Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 85

Appeal P00-00010

L. MARGARET R. TURNER Appellant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Respondent

Before: David R. Draper, Director’s Delegate

Representatives: L. Margaret R. Turner, unrepresented Albert Conforzi (for Economical)

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 August 6, 1999 is confirmed.
L. Margaret R. Turner shall pay the appeal expenses of Economical Insurance Company, fixed at $750.

May 8, 2000

David R. Draper Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by L. Margaret R. Turner from an arbitration order dated August 9, 1999. She claims the arbitrator erred in concluding that she is not entitled to weekly income benefits under s.12(5)(b) of the Schedule.¹

II. BACKGROUND

This dispute has a lengthy history. It stems from an automobile accident on May 13, 1991. While approaching an intersection, Miss Turner² struck the car ahead of her. According to the arbitrator, the impact dented her front licence plate and the back licence plate of the other vehicle. Despite the minor property damage, Miss Turner claims that the accident resulted in injuries that have dramatically affected her life, including her ability to work.

Economical Mutual Insurance Company (“Economical”) initially paid accident benefits to Miss Turner, including weekly income benefits. Although its records suggest some doubts about the claim, Economical continued paying weekly income benefits for three years – until May 12, 1994. At that point, the test changed. For the first 156 weeks of disability, weekly income benefits are payable if the insured person’s accident-related injuries leave him or her substantially unable to perform the essential tasks of his or her occupation or employment.³ After 156 weeks, a greater range of employment is considered, with benefits being payable only if the insured person is continuously prevented from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.⁴

Miss Turner applied for mediation, claiming she met the post-156 week test and, therefore, was entitled to ongoing weekly income benefits after May 12, 1994. At the mediation, Miss Turner was represented by counsel – Mr. Vasken Khabayan. When the dispute was not resolved, she applied for arbitration, still represented by Mr. Khabayan.

At the pre-hearing in May 1995, the arbitration hearing was set for four days in October 1995. Before that, two more pre-hearings were held, with the final one taking place on October 10, 1995, just two days before the hearing was to start. Although Miss Turner participated in this pre-hearing, she withdrew before it was completed. In her absence, counsel negotiated what they considered to be a settlement of the issues in dispute. After the dates for the hearing passed, counsel for Economical sent Mr. Khabayan disclosure documents and a release for Miss Turner’s signature. However, she refused to sign the release and, as a result, Economical did not advance the settlement funds.

Five months later, in March 1996, Miss Turner wrote to the Commission stating that the dispute was not resolved and asking for “an extension” of the arbitration. Following a delay while she retained new counsel, a preliminary hearing was scheduled for March 20, 1997 before Arbitrator Friendly. The issue was whether Miss Turner was entitled to proceed. Economical argued that the agreement was never rescinded and, therefore, the matter should be treated as settled. Miss Turner’s new lawyer, Mr. Michael Gillen, argued that Miss Turner had to approve the “proposed” settlement, which she never did.

Arbitrator Friendly released his decision on June 30, 1997. He found that Mr. Khabayan had sufficient authority to settle the claim on Miss Turner’s behalf and that an agreement was reached as set out in the release. However, looking at the requirements of the Settlement Regulation,⁵ he concluded that the settlement was never finalized and, therefore, Miss Turner was entitled to proceed with her arbitration. This decision was not appealed.

The arbitration hearing finally went ahead before Arbitrator Joachim in October 1998, three years after it was originally to start. Miss Turner was represented by Mr. Gillen. As I understand it, most of the four days scheduled for the hearing was spent on Miss Turner’s testimony. The hearing then continued over seven more days, ending in May 1999. In addition to Miss Turner, Mr. Gillen called ten witnesses – five lay witnesses and five medical witnesses. Economical called only one witness, an investigator.

Arbitrator Joachim released her decision on August 6, 1999. In it, she deals at length with the question of causation. While she accepts that Miss Turner suffered an exacerbation of pre-existing neck, back and ligament pain as a result of the accident, she does not find a connection between Miss Turner’s other medical problems and the accident. Arbitrator Joachim concludes that by the 156-week mark, Miss Turner’s accident-related injuries did not prevent her from pursuing suitable employment. Despite her lack of success, Miss Turner was granted her arbitration expenses, payable by Economical.

III. THE APPEAL

Within the 30-day appeal period, Miss Turner wrote to the Commission indicating that she wanted to appeal and enclosing the filing fee. She was no longer represented by Mr. Gillen. As requested, the Appeals Administrator sent the proper forms and held the filing fee in abeyance pending receipt of Miss Turner’s Notice of Appeal. When nothing was received by late December 1999, the Appeals Administrator returned the filing fee. Miss Turner then sent a lengthy fax, stating that she had been unable to find a new lawyer.

In late January 2000, more than four months after the appeal period expired, Miss Turner filed a Notice of Appeal, with the filing fee, requesting an extension of the appeal period. Economical objected, arguing that the delay was lengthy and that the appeal did not raise any question of law. Despite the delay, I allowed the appeal to proceed. A hearing was scheduled for April 26, 2000, with the parties being advised that it was for “argument on the material already presented at the arbitration and on appeal. No new evidence will be accepted.”⁶

Miss Turner represented herself at the appeal hearing. Unfortunately, it became clear that she wanted to introduce documents, call at least one witness and give evidence herself. Economical objected. I held that the hearing was only for the purpose of oral submissions, repeating the ruling set out in my letter to the parties. As a result, Miss Turner was not allowed to introduce new evidence or call witnesses.

Despite my ruling, Miss Turner’s submissions were more in the nature of evidence. She was given a great deal of latitude over roughly four hours of submissions and reply. As at the arbitration, she claims that all her medical problems are related to the accident. However, this simply is not as obvious as she seems to believe.

In my view, there is nothing to suggest that the arbitrator made any error of law. On the contrary, the decision properly defines the issues in dispute, states the appropriate tests for eligibility and causation, methodically reviews the evidence and sets out clear findings with reference to specific evidence, and reaches conclusions based on those findings. Miss Turner’s real objection is with the arbitrator’s evaluation of the evidence. As stated in many previous decisions, this is not a basis for appeal. Even if it were appropriate for me to reconsider the case based on the evidence before me, I would reach the same conclusion.

In her Notice of Appeal, Miss Turner raises a number of specific grounds of appeal that should be addressed. First, she claims that she was incompetently represented at the arbitration hearing. I find no basis for this claim. Mr. Gillen is an experienced counsel familiar with proceedings at the Commission. This hearing took significantly longer than usual, with Mr. Gillen presenting a great deal of documentary evidence and calling eleven witnesses. Most disturbingly, the only specific complaints made by Miss Turner were inaccurate. On a number of occasions at the appeal hearing, she suggested that Mr. Gillen failed to submit important evidence, only to find it among the exhibits. Looking at the decision, it appears that Miss Turner was vigorously represented with. As an example, Mr. Gillen was able to successfully limit the impact of Economical’s surveillance evidence.

Miss Turner also argues that the arbitrator erred in disallowing evidence about her pre-accident ice-skating accomplishments. There is no evidence, however, that the arbitrator refused to accept any of Miss Turner’s evidence. Given her uncertainty about what evidence was presented, I reject this argument.

Finally, the Notice of Appeal includes serious allegations about the actions of Economical and its counsel. These allegations are intemperate and without basis. Put in the kindest light, they reflect Miss Turner’s frustrations and unfamiliarity with the process. I accept, as did the arbitrator, that she sincerely believes in her claim. However, I find no indication that Economical failed to meet its obligations, or that its counsel acted inappropriately in any way. At the appeal hearing, Mr. Conforzi was commendably patient in accepting the latitude that Miss Turner was given in her submissions.

III. POST-HEARING ISSUE

The day after the appeal hearing, Miss Turner sent a fax asking that I not make a decision until she obtains a transcript of the arbitration hearing. I rejected this request. The appeal hearing proceeded on the basis, set out in Miss Turner’s Notice of Appeal, that she was not ordering transcripts. During the appeal hearing, she raised the issue of transcripts, expressing surprise that I did not have them. However, she did not pursue the issue and the hearing concluded. While it may be possible to reopen an appeal hearing before the decision is issued, it should be done sparingly. In this case, I was not persuaded that a transcript was likely to have any bearing on the outcome of the appeal and, therefore, would be an unnecessary expense that would only delay the decision.

IV. APPEAL EXPENSES

The award of expenses is now governed by the following criteria in the Settlement Regulation⁷ and s.73.2 of the Dispute Resolution Practice Code:

Each party’s degree of success in the outcome of the proceeding.
Conduct of the insurer or insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct, or hinder the proceeding, including failure to comply with undertakings or orders.
Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.
The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.
If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.
Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

Applying these criteria, I conclude that Miss Turner must bear some of Economical’s appeal expenses. Not only was she unsuccessful, her actions prolonged the proceedings and at least some of her appeal grounds were manifestly unfounded. Rather than hearing further submissions on the amount of the expenses, they will be fixed at $750.