Guido Iapaolo v. Guardian Insurance Company of Canada and Maplex General Insurance Company, 1997 ONICDRG 10

Neutral Citation: 1997 ONICDRG 10

Appeal P96-00054

OFFICE OF THE DIRECTOR OF ARBITRATIONS

GUIDO IAPAOLO

Appellant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Respondent

and

MAPLEX GENERAL INSURANCE COMPANY

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

Guido Iapaolo, representing himself Cameron C.R. Godden (for Guardian Insurance) Brian Bangay (for Maplex General Insurance)

APPEAL ORDER

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

1. The appeal is dismissed and the arbitration order, dated May 27, 1996, is confirmed.

2. No appeal expenses are payable.

January 16, 1997

David R. Draper Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by Guido Iapaolo from an arbitration decision of Arbitrator Renahan, dated May 27, 1996, concluding that he is not entitled to any additional weekly benefits from either Guardian Insurance Company of Canada ("Guardian") or Maplex General Insurance Company ("Maplex").

II. PRELIMINARY ISSUES

This appeal did not follow the usual course. Within 30 days of the arbitration decision, the Commission received a Notice of Appeal signed by Mr. Iapaolo. Although he was represented by a lawyer at the arbitration hearing, he represented himself on appeal. The Notice of Appeal is quite detailed, listing 20 specific grounds for the appeal. However, Mr. Iapaolo later explained that he filed the appeal on the advice of his former lawyer to preserve his rights, but did not agree with that approach.

Instead of proceeding with his appeal according to the Dispute Resolution Practice Code, Mr. Iapaolo sent numerous letters objecting to the arbitration decision. The difficulty is that his objections bear little relationship to the grounds set out in his Notice of Appeal. As I understand his letters, Mr. Iapaolo claims that the arbitration hearing should not have taken place and, therefore, the decision is a nullity. His position seems to be based on two arguments. First, he contends that the issues were decided in a previous arbitration decision by Arbitrator Alves, dated May 30, 1995, and should not have been reopened in another hearing. Second, he claims that he did not receive proper notice of the hearing before Arbitrator Renahan, or full disclosure of the evidence presented by the insurers.

Mr. Iapaolo argues that because the decision is a nullity, he should not have to continue with the appeal. Instead, the Director of Arbitrations should simply revoke the arbitration order. The Director declined to do so, suggesting that Mr. Iapaolo raise his objections in the appeal.

After reviewing the file, it was unclear to me whether Mr. Iapaolo wanted to proceed with his appeal. Therefore, I wrote to him, explaining the steps he had to take if he wanted to go ahead. Rather than responding directly, Mr. Iapaolo sent me a copy of another letter to the Director in which he again asked her to revoke the arbitration order.

Because Mr. Iapaolo's letter did not provide the information I requested, I set a time limit. He was advised that by December 16, 1996, he had to provide a clear statement in writing that he was proceeding with the appeal, or it would be decided on the record without further submissions from him.

Mr. Iapaolo did not provide the requested information. Instead, he wrote to the Director again, sending me a copy. The letter includes the following:

I have stated several times in my correspondence that an [sic] even though I submitted an appeal application form, it was done on the advise [sic] and false approach of my attorney, while making sure that his name did not appear on the appeal application form, and that is why I requested more than once my $250.00 back on this nonexistent appeal. Upon reflection and in retrospect since the application was submitted I have consistently stated in my correspondence that " AN APPEAL DOES NOT EXIST" on a faulty, illegal invalid arbitration hearing and wrongdoing, as this appeal application form was submitted only as a precautionary measure and completed within the 30 days limitation of the decision.

The Director did not refund Mr. Iapaolo's filing fee, nor would I have done so if the request had come directly to me. Mr. Iapaolo filed an appeal and the insurers responded. The fee for filing an appeal, whether "precautionary" or not, is $250. In my view, he cannot simply abandon his appeal and expect a refund.

Because Mr. Iapaolo did not clearly withdraw his appeal, I dealt with it on the record, including his letters.

III. ANALYSIS

Mr. Iapaolo provided very little information in support of his appeal. As outlined above, he did not file written submissions despite repeated requests. I treated his letters as part of the appeal record, but they are difficult to follow and do not address most of the grounds for appeal set out in his Notice of Appeal. He also did not file a transcript of the arbitration hearing, although his Notice of Appeal said that he would.

A. Multiple Arbitrations

Mr. Iapaolo claims that Arbitrator Alves had already dealt with the issues in her decision of May 30, 1995 and, therefore, Arbitrator Renahan should not have held a second hearing. I find no support for this claim. While the procedural history of this matter is somewhat complicated, Arbitrator Alves only determined which issues could proceed to arbitration. She did not order any benefits to be paid to Mr. Iapaolo. On the contrary, she agreed with Guardian's position, limiting the issues Mr. Iapaolo could take to arbitration, denying him his expenses of the hearing and ordering him to pay Guardian $1,000, the maximum amount she could order.

I will now deal with the facts in greater detail. Mr. Iapaolo is in his early 60's, having worked his entire adult life in the tailoring business. In early 1992, he was making custom suits in the basement of his home. He was then involved in five motor vehicle accidents in just under two years. Arbitrator Renahan described the accidents as follows:

On February 13, 1992 Mr. Iapaolo was driving his vehicle when it was struck a number of times on the passenger side by another vehicle travelling in the same direction. Two months later, on April 18, 1992 he was travelling on the Don Valley Parkway in Toronto when he heard a noise which caused him to swerve to the left and onto a concrete barrier. On July 22, 1993 he was a passenger in a vehicle leaving a parking lot. His vehicle struck another vehicle broadside. On December 3, 1993 Mr. Iapaolo was stopped at a traffic light when his vehicle was struck by another vehicle from the rear. In January 1994 Mr. Iapaolo's vehicle was again struck from the rear while stopped at a traffic light. (p.6)

Mr. Iapaolo was insured by Guardian at the time of his first accident, but had switched to Maplex before the third accident on July 22, 1993. As a result of the first accident, he received accident benefits from Guardian, including weekly income benefits at the minimum rate. He claimed, however, that based on his pre-accident income, he was entitled to the maximum weekly rate of $600.

This dispute went to mediation, with Mr. Iapaolo represented by a lawyer - Mr. Thomas Andrews. When the matter was not resolved, Mr. Andrews filed an application for arbitration on behalf of Mr. Iapaolo, claiming $600 per week up to the present, plus legal and accounting expenses. No arbitration hearing took place because on June 8, 1993, Mr. Andrews advised the Commission that the matter had been settled. Both Arbitrator Alves and Arbitrator Renahan found that as a result of the settlement, Mr. Iapaolo effectively received weekly income benefits from Guardian of $600 per week for the entire period of his entitlement arising out of the first accident.

After making a few additional weekly payments, Guardian stopped paying weekly income benefits, effective July 15, 1993, on the basis that Mr. Iapaolo was no longer substantially unable to perform the essential tasks of his occupation as a tailer. Mr. Iapaolo did not take any formal steps to challenge the termination until nearly six months later.

On January 10, 1994, Mr. Iapaolo's new lawyer, Mr. Jeffrey D. Gray, filed an application for arbitration, claiming additional weekly income benefits for the period up to July 15, 1993, ongoing weekly income benefits after that date, and expenses for medication, travel and legal fees. Guardian responded by arguing that Mr. Iapaolo could not proceed to arbitration on the issues raised in his application. First, it claimed there was a binding settlement with respect to his weekly income benefits up to July 15, 1993. Second, it submitted that the other issues had not been mediated.

A pre-hearing conference was held on February 16, 1994, at which Mr. Gray represented Mr. Iapaolo. During the pre-hearing, the parties reached a settlement. The next day, however, Mr. Iapaolo rescinded the settlement, as he was entitled to do.

Another pre-hearing conference was scheduled for April 7, 1994. Meanwhile, Mr. Iapaolo informed the Commission that Mr. Gray was no longer representing him. As a result, he was unrepresented at the pre-hearing, although accompanied by his wife. According to the pre-hearing letter, the parties agreed to deal with the preliminary issues raised by Guardian before holding a full hearing of Mr. Iapaolo's claim. The pre-hearing arbitrator described the preliminary issues as follows:

1. Was there an effective settlement reached between Solicitor Andrews, on behalf of Mr. Iapaolo and Guardian Insurance, in June 1993?

2. Can the entitlement of Mr. Iapaolo to weekly income benefits and supplementary medical and rehabilitation payments after June 15, 1993, proceed directly to arbitration, or must this issue be mediated first?

The hearing of these preliminary issues took place before Arbitrator Alves. In her "Decision on Preliminary Issues," dated May 30, 1995, she concluded that there was an effective settlement reached in June 1993, and there was no basis for interfering with it. Further, she found that the other issues had not been mediated. The resulting order states:

1. Mr. Iapaolo cannot proceed to arbitration with his claims for:

(a) a deficiency balance owing on weekly income benefits payable before July 15, 1993;

(b) supplementary medical and rehabilitation benefits until this issue has been mediated;

(c) reinstatement of weekly income benefits after July 15, 1993, until this issue has been mediated.

2. Mr. Iapaolo is not entitled to his expenses in respect of the arbitration.

3. The Insurer is entitled to an award of $1,000 to be paid by Mr. Iapaolo in respect of the arbitration.

This order did not help Mr. Iapaolo. It prevented him from claiming additional weekly income benefits for the period up to July 15, 1993. It also established that he could not proceed with his other claims without first going through mediation.

Mr. Iapaolo did not appeal Arbitrator Alves' order. On the contrary, he acted in accordance with it. He retained a new lawyer, Mr. Michael Gillen, and applied for mediation with both Guardian and Maplex, claiming further accident benefits from Guardian arising out of his first accident and from Maplex as a result of the third accident. The dispute was not resolved at mediation, although Guardian agreed to pay half of a list of expenses claimed by Mr. Iapaolo. Maplex refused to pay any part of these expenses and, therefore, this issue was not finally resolved at this stage.

Mr. Gillen then applied for arbitration on behalf of Mr. Iapaolo against both insurers. The two applications were consolidated and heard by Arbitrator Renahan on April 10, 11 and 12, 1996.

I find nothing wrong with this process. Arbitrator Alves did not preclude a "second" hearing, as suggested by Mr. Iapaolo. On the contrary, she clearly contemplated the possibility of another hearing. Her order only prevented Mr. Iapaolo from proceeding to arbitration until his claims for weekly income benefits after July 15, 1993, and treatment-related expenses were mediated. Mr. Iapaolo pursued his claims by doing exactly as Arbitrator Alves suggested. He applied for mediation. The dispute was not resolved and, therefore, he applied for arbitration. The arbitration hearing went ahead before Arbitrator Renahan, but Mr. Iapaolo was unsuccessful.

B. Proper Notice of the Evidence

Mr. Iapaolo claims that Arbitrator Renahan should not have proceeded with the hearing because he did not receive proper notice of hearing and the insurers failed to comply with their obligation to provide disclosure before the hearing.

Mr. Iapaolo was represented at the arbitration hearing by Mr. Gillen, an experienced lawyer quite familiar with the arbitration process. The basic problem with Mr. Iapaolo's position is that there is no indication that he or his counsel argued that the hearing should not go ahead. It is difficult to find that the arbitrator erred in proceeding when no objection was made. In any event, I am not persuaded on the evidence that there was any reason that the hearing should not have proceeded.

Mr. Iapaolo clearly was aware of the hearing. He was present at the pre-hearing when the dates were originally chosen. The dates and the issues to be arbitrated were then confirmed in a letter sent to both Mr. Iapaolo and his lawyer. A Notice of Hearing was also sent to both Mr. Iapaolo and Mr. Gillen. Even if Mr. Iapaolo did not receive his copy, there is no suggestion that his lawyer did not. Finally, he was at the hearing and there is no evidence before me that he asked the arbitrator to delay the hearing due to any lack of notice or confusion about the purpose of the proceedings.

As I understand his letters, Mr. Iapaolo also contends that the insurers did not provide their expert reports and witness statements before the hearing, as required by the pre-hearing arbitrator. While Mr. Iapaolo may not have received these documents personally, it is more likely they were sent to his lawyer. The only reference to a lack of disclosure in the Notice of Appeal, drafted by Mr. Gillen, is as follows:

4. The Arbitrator erred in admitting evidence of Dr. Langer, in that counsel for Guardian Insurance had not complied with the provisions of Rule 36.4 and Rule 38 of the Dispute Resolution Practice Code.

I am not prepared to find, therefore, that there was any issue before the arbitrator about a lack of disclosure except for the evidence of Dr. Langer. In its Response to Appeal, Maplex made the following submissions:

5. With regard to paragraph 4 of the Appellant's Statement, it is submitted that there was a substantial compliance with Rule 38.1 and 38.2 of the Dispute Resolution Practice Code. The pith and substance of Dr. Langer's testimony was provided by a service of his medical report. The decision to allow Dr. Langer to testify and to accept his C.V. was properly within the Arbitrator's discretion and within the ambit of Rules 36.1 and 36.4. It is submitted that the Appellant did not seek corollary relief in the form of an adjournment or other relief at the time that it was decided to allow Dr. Langer to testify.

Although the Dispute Resolution Practice Code establishes rules, arbitrators must exercise their judgment about the introduction of evidence, including expert evidence. I am unable to conclude on the evidence before me that the arbitrator failed to take the appropriate considerations into account in allowing Dr. Langer to testify.

III. MEDICAL AND REHABILITATION EXPENSES

There is some suggestion in Mr. Iapaolo's letters that he feels a settlement was reached at the last mediation. I assume this relates to his claim for medical and rehabilitation expenses. The Report of Mediator, dated September 14, 1995, records a limited settlement. Guardian agreed to pay half of a list of medical and rehabilitation expenses claimed by Mr. Iapaolo on a "without prejudice" basis. Maplex did not agree to pay the other half.

At the pre-hearing held on January 11, 1996, Mr. Iapaolo's claim for medical and rehabilitation expenses remained in issue. The pre-hearing arbitrator, Arbitrator Jones, identified the following as one of the issues to be determined by the arbitrator:

Section 6 expenses remain an issue for the purpose of the arbitration, subject to the Insurers reaching an agreement on the payment of same.

The arbitration decision does not deal with medical and rehabilitation expenses. Based on the written submissions filed with the arbitrator, however, I find that this issue was resolved before the end of the hearing. Mr. Gillen states that "the issue of the medical and rehabilitation expenses was resolved on the last day of the Hearing in the Applicant's favour." This is confirmed in the written submissions filed by Maplex.

IV. OTHER GROUNDS RAISED IN THE NOTICE OF APPEAL

Other than his claim that he did not receive adequate pre-hearing disclosure, Mr. Iapaolo did not pursue any of the grounds raised in his Notice of Appeal. As a result, they remain bare assertions that the arbitrator erred in a number of ways. These assertions, in my view, are not sufficient to establish any error or reason to interfere with the decision.

V. EXPENSES

Mr. Iapaolo's Notice of Appeal includes a claim for appeal expenses. Given his failure to pursue his appeal, however, I conclude that no appeal expenses are payable.

January 16, 1997

David R. Draper Director's Delegate

Date