Hearing. This notice was also sent to Mr. Mussa at 25 Shuter Street, Apt. 1113, Toronto, Ontario, M5A 1W4.
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, one week before the hearing was scheduled to start. Mr. Gian explained that Mr. Mussa had not complied with the production order because they had not been in contact until recently. The executed consents were then provided to Mr. Kirby, but he was unable to obtain the documents in time for the hearing.
On Friday, January 14, 1994, Mr. Gian sent a facsimile transmission to Mr. Kirby that is difficult to understand, but appears to state that if it is not possible to reschedule the arbitration hearing, he will ask Mr. Mussa to "cancel" it. That same day, Mr. Kirby advised Mr. Gian that Allstate did not consent to an adjournment.
On January 17, 1994, an interpreter was present at the hearing to assist Mr. Mussa. Mr. Gian arrived late, and asked for an adjournment. He told the arbitrator that Mr. Mussa had not complied with the production order due to communication problems. Mr. Gian explained that Mr. Mussa did not have a telephone, and he did not have Mr. Mussa's correct address. Further, he had trouble communicating with Mr. Mussa because of Mr. Mussa's difficulties with the English language.
The arbitrator refused the adjournment request for the following reasons:

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 for the appointment of an arbitrator. However, Mr. Mussa had changed his mind on the hearing day, and now wished an adjournment.

I declined to adjourn the hearing. No reasonable grounds for an adjournment were presented. I heard no explanation why neither Mr. Gian nor his client were prepared to proceed with the hearing. It was not disputed that both had received the Notice of Hearing as well as the pre-hearing letter and production order, and were aware that the hearing was scheduled to proceed.

Neither Mr. Gian nor his client gave any reasonable explanation for their failure to attend at the pre-hearing discussion. Mr. Gian did not satisfy me that he made any reasonable efforts to contact his client, after the pre-hearing, in order to secure his compliance with the production order in a timely fashion. He gave no explanation for his repeated failure to communicate with counsel for the Insurer, to discuss with him the status of this case.

Mr. Gian's irresponsible conduct in this case is very similar to his conduct in the case of Dung Ngoc Nguyen v Allstate (December 30, 1993, OIC File No. A-004485). In that case, in similar circumstances, Senior Arbitrator Naylor declined to grant an adjournment, and proceeded with the hearing that had been scheduled.

In this case, moreover, Mr. Mussa was present at the hearing and failed to give any reasonable explanation for his own lack of co-operation and irresponsible conduct. He did not dispute that he had failed to attend at four medical examinations arranged by the Insurer. He did not explain his failure to attend at the pre-hearing, nor his inaction after receiving the pre-hearing letter and production order. He did not explain his own failure to communicate with his legal advisor after receiving correspondence from the Commission.

Mr. Mussa left the hearing after the adjournment was denied. Allstate filed six exhibits in support of its position that Mr. Mussa was not entitled to any further weekly income benefits. Mr. Gian remained in the hearing room, but presented no evidence and made no submissions on behalf of Mr. Mussa. The arbitrator reserved her decision.
On or about March 9, 1994, 51 days after the arbitration hearing, Mr. Mussa contacted the offices of Mr. Yallen. Mr. Yallen was unable to determine the status of Mr. Mussa's arbitration. Therefore, he wrote to the 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].

At that time, the arbitrator 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. The Manager, Arbitration Coordination, responded by letter, dated June 9, 1994, indicating 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.
The arbitration decision was issued on November 15, 1994, ordering as follows:
Mr. Mussa is not entitled to weekly benefits from August 19, 1992 onwards.
I make no order with respect to reimbursement for missed medical appointments.
Mr. Mussa is not entitled to his expenses related to the arbitration.
The decision was sent by courier 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 street address for Mr. Mussa, the courier was instructed to deliver his copy to 25 Shuter Street.
The courier advised the Commission that the street address was wrong. By contacting Mr. Gian, the Commission finally learned that Mr. Mussa's correct address was 275 Shuter Street.
Delivery was then attempted at 275 Shuter Street, without success. Mr. Mussa's copy of the arbitration decision was returned to the Commission on November 23, 1994, with a notation, "bad address." The Commission contacted Mr. Gian once again, but was advised that he no longer acted for Mr. Mussa, and did not know his new address.
Mr. Yallen's office contacted the Commission by telephone on or about December 27, 1994 to determine the status of the file. They were 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.
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 Notice of Appeal is dated January 30, 1995. It was served on Allstate's lawyers the same day, and received by the Commission on February 3, 1995. In the Notice of Appeal, Mr. Mussa states that he 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. Mr. Mussa claims that he had difficulty understanding his obligations due to Mr. Gian's failure to communicate with him, and due to cultural and language factors. He also asserts that his claim for ongoing benefits has merit, and asks that the matter be referred to a different arbitrator for a full hearing on the merits.
Allstate responded on February 1, 1994, asking that the appeal be dismissed and that Mr. Mussa be denied his appeal expenses.

III. PRELIMINARY ISSUE - TIMELINESS OF THE APPEAL

An arbitrator's decision may be appealed by delivering a Notice of Appeal to the Commission within 30 days after the date of the decision². Mr. Mussa's Notice of Appeal was not received until February 3, 1995, 80 days after the arbitration decision.

Although the legislation establishes a 30-day time limit, it is not absolute. The time period may be extended where:

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

(b) there are apparent grounds for granting the relief sought.³

This is a discretionary decision that depends on the particular facts of each case. By letter, dated August 3, 1995, I advised the parties that I was persuaded that the time limit should be extended to allow Mr. Mussa to proceed with his appeal.

In reaching this decision, I concluded that Mr. Mussa had provided reasonable grounds for the extension. He took steps to question the process even before the arbitration decision was released, but was advised that he would have to wait until the decision was released. His ability to respond to the decision was compromised, however, by the fact that neither he nor Mr. Yallen received a copy when it was released. Mr. Gian was sent a copy of the decision, but there is no indication that he notified his former client. When Mr. Yallen contacted the Commission and learned that the decision had been released, he proceeded with the appeal in a reasonably timely manner. Finally, there was no indication that Allstate was seriously prejudiced by the delay.

With respect to the second criteria, I felt that the appeal material raised a significant concern that Mr. Gian's conduct, together with Mr. Mussa's limited ability to protect his own interests due to illiteracy and language barriers, might have resulted in an injustice.

IV. THE APPEAL - SHOULD A NEW HEARING BE ORDERED?

Mr. Mussa submits that the arbitrator erred in refusing to grant him a short adjournment to retain a different representative. He claims that he was not in a position to proceed because he had not received any of the letters from the Commission, and his representative failed to keep him informed. Mr. Mussa maintains that his representative was not only negligent, but actively misled the arbitrator about his instructions.

My difficulty with Mr. Mussa's position is that it is inconsistent with the findings made by the arbitrator. The arbitration decision strongly suggests that the adjournment was requested to deal with the lack of productions, not to arrange for other counsel. There is no indication that Mr. Mussa expressed dissatisfaction with Mr. Gian, or told the arbitrator that he wanted to retain someone else. Given the arbitrator's concerns about Mr. Gian's previous conduct before the Commission, it is particularly striking that instead of expressing concern that Mr. Mussa's position may have been compromised by the "irresponsible conduct" of his representative, she found that Mr. Mussa had also acted irresponsibly.

There is also no suggestion in the decision that Mr. Mussa had not received copies of the Commission's letters. The arbitrator specifically states that:

He [Mr. Mussa] did not explain his failure to attend at the pre-hearing, nor his inaction after receiving the pre-hearing letter and production order. He did not explain his own failure to communicate with his legal advisor after receiving correspondence from the Commission. [Emphasis added]

It was suggested that Mr. Mussa was unable to convey his position to the arbitrator because of a language barrier, and his confusion and frustration with the process. Although there was an interpreter present, it is possible that the arbitrator was not given the full picture. However, the only evidence before me that Mr. Mussa did not receive the correspondence is the fact that the wrong street address was used. It was submitted that the Commission must have been aware of this problem because the letters must have been returned. There is no indication in the Commission file, however, that any of the letters sent to Mr. Mussa by regular mail were returned.

Mr. Kirby provided an explanation that I find persuasive. While there is no 25 Shuter Street, 275 Shuter Street is an apartment building with a unique postal code - M5A 1W4, the one used on all the Commission's correspondence to Mr. Mussa. Since mail is delivered primarily by postal code, there is no reason to conclude that it did not reach him. The fact that the street address was wrong was only discovered when the courier, who delivers by street address, was unable to find 25 Shuter Street.

For these reasons, I am not convinced that Mr. Mussa has provided an accurate history of this matter. My view is reinforced by the inconsistency in his written submissions. Paragraph eight states that Mr. Gian advised Mr. Mussa shortly before the arbitration that the hearing was scheduled to proceed on January 17, 1994, and that Mr. Mussa attended to request an adjournment to retain new counsel. In paragraph 11, however, it states that Mr. Mussa did not believe that January 17, 1994 was a hearing date, but thought that it was only a pre-hearing.

Mr. Mussa also objects to the arbitrator's reference to Mr. Gian's conduct in another arbitration case. He submits that it indicates bias, or a fettering of her discretion. I accept that an adjournment should not be refused in order to punish the representative. In my view, however, that is not what happened in this case. The arbitrator was equally critical of Mr. Mussa's conduct, and refused the adjournment because he provided no valid reason for being unprepared to proceed with the hearing.

Finally, it is submitted that the matter should be re-opened because Mr. Mussa's claim has merit. After reviewing the medical documents, I am not convinced the result in this case in unjust. Shortly after the accident, Mr. Mussa saw his family doctor who described him as "in no acute distress." Four years later, he claims that he is still unable to return to work. The various reports express frustration with his lack of effort, and his exaggerated view of his disability. Some of the medical practitioners conclude that Mr. Mussa is being deliberately evasive or uncooperative. Others are more charitable, but all seem to agree that he is physically capable of doing far more than he has been prepared to attempt.

V. EXPENSES

Mr. Kirby submitted on behalf of Allstate that Mr. Mussa should be denied his expenses, even if his appeal was successful. He argued that the need for the appeal arose out of Mr. Mussa's irresponsible conduct and, therefore, Allstate should not have to bear his expenses.

Mr. Yallen agreed that expenses should not depend on the result, but submitted that they should be awarded regardless of the outcome. He submitted that the appeal was reasonable and that insured persons will be unable to pursue their rights unless counsel have some reasonable assurance that expenses will be awarded.

Mr. Yallen proceeded with this appeal based on the information provided by Mr. Mussa, and represented him vigorously and effectively. However, I have accepted the arbitrator's view that Mr. Mussa acted irresponsibly with respect to the arbitration. The legislation makes it clear that the award of expenses is to the insured person, not to counsel as direct compensation for his or her work. In the circumstances of this case, I conclude that Mr. Mussa should not receive his appeal expenses.