Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 75
Appeal P96-00046
OFFICE OF THE DIRECTOR OF ARBITRATIONS
HAILESELASSIE A. BAHITA
Appellant
and
GAN CANADA INSURANCE COMPANY
Respondent
Before:
Susan Naylor, Director's Delegate
Counsel:
Haileselassie A. Bahita (in person)
Larry Kielbowich (for Gan Canada)
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 arbitrator's order, dated April 23, 1996, is confirmed
No appeal expenses are awarded.
May 2, 1997
Susan Naylor Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Haileselassie Bahita appeals an arbitrator's order dated April 23, 1996, which denied him weekly income benefits from January 4, 1994 onwards. GAN Canada Insurance Company ("GAN Canada") paid Mr. Bahita benefits for five months following an automobile accident on July 27, 1993, but then terminated them. The arbitrator concluded that Mr. Bahita did not qualify for continued benefits. She also refused to order a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, but granted Mr. Bahita his appeal expenses.
II. THE COURSE OF THE APPEAL
Mr. Bahita was represented by a lawyer at the arbitration, but did not have a representative on the appeal. In his Notice of Appeal he listed his grounds of appeal as follows:
The medical information available at the time of the Arbitration was not submitted. There are concerns about the quality of interpreting services. The discussions between my lawyer and the insurer's representative were not interpreted to me.
Mr. Bahita has not elaborated on these statements, although he was asked to do so. In a letter dated July 18, 1996, I stressed the importance of providing full written particulars in support of his appeal:
In Mr. Bahita's case, he should specifically state his concerns about the quality of the interpreting services, how it related to the evidence he gave, and what difference he felt it made to the result. Similarly he should state how the conversations of the lawyers affected the arbitrator's result.
Mr. Bahita should tell me what new medical evidence he wishes to introduce, why he could not have presented it at the arbitration and why it is important.
The appeal in this matter was delayed for almost nine months, and the time for filing written submissions extended a number of times at Mr. Bahita's request. Mr. Bahita initially requested a delay on grounds of ill-health, filing a doctor's letter indicating that he was suffering from a severe depressive illness and would not be able to provide satisfactory evidence in a hearing. A number of months later, I requested an update on Mr. Bahita's health, but did not receive anything from him. I delayed dealing with the appeal because I received a letter from a lawyer who was considering representing Mr. Bahita and wanted more time to review his case. Subsequently, the lawyer confirmed that she had not been retained, but stated that Mr. Bahita wished to provide written submissions on his own behalf. I therefore provided Mr. Bahita with some more time to file his material. I did not hear from him and advised the parties that I intended to proceed based on the documents before me.
The appeal record includes the arbitration exhibits and a transcript of the testimony given at the arbitration hearing, in which Mr. Bahita was the only witness. GAN Canada filed written submissions and a brief of authorities. Mr. Bahita did not file any written submissions, nor did he provide the additional medical evidence referred to in his Notice of Appeal.
III. ANALYSIS
In his Notice of Appeal, Mr. Bahita complained about the quality of interpretation services provided at the hearing. Mr. Bahita's first language is not English and, at his request, the Commission arranged for an interpreter in Amharic to translate the proceedings for him.
From the transcript, it is clear that there were some interpretation problems. On a few occasions, the arbitrator interrupted the proceeding while Mr. Bahita was giving testimony to ensure that the interpreter was translating the complete question or answer given. However, these difficulties were minor and quickly corrected. The main problem occurred after Mr. Bahita completed his testimony and when his lawyer was making his final argument. Toward the end of the lawyer's hour-long presentation, the arbitrator noticed the interpreter was not translating the submissions to Mr. Bahita, apparently thinking it was not required. She instructed him to interpret the rest of the submissions, but rather than delaying the completion of the hearing, she proposed that the lawyer's submissions could be read-back by the court reporter and translated for Mr. Bahita's benefit when the hearing ended. After consultation with Mr. Bahita, his lawyer advised the arbitrator that this was not necessary, and the hearing continued.
It is unfortunate that Mr. Bahita did not have the benefit of an interpreter during his lawyer's submissions. I can understand his concern about this. However, there is no suggestion that the omission affected the presentation of his case in any material way. Mr. Bahita's testimony was completed by this time and there is no basis to conclude that the absence of an interpreter during his lawyer's submissions affected the fairness of the hearing he received.
Mr. Bahita was represented by a competent and experienced lawyer at the hearing. Although there were some minor problems earlier on, the main problem seems to have been the mix-up during submissions, and no objection was made about the way the matter was handled. There is no indication that an injustice resulted.
Mr. Bahita complained that discussions between his lawyer and the GAN Canada's representative were not interpreted for him. He did not explain the context of these discussions and it is not clear if he is referring to what happened during submissions or to other conversations between the lawyers. Given this, I am in no position to determine whether Mr. Bahita's concern has any merit. However, lawyers' discussions generally do not form part of the evidence at a hearing or affect the result, and the transcript indicates nothing out of the ordinary.
I am satisfied that Mr. Bahita received a fair hearing before the arbitrator and that no injustice occurred. I have reviewed the transcript and the medical reports and can find no reason to interfere with the arbitrator's findings in this case. Mr. Bahita's appeal therefore is dismissed.
IV. EXPENSES AND INSURER'S AWARD
GAN Canada requested an award under section 282(11.2) of the Insurance Act, on the basis that the appeal was frivolous, vexatious or an abuse of process. The authority to make an award against an insured is carefully circumscribed. The subsection is not equivalent to a general costs power. The transcript shows that there were some problems involving the interpreter at the hearing, and that Mr. Bahita's concerns were not groundless. Although his appeal is unsuccessful, I would not characterise it as frivolous, vexatious or an abuse of process.
In the circumstances of this case, no expenses are awarded
May 2, 1997
Susan Naylor Director’s Delegate
Date