Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 168

Appeal P-002188

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SAID MOHAMED HASSAN

Appellant

and

KINGSWAY GENERAL INSURANCE COMPANY

Respondent

Before:

Elisabeth Sachs

Counsel:

J. Steven Iseman (for Said Mohamed Hassan)

Harry P. Brown (for Kingsway General Insurance Company)

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 November 10, 1993 is confirmed.

2. Mr. Hassan is not entitled to his appeal expenses.

September 12, 1997

Elisabeth Sachs

Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

Said Mohamed Hassan appeals from an arbitrator's decision dated November 10, 1993 denying him continued weekly income benefits after July 26, 1992, pursuant to section 12 of O. Reg 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the Schedule) and his expenses. The arbitrator also ordered Mr. Hassan to repay certain amounts paid after June 15, 1992 by Kingsway General Insurance Company ("Kingsway"). Mr. Hassan alleges the arbitrator erred in not permitting two medical reports to be filed during the hearing, and in her assessment of other medical reports he produced.

In addition, or alternatively, he wants a revocation of the arbitration order on the basis that the arbitrator "consistently demonstrated bias" against him and asks that a new hearing be held before another arbitrator, or the Director, in accordance with subsection 282(12) of the Insurance Act, R.S.O. 1990, c. I-8, as amended (the Act). At that hearing, Mr. Hassan proposes to call a witness or witnesses on both the substantive medical issues and the bias issue, although the latter would be moot; a new hearing will be ordered only if the allegations of bias, or a reasonable apprehension of bias are made out. I advised that in the event Mr. Hassan succeeded on that issue, I would appoint another arbitrator to adjudicate the remaining issues. If he did not succeed, I would determine them.

In the appeal, Mr. Hassan seeks leave to introduce new medical reports and asks a special award be made under subsection 282(10) of the Act.

II. BACKGROUND

Mr. Hassan was injured in a motor vehicle accident on February 18, 1992. He received weekly income, medical and rehabilitation benefits from Kingsway until July 25, 1992 when payments were terminated.

An arbitration hearing took place over 11 days from January to June, 1993. Mr. Hassan and six witnesses testified. No medical witness was called. Mr. Hassan had counsel on the first two days of the hearing and represented himself thereafter. Testimony given on January 14 and some on March 24, 1993 only was transcribed and available. The arbitration exhibits are before me as is a letter, dated May 13, 1993 written by Mr. Hassan to me during the proceedings regarding the bias allegations. Both parties made oral submissions.

III. ISSUES AND ANALYSIS

1. Allegation of Bias

Bias against a party on an adjudicator's part, real or reasonably apprehended, is a serious allegation. Mr. Hassan says the arbitrator was overtly biased against him. The first instance he cites came during the early portion of the hearing when the arbitrator refused Mr. Hassan's motion to "strike" the evidence taken on the first two days of the hearing and begin again. He wanted to do so as his counsel had withdrawn from the hearing. Kingsway objected to starting over, but did agree to the arbitrator's suggestion that Mr. Hassan be permitted to re-open his evidence, recall witnesses and present such other evidence or documents he believed had been omitted. At page 25 of the decision, the arbitrator notes that Mr. Hassan also agreed, at that point, to continue accordingly.

The following day Mr. Hassan renewed his request, addressing it himself in a telephone call to the Registrar of the Dispute Resolution Group. He also asked a new arbitrator be appointed. On the next hearing day, the arbitrator heard Mr. Hassan's motion for a new hearing before another arbitrator. The motion was based on his view that the prior proceedings were unfair due to the conduct of his now former lawyer. He voiced his concern that the sudden withdrawal of counsel with the resulting inconvenience to witnesses and the Commission would prejudice his case. He claimed he misunderstood the earlier agreement to re-open his case. The motion was dismissed.

What next occurred is comprehensively recorded by the arbitrator at pages 25 to 27 of the decision. Mr. Hassan's complaint was not just that his counsel had omitted vital evidence (the subject of the re-opening motion) and then withdrawn, but that his welfare caseworker was permitted to testify over his objections; the proceedings were extended into the evening hours the same day; that on the following day, the arbitrator allegedly had refused to permit him to call witnesses; and earlier in the hearing, refused to accept one of his doctor's reports into evidence while allowing Kingsway to file its reports without permitting challenges to their admissibility. The main allegations set out in Mr. Hassan's May 13, 1993 letter were responded to by the Registrar who indicated they would be dealt with once the arbitrator's decision was released. The decision of November 10, 1993, extensively reviews Mr. Hassan's objections to the process and the hearing arbitrator.

Mr. Hassan then filed an initial Notice of Appeal. After retaining counsel, two amended Notices containing further allegations respecting the conduct of Kingsway and its counsel at the arbitration hearing were filed. These latter allegations were finally withdrawn when oral submissions were heard.

Mr. Hassan submits that notwithstanding the arbitrator's own conclusions that she could continue as it was her assessment the arbitration proceedings demonstrated no perceived or actual bias against him, the Act permits me to review the matter anew. I agree that is so, but whether a separate hearing be held to call evidence on it is another matter. I received no evidence, in affidavit or other form, relating to the bias allegations other than what is contained in the decision and the May 13 letter. Only during oral argument did a new allegation emerge about an alleged comment made by the arbitrator to both parties during a brief adjournment on the evening of March 24, 1993 suggesting they ought to seriously discuss settlement. According to Mr. Hassan, she said the decision would not be in his favour. Counsel for Mr. Hassan on appeal remarked while the "comment may have been innocuous, the effect was like a pre-hearing", and as Mr. Hassan was unrepresented during this time, it prejudiced further settlement discussions which might take place. He suggested its effect on Mr. Hassan was to leave him with the impression that his case had been pre-judged. Mr. Hassan proposed to call the interpreter and a friend who were present to substantiate the conversation. Counsel for Kingsway strenuously objected, and offered to provide affidavit or oral evidence of its counsel at the hearing that no conversation among the parties and the arbitrator hindered discussions, nor was anything said which could be reasonably interpreted to show her mind was made up as to the outcome of the hearing.

The objection to the arbitrator’s interaction with the parties was not made at the time it allegedly occurred. It was not raised in Mr. Hassan’s May 13 letter detailing a number of reasons why this arbitrator should not continue with the hearing. Even on a generous reading of the letter, I find nothing cogent relating to this conversation or its alleged effect on a potential settlement or the subsequent assessment of evidence. His complaint is the arbitrator refused his "reasonable request to adjourn, after 4 marathon sessions, the hearing indefinitely; bending her final decision". I cannot accept that if the conversation was pivotal to Mr. Hassan's view of how the case was proceeding, he would not have mentioned it to either the arbitrator or the Registrar, explicitly in his letter or in written submissions. This is not sufficient reason to order a new hearing.

In the case Soltan Davoudi Kahkesh and Lloyd's Non Marine Underwriters, (August 19, 1992, OIC P-000378) the allegations of bias were not originally made during the hearing or to the arbitrator but surfaced on appeal. After commenting on the observations of parties and the adjudicator during the hearing about the nature of the fairness and even-handedness of the process itself, and the adjudicator's conduct, I wrote at pg. 6 - 7:

Having the benefit of hindsight, the Director must determine whether the indicia of bias are present. A representative list includes: undue intervention by the arbitrator in the process and in examinations of witnesses; hostility toward a party, counsel, representatives or witnesses; financial interest in the outcome of the hearing; any relationships between a party and the arbitrator, personal or otherwise; prior involvement in the merits of the case; and comments made publicly reflecting attitudes toward persons or institutions involved in the hearing. These indicia need not all be present, nor does the existence of one or more amount to bias, for example where a party is unrepresented or unable to present the case reasonably, or the calling of additional expert evidence is suggested. (Emphasis added)

In light of Mr. Hassan's unrepresented status for most of the hearing, I appreciate there may have been procedural and other rulings made or submissions asked for which were not fully understood by him at the time. I must decide however, when all considerations are taken into account, whether the arbitrator acted in a neutral manner, maintained procedural fairness, and conducted herself such that there is no reasonable apprehension of bias. I must determine if the issues appear to have been prejudged or Mr. Hassan was denied a fair hearing.

Notwithstanding that the arbitrator was aware of and dealt with Mr. Hassan's allegations, the proceedings were recorded and the partial transcript available has provided some of the answers. I now turn to the main allegations, in chronological order.

1. January 14, 1993: Arbitrator refused Applicant's request to file medical report of Dr. Blazkova.

Arbitrator permitted Insurer to file medical reports without permitting the Applicant to question and dispute their admissibility.

Kingsway did not object to the filing of a medical report on the basis of short notice, but thought Dr. Blazkova would testify and wanted to cross-examine her. The report (dated November 23, 1992, referred to at pg. 15 of the decision as November 11) was, contrary to Mr. Hassan's allegation, filed as Exhibit 40. No medical reports were filed by Kingsway on that day. Medical briefs were ultimately filed, later in the proceedings, as Exhibits 25 and 49. I see nothing in the arbitral record or the decision to indicate Mr. Hassan did not have the opportunity to challenge the medical evidence so produced. All of it had already been provided before the hearing to his counsel.

2. March 22, 1993: Arbitrator refused the Applicant's request for a new hearing under a new arbitrator and failed to allow a recess after this refusal.

Arbitrator admitted testimony from the Applicant's welfare caseworker over the Applicant's objections.

Arbitrator sadistically extended the arbitration beyond its usual time, despite the Applicant's ill health.

The arbitrator stated she denied Mr. Hassan’s motion for a new hearing before another arbitrator on the basis that:

...any prejudice perceived by (him) during the first two days of hearing, as a result of alleged omissions by his former counsel, could be remedied by permitting him to re-open his case from the beginning. (Decision, pg. 25)

She specifically reassured Mr. Hassan that his former counsel’s withdrawal on the third hearing day (February 25) did not affect her view of the case. This was Mr. Hassan's third motion for a new hearing. The first was made on March 18 during a telephone call to the parties by the Commission to ensure they were ready to proceed on March 22. Mr. Hassan wanted to start the case afresh by striking all the evidence given to that date. The motion was disposed of on consent. The second motion came on March 19 in a call to the Registrar, with the added feature of wanting a new arbitrator, on the grounds that Mr. Hassan said he misunderstood what was agreed to earlier by him. The Registrar referred it to the arbitrator, and the hearing reconvened. The motion was denied.

The proceedings on March 22 were not transcribed. No evidence was offered on the issue of whether any prejudice resulted when a further adjournment was denied after the motion was dismissed. Mr. Hassan knew for weeks before the case would proceed in any event, as he was granted an initial adjournment to instruct new counsel. No counsel was retained, although the hearing did not finally conclude until June 21, 1993. I see no merit in this aspect of the allegations.

Mr. Hassan’s welfare caseworker was permitted to testify. The arbitrator noted the evidence was relevant to both the substantive income issue and Mr. Hassan's credibility. Before the hearing, Kingsway's counsel advised Mr. Hassan's counsel in writing that he intended to call evidence in connection with Mr. Hassan's receipt of social assistance while working as a taxi driver and receiving weekly income benefits (Exhibits 42 and 43). It could come as no surprise to Mr. Hassan that evidence relevant to the issues in dispute was presented by Kingsway. Mr. Hassan responded by contending the documents and notes maintained by the social services agency were false, the caseworker lied under oath and his belief that communications with her were confidential. The arbitrator preferred the caseworker's evidence as that of a disinterested third party over Mr. Hassan's. This was her right to do as an adjudicator. I see no connection to a perception of bias in this.

Mr. Hassan maintains the arbitrator was "sadistic" in extending the hearing times beyond the usual end time of 5 o'clock in the afternoon. The record shows the hearing continued until 7:45 p.m. at Mr. Hassan's specific request. The transcript of March 24 has some discussion on how to best accommodate extending the hearing time again that day, as previously, for Mr. Hassan's convenience. His witnesses had not arrived when scheduled. The record also shows the arbitrator agreed to earlier requests for breaks during the hearing when asked for by Mr. Hassan. The allegation is completely unfounded.

3. March 24, 1993: Arbitrator refused the Applicant's request to adjourn the hearing indefinitely, following the parties' failure to settle the case.

Arbitrator refused to allow the Applicant's witnesses to testify.

I have no evidence, in the transcript or otherwise, of an adjournment request following the parties unsuccessful settlement discussions at the end of the day's proceedings. If Mr. Hassan wanted the case to conclude in a manner other than by resolution or decision, he could have asked to withdraw his application. Indeed, the issue for both parties was not adjournment, but when to reconvene the hearing. The Commission's record has a continuation shown for April 12, which, as it turned out, was a statutory holiday. By March 31, the parties had agreed to a new date of May 17, 1993. Four days before this resumption Mr. Hassan raised the above allegations.

The final allegation, for which no particulars were provided, is that the arbitrator refused to allow Mr. Hassan to either call witnesses or let them testify. The available transcript tells quite another story. Mr. Hassan’s witnesses seemed to either not arrive or arrive after business hours. Mr. Hassan was given a recess to try and locate his witness, a Mr. Hersi, for March 24. He did not attend, and the hearing was concluded for that day.

Having carefully considered the allegations and submissions on them, and reviewed the exhibits and record as well as the partial transcripts and the decision itself, I conclude the arbitration proceedings were conducted in a fair and balanced manner. Mr. Hassan was permitted to re-open his case, recall witnesses, given adjournments, accommodated when his witnesses did not arrive, and afforded greater latitude in filing and presenting evidence because of his unrepresented status. He received comprehensive instructions on how the case was to proceed, what he needed to do and why beyond what was needed to provide procedural fairness. Mr. Hassan may not like that the arbitrator did not find his evidence credible, and refused to order Kingsway to pay additional benefits. That result does not, however, indicate there was bias, or even that bias on the part of the arbitrator could be reasonably apprehended. No new hearing will be ordered. The remaining issues will proceed as an appeal of the arbitrator's order.

2. Evidence Excluded at Arbitration and Evidence on Appeal

Mr. Hassan submits that the arbitrator refused to let him file "two pertinent and definitive psychiatric reports": those of Dr. H. G. Arndt dated May 6, 993 and Dr. J. R. Johnson dated April 21, 1993. Both were created after the hearing started. The latter is a 5 line consultation note addressed to the referring physician, with a brief summary of the examination attached. It states:

Your patient, Said Hassan has been assessed today and has been diagnosed as suffering from a unipolar affective disorder.

He has been started on Amitriptyline 75 mgs hs.

Follow up has been arranged for one month.

Assessment details are overpage.

The February 18, 1992 accident is mentioned in passing, under the heading Family and Social History, in the summary: "(Mr. Hassan) was working driving cab when he had an accident from which he is still recovering".

Dr. Arndt’s report did not note a unipolar affective disorder, but referred to post-traumatic stress disorder and an inability to drive.

Mr. Hassan says these reports should have been received in evidence to support his contention that he had psychological or mental injuries arising from the accident and if there were any doubts in the arbitrator’s mind, she should have referred the question to the Medical and Rehabilitation Advisory Panel. Even if the arbitrator was correct in excluding them at the hearing, as the notice requirements of the Dispute Resolution Practice Code ( the "Code") were not met and Kingsway refused to consent to their admission (as it had consented to others), he submits the Director should now receive them as fresh evidence on appeal.

There is a background to the exclusion of these reports. Two months before submitting these reports, Mr. Hassan had tendered a one page report detailing his psychological problems prepared by Dr. J. Fernando, dated November 2, 1992. It was not produced to Kingsway earlier, although the arbitration started in January, 1993. The arbitrator records at page 17 of the decision that over the strong objection of Kingsway and having regard to Mr. Hassan's lack of representation, she permitted the report to be filed (Exhibit 39). As the transcript of March 24, 1993 shows, the arbitrator explained to Mr. Hassan in respect of this and other evidence, the need for prior disclosure to Kingsway and why fairness dictated the insurer had to be given an opportunity to respond to both medical and other documents (GST filings were noted). Mr. Hassan's responses make it clear he understood exactly what had to be done if there was any other evidence he wanted to bring forward. He was aware of the then section 18.3 of the Code setting out a seven day notice period for experts reports. Notwithstanding, on May 17, he attempted to file the two reports without having produced them before that day. It appears the arbitrator was prepared to allow an adjournment to permit Kingsway to evaluate the reports and respond, but Mr. Hassan was, as she stated "anxious to proceed". Accordingly, she made her ruling and the reports were excluded.

The arbitration was in its sixth day (the original time estimate was two days) and Mr. Hassan had been previously advised and cautioned about the need to produce documents in a timely manner. The reports raised a different aspect of Mr. Hassan's alleged disabilities arising from the accident. Where before the focus had been on soft tissue injuries, it shifted to psychological areas in mid to late summer of 1992. At a minimum, although the Commission's processes are streamlined to provide as much as possible an expedited resolution of disputes, the procedures used must be fair to all parties. Here, the arbitrator took care to explain both the rules and the philosophy behind them; a pre-hearing letter had outlined well before the hearing the requirements for production of experts' reports. Mr. Hassan, in full knowledge of what was needed, attempted to file the reports without prior service on Kingsway, and then wanted to proceed quickly without Kingsway responding. I do not find the exclusion of the reports to be in error.

As there is no transcript of the actual exchange at the hearing when the reports came forward, I must rely on the record and what bearing, if any, the reports might have had on the ultimate assessment of the evidence which was admitted. That may lead to a consideration of whether the reports should now be admitted on appeal. If the exclusion of the reports at the arbitration hearing is proper, on what basis should they now be accepted into evidence?

The criteria applied on appeal normally relate to evidence unavailable or unobtainable at the hearing, in respect of a key issue in dispute, and which would have materially affected the result. From Mr. Hassan's perspective, the reports deal with a vital area, and he submits, would have affected the result. This is a circuitous argument, however. If the evidence was properly excluded at the hearing, it is not new evidence now. Further, it is not my function to retry the issues. Given the other evidence available, did the exclusion ruling amount to an injustice, requiring it be overturned and the issue which the reports address be retried? I do not believe it does.

There was a substantial amount of medical evidence, and some psychological evidence before the arbitrator. Mr. Hassan says the latter (principally Dr. Fernando's report, and to some extent, Dr. R. Lexier's prepared for Kingsway) was unchallenged and points to his being disabled to the extent that he is unable to perform his essential tasks within the meaning of the Schedule.

The report of Dr. Johnson, most certainly, is not probative of ability to work, and makes no reference to what, if any, connection there is between Mr. Hassan’s presenting symptoms and a motor vehicle accident. It would have had no effect on the result. While Dr. Arndt apparently goes into more detail, Mr. Hassan's credibility becomes a major factor in the evaluation of the medical and psychological evidence, based as it is to a large degree on self-reporting. Dr. Fernando’s conclusions about post-traumatic stress disorder refer to two car accidents, and rely on the history related by Mr. Hassan. That history, as amply detailed in the decision, was suspect. In any event, the arbitrator found she could not conclude that the symptoms Mr. Hassan claimed to be suffering from led to an inability to perform his essential tasks.

The arbitrator also noted that Dr. Blazkova's report contained conclusions on disability at odds with the symptoms reported, while the contemporaneous clinical notes and records showed continuing improvement in Mr. Hassan's condition over the spring and summer of 1992. There was a temporal connection with Mr. Hassan's failed mediation and the advent of the psychological disability claim which left questions in the arbitrator’s mind. Dr. Blazkova was not called to testify.

The standard of review on appeal where an error or a misapprehension of the facts is alleged has been set out in numerous appeal decisions, and can be taken as settled. My duty is not to re-try the issues as if presented for the first time, or to cast the evidence in a different light in the absence of seeing or hearing the witnesses. I can interfere with an arbitrator's factual findings or weighing of the evidence only if there is insufficient or no evidence to support those findings or their assessment.

Here, the arbitrator records why she did not believe Mr. Hassan was more forthright with his doctors than what she had observed at the hearing. On a balance of probabilities, the arbitrator was not satisfied that whatever injury Mr. Hassan may have suffered affected his ability to work or perform his essential tasks. Mr. Hassan says that evidence was only in relation to his physical injuries, and not his psychological ones. The arbitrator disagreed, holding the evidence on that issue was no more capable of belief than any other, given its foundation.

I am not prepared to overturn the arbitrator's findings on credibility or entitlement to benefits on the material before me. Accordingly, I see no basis on which to interfere with her findings on disability. It is therefore not necessary to deal with Mr. Hassan's claim for a special award. The appeal is dismissed.

IV. EXPENSES

Mr. Hassan was unsuccessful in his claim that there was a reasonable apprehension of bias such that a new hearing should be held. He had the same material to review as I did, and it must have been obvious to him that the claim had very little prospect of success.

The major hurdle he faced in the appeal was to challenge the arbitrator's findings against him on credibility. He was found to have given unreliable testimony, tailored to suit his specific purposes. This impacted not only on the arbitrator's assessment of the amount of weekly income, but his eligibility for benefits. The arbitrator was not satisfied Mr. Hassan was any more truthful in reporting his medical condition to various doctors. It is clear the arbitrator viewed Mr. Hassan's claims, based on his subjective experiences of pain and emotional distress, with skepticism.

These findings were supported throughout the evidence. The documents and available testimony point to an ill-conceived appeal. Each party will bear their own expenses.

September 12, 1997

Elisabeth Sachs

Director of Arbitrations

Date