Neutral Citation: 1997 ONICDRG 3

Appeals P-003827 and P-003828

OFFICE OF THE DIRECTOR OF ARBITRATIONS

DEEP SINGH and SAROJNI SINGH

Appellants

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Respondent

Before:

David R. Draper, Director’s Delegate

Counsel:

Deep Singh and Sarojni Singh (representing themselves)

Stephen Malach (for Co-operators)

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 September 29, 1995, is confirmed.

2. No appeal expenses are payable.

January 8, 1997

David R. Draper Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by Deep Singh and Sarojni Singh from an arbitration decision, dated September 29, 1995, in which the arbitrator denied their claims for additional accident benefits, ordered them to repay specified amounts to Co-operators General Insurance Company (“Co-operators”), and denied them their arbitration expenses.

II. BACKGROUND

Deep Singh and Sarojni Singh are spouses. Both claim accident benefits from Co-operators based on a series of automobile accidents. Within a one-year period, Mr. Singh was involved in four automobile accidents - November 16, 1991, October 21, 1992, November 17, 1992 and November 24, 1992. Mrs. Singh was also involved in these accidents, except the one on October 21, 1992.

The accident on November 16, 1991 involved a different insurer - Allstate Insurance Company of Canada. With respect to all three accidents in the fall of 1992, however, Co-operators is the insurer responsible for paying Mr. and Mrs. Singh’s benefits under Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (“the Schedule”).

Co-operators paid some benefits to both Mr. and Mrs. Singh, but challenged their claims about their pre-accident income and the extent of their disabilities. Following an unsuccessful attempt at mediation, the dispute went to arbitration. Mr. and Mrs. Singh were represented by separate lawyers throughout the arbitration process. The hearing was unusually long, taking place over ten days and involving 21 witnesses and 120 exhibits.

The central issue in the arbitration hearing was Mr. and Mrs. Singh’s credibility. At page eight of her lengthy decision, the arbitrator summarized her assessment:

The Applicants’ credibility in this proceeding is crucial. They rely extensively on their own testimony, and in the case of their business dealings, almost exclusively so. On the medical front, the findings of Mr. and Mrs. Singh’s doctors rest to a significant degree on their having been given an accurate history and reliable report of symptoms.

I find that neither Mr. or Mrs. Singh are reliable witnesses and their testimony cannot be relied upon.

I accept, from the medical evidence, that Mr. Singh suffers from significant psychological difficulties. These difficulties may have adversely affected his presentation of his testimony at the hearing, particularly in the face of vigorous cross-examination. However, his psychological difficulties alone do not adequately explain the manifold inconsistencies and discrepancies in the evidence. These inconsistencies relate to all relevant and material parts of the claim, including the Applicants’ prior medical history, their business affairs, the pattern of accidents, and their actions afterwards. Taken singularly, the deficiencies can be explained away; cumulatively, the Applicants’ claims become difficult to accept.

This negative assessment of Mr. and Mrs. Singh’s credibility compromised their claims to such an extent that the arbitrator concluded they had failed to establish their entitlement to any accident benefits at all. More specifically, she ordered as follows:

Deep Singh

1. Mr. Singh is not entitled to weekly income benefits after September 21, 1993.

2. Mr. Singh is required to repay to the Co-operators the amount of weekly income benefits paid to him from October 28, 1992 to September 21, 1993. These come to a total of $6,421.76. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

3. Mr. Singh is not entitled to the cost of his brother’s round trip airfare to visit him from September 1993 to January 1994.

4. Mr. Singh is not entitled to housekeeping expenses.

5. Mr. Singh is not entitled to his expenses incurred in respect of the arbitration.

Sarojni Singh

1. Ms. Singh is not entitled weekly income benefits after May 29, 1993.

2. Ms. Singh is required to re-pay to the Co-operators the amount of weekly income benefits paid to her from November 25, 1992 to May 29, 1992.¹ This comes to a total of $4,936.96. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

3. Ms. Singh is not entitled to housekeeping expenses.

4. Ms. Singh is required to repay to the Co-operators the amount of housekeeping expenses paid to her from November 25, 1992 to January 3, 1993. The total amount paid was $630. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

5. Ms. Singh is not entitled to her expenses incurred in respect of the arbitration.

Mr. and Mrs. Singh appealed every paragraph of this order, claiming ongoing entitlement to weekly income benefits at the maximum rate of $600, visitor’s expenses, housekeeping expenses, and arbitration expenses. With their Notice of Appeal, they filed an 11-page statement setting out their disagreements with the arbitration decision.

III. PRELIMINARY APPEAL ISSUES

In their Notice of Appeal, Mr. and Mrs. Singh asked for an order staying the arbitration order so they would not be required to make any repayment to Co-operators pending the outcome of the appeal. They also asked that the matter be reheard.

Following my appointment, I wrote to the parties asking Mr. and Mrs. Singh to comply with the Dispute Resolution Practice Code by indicating whether they were ordering a transcript of the arbitration hearing. Further, I advised Co-operators that the appeal was properly filed and asked for its Response, including submissions on the Singh’s request for a stay and a rehearing.

After receiving Co-operators’ submissions, I dealt with the following issues in a follow-up letter to the parties:

• Mr. and Mrs. Singh were asked again whether they were ordering a full or partial transcript of the arbitration hearing (A transcript of the first four days of the hearing was included in the arbitration file and was treated as part of the appeal record).

• The stay request was denied as follows:

The material provided by Mr. and Mrs. Singh does not address the issue of hardship. However, I am not persuaded, based on the material provided to date, that there is sufficient strength to the appeal to justify an order staying the arbitration decision. Previous appeal decisions have consistently held that the arbitrator’s decision should not be disturbed unless his or her conclusions have insufficient or no evidence to support them, resulting in an injustice. As a result, Mr. and Mrs. Singh face a significant task, particularly in the absence of a transcript.

• The request to rehear the case was denied.

• Mr. and Mrs. Singh were asked to specify what new evidence they wanted to submit and to explain how it met the criteria for admitting new evidence set out in the letter.

• Mr. and Mrs. Singh were asked for their written submissions, as required by section 45.1 of the Dispute Resolution Practice Code.

After some delay, I received a letter from Mr. Singh objecting to Co-operators’ late filing of its Response, and asking for at least three months to provide the information requested in my letters because he was busy at school writing a thesis. Co-operators opposed such a lengthy delay. I advised the parties in writing that Co-operators would be allowed to participate in the appeal. In reaching this decision, I accepted its explanation that it was waiting for the usual letter from the Commission confirming that the appeal was properly filed. Further, I found no indication that the delay materially prejudiced Mr. and Mrs. Singh, particularly in light of their request for a lengthy extension.

I also granted the Singh’s request for an extension. They were given a full three months from the date of their request to provide the information. Despite the extension, nothing further was received from Mr. and Mrs. Singh. As a result, I advised the parties that the appeal would proceed on the record, without oral submissions.

IV. ANALYSIS

The problem with this appeal is that Mr. and Mrs. Singh are asking me to second-guess the arbitrator’s assessment of the evidence. In their 11-page attachment to the Notice of Appeal, they present a number of reasons why the arbitrator should have accepted their evidence and rejected Co-operators’. As stated in many previous decisions, however, my role on appeal is not to reassess the evidence. The arbitrator heard the witnesses and was able to consider the exhibits in light of their testimony. In particular, she could assess Mr. and Mrs. Singh’s credibility. Because the arbitrator was in a far better position to evaluate the evidence, her decision should not be disturbed unless she made an error resulting in an injustice, or her findings are unsupported by the evidence.

Based on my review of the record, I am satisfied there was ample evidence to support the arbitrator’s findings. The onus was on Mr. and Mrs. Singh to present evidence at the arbitration hearing to establish their claims. They were helped in that task by separate lawyers. As noted above, the hearing was unusually lengthy, taking place over 10 days and involving 21 witnesses and 120 exhibits. In her decision, the arbitrator explains in considerable detail how she assessed the evidence and why she concluded the onus was not met. That was her task and I find no error in the approach taken.

Mr. and Mrs. Singh suggest that evidence is available to establish that the decision is based on some specific errors. For example, they say that repair bills could be submitted to show that the arbitrator was mistaken about the damage done to the vehicles in the various accidents. They give no explanation, however, why this evidence was not presented at the hearing, although they were asked to do so. More importantly, I am not persuaded that any of the alleged errors are sufficiently critical to the decision that the result would have been different even if they were corrected.

For these reasons, the appeal is dismissed.

V. APPEAL EXPENSES

It is well established that the criteria for granting appeal expenses are different from arbitration expenses. Expenses have been routinely denied if the appeal involves a dispute about how the arbitrator weighed the evidence. In my opinion, this appeal falls into that category. I am not persuaded that the issues raised were sufficiently novel or meritorious that Co-operators should be required to pay Mr. and Mrs. Singh’s appeal expenses despite their lack of success.

VI. INSURER’S ASSESSMENT FEE

Co-operators submits that Mr. and Mrs. Singh should be ordered to pay its assessment fee of $500. According to section 284(5) of the Insurance Act, section 282(11.2) applies to appeals. Section 282(11.2) provides:

282. -(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14. [emphasis added]

Although this appeal was probably misguided, even at its commencement, I am not convinced that it was “frivolous, vexatious or an abuse of process,” as required by the legislation. Therefore, I deny Co-operator’s request.

January 8, 1997

David R. Draper Director’s Delegate

Date

Footnotes

1. 1The body of the decision makes it clear that this date should be May 29, 1993, not 1992.