Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2001 ONFSCDRS 100

Appeal P00-00041

OFFICE OF THE DIRECTOR OF ARBITRATIONS

LIBERTY MUTUAL INSURANCE COMPANY

Appellant

and

MOLLY R. PERSOFSKY

Respondent

and

INSURANCE BUREAU OF CANADA and ONTARIO TRIAL LAWYERS ASSOCIATION

Intervenors

Before:

David R. Draper, Director of Arbitrations (A)

Counsel:

Eric T. Sigurdson (for Liberty Mutual)

Jeremy R. Solomon (for Molly R. Persofsky)

J.A. Prestage (for Insurance Bureau of Canada)

Stewart C.E. Gillis (for Ontario Trial Lawyers Association)

APPEAL ORDER ON MOTION TO ADMIT EVIDENCE

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

1. The motion is allowed in part:

(a) The affidavit of Suzanne Courtlander, sworn March 23, 2001, and the documentary evidence listed in the appendix to this decision are admitted as extrinsic evidence in this appeal.

(b) The affidavit of Beth Jones, sworn March 23, 2001, and the attached exhibits, are not accepted as evidence in this appeal.

2. The issue of expenses is reserved to the main appeal.

July 3, 2001

David R. Draper Director of Arbitrations (A)

Date

REASONS FOR DECISION

I. SUMMARY

On June 23, 2000, Arbitrator Palmer ordered Liberty Mutual Insurance Company (“Liberty Mutual”) to pay various benefits under the SABS-1990.¹ In addition, she ordered a special award on the basis that Liberty Mutual unreasonably withheld benefits, criticizing its failure to ensure that Mrs. Persofsky received the services she needed. The amount of the special award is as follows:

40 per cent of the amounts to which she [Mrs. Persofsky] is entitled for housekeeping and for care as of this date, together with interest on all amounts owing to her (including unpaid interest), at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule [the SABS-1990]. On the swimsuit claim, Liberty Mutual shall pay a special award of 50 per cent. On all other amounts owing, Liberty Mutual shall pay a special award of 30 per cent.

Liberty Mutual appeals this part of the order. For the purposes of the appeal, it accepts the arbitrator’s conclusion that it unreasonably withheld benefits, but challenges the amount of the special award.² In Liberty Mutual’s submission, the arbitrator erred in law in improperly exercising her discretion under s.282(10) of the Insurance Act. It also makes a much broader argument, claiming the entire arbitration order cannot stand due to institutional bias. The basis of this argument is that in a system where only insured persons can choose arbitration instead of court, there will be a reasonable apprehension of bias if arbitrators do not have security of tenure and, as a result, have an interest in encouraging insured persons to choose arbitration, and an ability to do so through their decisions.

The remedy Liberty Mutual seeks, as set out in its written submissions, is as follows:

(a) An order rescinding the special award or, in the alternative, an order reducing the amount to an appropriate level.

(b) In the event that institutional bias is established, an order setting aside, voiding and/or quashing the entire arbitration order and ordering a new hearing before a proper body.

(c) As an alternative to paragraph (b), an order rescinding, voiding and/or quashing the special award.

Two intervenors have been given status to make submissions on both the special award and institutional bias issues. The Insurance Bureau of Canada (“IBC”) is a national organization representing property and casualty insurers in Canada. The Ontario Trial Lawyers Association (“OTLA”) is comprised of lawyers who represent plaintiffs, and focuses on issues of civil justice.

This is a motion by Liberty Mutual to admit evidence in support of its appeal. The evidence can be divided into two categories:

(a) Evidence in support of Liberty Mutual’s submission that the arbitrator’s order is invalid due to institutional bias or reasonable apprehension of bias.

Liberty Mutual seeks an order admitting a large number of documents it claims are relevant to the question of institutional bias. Specifically, it wants to rely on the affidavit of Suzanne Courtlander, sworn March 23, 2001, and the documentary evidence listed in Schedule A to its Notice of Motion and reproduced in the appendix to this decision. Although Liberty Mutual acknowledges that institutional bias was not raised at the arbitration hearing, it submits that the evidence is admissible as extrinsic evidence or, in the alternative, as fresh evidence. The IBC agrees, arguing that the institutional bias issue should be decided on the most complete information possible.

Mrs. Persofsky objects, claiming the evidence is irrelevant. In her submission, the alleged bias or unfairness arises directly from the legislation, which Liberty Mutual is not challenging. In the alternative, Mrs. Persofsky argues that Liberty Mutual had ample information about the appointment of arbitrators and should have raised its concerns at the arbitration hearing, not on appeal after receiving a decision it did not like.

OTLA also disputes the admissibility of this evidence. In its submission, the institutional bias issue is not properly raised as an appeal under s.283(1) of the Insurance Act because it does not involve an error in respect of any issue that was before the arbitrator. OTLA contends that while Liberty Mutual might have been able to advance its argument as a bias application under s.282(12) of the Insurance Act, or as an application for variation/revocation under s.284(1), it cannot proceed by way of appeal. Alternatively, OTLA submits that the evidence could have been obtained with reasonable diligence prior to the arbitration hearing.

(b) Evidence in support of Liberty Mutual’s submission that the arbitrator erred in ordering a special award or, in the alternative, in respect of the amount of the award.

In making the special award order, the arbitrator stated that she had no evidence Mrs. Persofsky received any information about the statutory accident benefits available to her as a result of her accident. Liberty Mutual wants to introduce new evidence on appeal to demonstrate that it believed she had information about housekeeping and attendant care services. Specifically, it seeks an order admitting the affidavit of Beth Jones, sworn March 23, 2001, attaching an Application for Expenses form completed by Mrs. Persofsky in August 1995, and the standard accident benefit claims package.

Liberty Mutual concedes that this is new evidence, not extrinsic evidence, but submits that it meets the criteria established in a long line of appeal decisions, starting with Plows and Jevco Insurance Company, (OIC P-000175 and P-000588, May 22, 1992). In the alternative, Liberty Mutual argues that because these are standard forms approved by the Financial Services Commission of Ontario (“FSCO”), they are admissible to show what information was provided to Mrs. Persofsky through the forms.

Mrs. Persofsky opposes the admission of this evidence. In her submission, the extent of her knowledge about the benefits available to her was in issue at the arbitration hearing. Consequently, Liberty Mutual had every opportunity to cross-examine her and present evidence in support of its position, which it did. It would be unfair, she argues, to allow Liberty Mutual to file additional evidence that it could have filed at the hearing, particularly without giving her a chance to respond. The intervenors did not make submissions on this issue.

II. ANALYSIS

This proceeding has been complicated in many respects. Consequently, it is important to define the issues clearly and not lose sight of the rules that apply to dispute resolution under the Insurance Act. Most significantly, this is an appeal under s.283(1) of the Insurance Act, not a generalized inquiry into the fairness or structure of the dispute resolution system. A party to an arbitration can appeal the arbitrator’s order to the Director of Arbitrations (“Director”) on a question of law. This clearly allows Liberty Mutual to challenge the special award. The institutional bias argument is far less obvious, particularly as it was not raised during the arbitration process.

This uncertainty is exacerbated by Liberty Mutual’s request for relief. As noted above, it asks that the whole arbitration order be set aside, voided or quashed, and that I order a new hearing before “a proper body.” My authority for making such an order is unclear. According to s.283(5) of the Insurance Act, I can confirm, vary or rescind the order appealed from, or substitute my own order for that of the arbitrator. While this would allow me to rescind the arbitrator’s order, which appears to be what Liberty Mutual wants, I am only authorized to appoint arbitrators from the roster maintained by the Superintendent. Based on my current understanding of Liberty Mutual’s position, it seems unlikely that this would be viewed as an adequate remedy. Nevertheless, this is the route Liberty Mutual has chosen.

OTLA suggests that the institutional bias issue should have been raised in a different type of proceeding. The Insurance Act includes two options in addition to appeal. According to s.282(12), an application can be made to the Director for the appointment of a new arbitrator if a party believes the arbitrator is biased. Alternatively, there is the variation/revocation authority in s.284. Under this section, a party can apply to the Director to have an arbitration order varied or revoked in the following situations:

• there has been a material change in the circumstances of the insured person;

• evidence not available on the arbitration has become available; or

• there is an error in the order.

While it might have been possible for Liberty Mutual to follow one of these other routes, I am satisfied that the appeal provision in s.283(1) of the Insurance Act is broad enough to include this kind of jurisdictional challenge. Also, it is not clear that the other options are more appropriate. Bias applications under s.282(12) are geared more toward problems that arise before the decision is released, and it is far from obvious that the variation/revocation criteria apply in this situation. There is also the practical consideration that Liberty Mutual’s challenge to the special award is proceeding as an appeal. The real question, dealt with below, is whether Liberty Mutual’s failure to raise the institutional bias issue at arbitration amounts to waiver.

A. Evidence re Institutional Bias

Although this is simply a motion to admit new or extrinsic evidence, not a determination of the merits of the appeal, the responses from Mrs. Persofsky and OTLA demand some analysis of the law regarding institutional bias. The following general principles are found in the decisions provided:³

• Persons involved in litigation before the courts are entitled to have their claims dealt with by judges who are independent and impartial. This involves three essential requirements: security of tenure, financial security and institutional independence (Valente v. R., 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673).

• The Valente criteria apply to tribunals, although not with the same strictness. The requisite level of independence depends on the nature of the tribunal (Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3).

• Institutional independence and institutional impartiality are related but distinct requirements. Even if an adjudicator is sufficiently independent, there may be “a reasonable apprehension of bias on an institutional or structural level.” (R. v. Lippé, 1991 CanLII 56 (SCC), [1991] 2 S.C.R. 3. At p.140, Lamer C.J. stated:

Therefore, whether or not any particular judge harboured pre-conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.

• In Matsqui, supra, Lamer C.J. applied the Lippe test in relation to an administrative tribunal, as follows:

Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

Step Two: If the answer to that question is no, allegations of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.

• The test for reasonable apprehension of bias is based on a well-informed person viewing the matter realistically and practically—and having thought the matter through—and requires that the grounds for the apprehension of bias are substantial, not arising from a “very sensitive or scrupulous conscience.” (Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369.

Liberty Mutual concedes that it cannot complain about any lack of independence of impartiality founded in the legislation. It contends, however, that the Insurance Act does not mandate the employment status of arbitrators—it merely contemplates a roster of arbitrators that can be assigned cases by the Director. As I understand it, this is the crux of Liberty Mutual’s argument. It is the use of full-time arbitrators, whether permanent or contract, that leads to the concern that decisions could be influenced by their self-interest in ensuring that a reasonable number of insured persons choose arbitration instead of court. In my view, this argument fits most comfortably within the concept of institutional impartiality used in some of the court cases.

I turn now to the legislation. In 1990, the Insurance Act was substantially amended. The right to sue for damages resulting from automobile accidents was restricted. In exchange, the role of first-party, no-fault benefits was expanded. As part of these legislative reforms, a dispute resolution system was established in Part IV of the Insurance Act, which has continued without any fundamental changes.

The dispute resolution system initially operated within the Ontario Insurance Commission (“OIC”). This changed in July 1998 with the creation of the FSCO, which integrated the OIC, the Pension Commission of Ontario and the Deposit Institutions Division of the Ministry of Finance. Dispute resolution is now part of FSCO, with the Director being a member of the FSCO Board, just as she was with the OIC.

The dispute resolution process is set out in ss.279-288 of the Insurance Act. In any dispute about entitlement to accident benefits or the amount of those benefits, mediation is a mandatory first step.⁴ No one can proceed to court or arbitration unless mediation has been sought and failed.

Either the insured person or the insurer can initiate mediation, which according to s.9 of the Insurance Act, is conducted by a FSCO employee or some other person appointed as a mediator by the Superintendent of Financial Services (“the Superintendent”).⁵

If mediation fails, the insured person has a choice. He or she can go to court or apply for arbitration.⁶ The insurer’s only option is court. The appointment and selection of arbitrators is governed by ss. 7, 8 and 282(2) of the Insurance Act. According to s.7, the Minister of Finance appoints committees for various purposes, with one committee being given the function of recommending persons to conduct arbitrations. The Superintendent, who is appointed under the Public Service Act,⁷ is directed by s.8 of the Insurance Act to establish and maintain a roster of candidates chosen from among those recommended by the Minister’s Committee. Appointments in individual cases are done by the Director, who is appointed by the Lieutenant Governor in Council.⁸ The Director is charged with appointing an arbitrator from the roster maintained by the Superintendent.

In this case, Arbitrator Palmer was appointed to conduct the arbitration. There is no suggestion she was not on the roster, or that her appointment was contrary to the legislation in any respect. Nor did anyone question her ability to deal with the issues in dispute at any point during the arbitration process. Even on appeal, Liberty Mutual is not alleging that Arbitrator Palmer was actually biased. As counsel stated repeatedly in his oral submissions, the challenge is based on institutional bias, not actual bias.

According to the affidavit of Suzanne Courtlander, Liberty Mutual’s concerns about institutional bias did not arise until after it received the arbitrator’s decision and the appeal was being prepared. During their research, counsel reviewed the FSCO website, including minutes posted from Companies Dispute Resolution Group (DRG) Forum (“Companies Forum”) and Counsel Dispute Resolution Group (DRG) Forum (“Counsel Forum”) dating from late 1997. These minutes included numerous references to a decreasing caseload, the likelihood of staff reductions and the need to attract business. In Liberty Mutual’s view, this raised concerns about institutional bias that it advanced at the first opportunity—in its Notice of Appeal.

After filing its appeal, Liberty Mutual continued to seek information about the process for appointing arbitrators, their employment status and security of tenure. The Superintendent refused Liberty Mutual’s request that she produce information for the appeal, advising that she had no obligation to do so and that the information was not relevant to the issues in dispute.

Liberty Mutual then made a request under the Freedom of Information and Protection of Privacy Act (“FOI”). On consent, the appeal was adjourned until the FOI process was completed. At no point, however, was there any order or agreement that the documents obtained through this process would be admissible in the appeal.

Although I have no doubt that counsel acted diligently, it is difficult to accept that Liberty Mutual was unaware of the issues raised in this appeal. It certainly knew that only insured persons could access arbitration. If this made the arbitrators’ employment status a critical concern, as Liberty Mutual suggests, it could have asked for clarification at any point during the ten-year history of the dispute resolution system. The fact that it might have been required to use the FOI process to obtain some types of information does not mean it was unavailable.

In any event, there was ample information publicly available, and provided through consultation mechanisms like Companies Forum and Counsel Forum, to alert Liberty Mutual to the fact that most arbitrators worked full time, and that there had been concerns about job security from time-to-time due to the possibility of privatizing the system and declining caseloads. The most striking example is a letter from the Superintendent to Liberty Mutual, dated September 24, 1999, seven months before this arbitration hearing, inviting its President and Chief Executive Officer and the Accident Benefits Claims Manager to meet with FSCO’s Director of Mediations and acting Registrar and Executive Co-ordinator. The letter states that the purpose of the meeting was to obtain Liberty Mutual’s views on the program’s strengths and weakness, and to discuss possible new directions for the dispute resolution group. It continues as follows:

You may recall that one of the recommendations emanating from the June 1998 report of the Honourable George Adams was to conduct an annual Customer Satisfaction Survey of the services provided by the DRG. The DRG’s caseload reached its peak in fiscal year 1996/1997 with the receipt of 12,228 new mediation cases and 2,133 new arbitration cases. However, since the Adams’ Report, the actual and projected caseload for the DRG has decreased by almost 40% largely due to the impact of Bill 59. The corresponding 40% staff reduction is already occurring in the mediation group. A similar reduction in arbitration staff is anticipated for the Fall of the year 2000. We have given our staff and stakeholders advance notice of these workload issues to provide ample time to consider the options and alternatives raised by the declining workload.

The significant decrease in caseload has prompted FSCO to ask a number of fundamental questions concerning the DRG’s current structure, program mandate and future direction. As a first step in our analysis, Barbara Dudzinski and Jan Mackintosh would like to meet with both of you to discuss your company’s dispute resolution needs and expectations. They also hope to obtain your views on new opportunities for utilizing the DRG’s recognized experience in dispute resolution. Justice George Adams described the DRG as being “on the cutting edge of dispute resolution best practices.” Barbara Dudzinski and Jan Mackintosh will be contacting you shortly in the hopes of arranging a convenient meeting time.

The record does not establish whether Liberty Mutual met with FSCO representatives to discuss these issues. Nevertheless, the information available to Liberty Mutual leads me to conclude that it could have raised its concerns at the arbitration hearing. The fact that counsel may not have had this letter is not determinative, as there is no suggestion Liberty Mutual did not.

Despite this finding, it is difficult to ignore allegations that cast doubt on the neutrality of the entire arbitration process. As Jones and de Villars state in their text, Principles of Administrative Law (Third Edition), courts have sometimes treated bias as an issue that can be waived, while viewing it as a matter of jurisdiction in other cases. In the authors’ opinion, the better view is to adopt a flexible approach depending on the particular circumstances, the nature of the allegations and the tribunal involved. They go on to discuss the practical difficulties of raising bias before the initial decision-maker, suggesting as follows:

It is important to underline that the tactical use of an allegation of bias should never be acceptable. Our argument is that an allegation of bias made solely as a tactic will fail because it has no merit. It ought to be handled on that basis. If the allegation does have some merit—i.e. if there really is a reasonable apprehension of bias—it seems a little odd to uphold the tribunal’s decision anyway, just because someone did not raise the issue as quickly as they might have.

Despite my finding that Liberty Mutual was, or could have been, in a position to raise the institutional bias issue at the arbitration hearing, I am satisfied it did not wait to raise the argument as a matter of strategy. In reaching this conclusion, I am strongly influenced by the fact that Liberty Mutual promptly complied with the arbitrator’s order. It paid the benefits ordered, except for the special award which it appealed. With respect to this part of the order, Liberty Mutual followed the proper procedure by asking for a stay. In September 2000, I ordered a partial stay, requiring Liberty Mutual to pay $10,000 toward the special award. Not only was that amount paid promptly, Liberty Mutual has pursued its appeal vigorously, again suggesting that its actions are not simply tactical.

There is also an advantage in having the matter addressed at FSCO rather than proceeding directly to court. Despite the awkwardness of reviewing the neutrality of a system in which one participates, it allows an analysis based on a close understanding of the situation. If the matter eventually proceeds to judicial review, my decision, while probably not subject to deference, might assist the court in its deliberations.

For these reasons, I conclude that waiver should not be applied to prevent Liberty Mutual from advancing its institutional bias argument in this appeal.

The remaining question is whether the evidence is admissible in support of the appeal. As outlined above, I believe the argument is relatively narrow—does the use of full-time arbitrators, whether employed or contract, raise a reasonable apprehension of institutional bias? It is not obvious that all the evidence presented is relevant to this issue. However, on a question of institutional bias, I am reluctant to constrain the party’s ability to advance its argument as it sees fit. Further, I am satisfied that Liberty Mutual made a good faith effort to obtain all of the relevant information, viewed broadly, and has simply put it all forward for consideration. As a result, I conclude that the evidence presented by Liberty Mutual in support of its institutional argument should be accepted as extrinsic evidence in the appeal.

Having made this ruling, let me express my concern that this proceeding not be unduly expanded or delayed. I am particularly concerned that it not be side-tracked into questions of actual bias. Without pre-judging the issues in dispute, let me suggest that many of the key factual circumstances may not be controversial, including the following:

• Since 1990, arbitrators chosen by the Superintendent (formerly the Commissioner) for inclusion on the roster have had various relationships to FSCO:

  • most arbitrations have been conducted by full-time employees of the Ontario Public Service;
  • some arbitrations have been conducted by full-time or part-time contract employees of the Ontario Public Service; and
  • a small number of arbitrations have been conducted by people paid on a per diem basis.

• The number of people employed as arbitrators has varied over time.

• The number of arbitration applications received has varied from year-to-year, reaching a high of roughly 2,000 in 1996 and 1997.

• In 1998, arbitrators expressed concerns about their job security due to the possibility of declining caseloads and privatization of the dispute resolution system.

• In 1999, arbitrators and others were advised that due to forecasted reductions in the caseload, the complement of arbitrators could be reduced from 18 to 11.

• The projected decrease in applications did not materialize, with the numbers for 2000 exceeding those for 1999.

Despite my concerns about expanding the scope of this appeal, fairness demands that Mrs. Persofsky be given an opportunity to file evidence in response. I intend to give her the same broad scope I have afforded Liberty Mutual. However, the same does not apply to the intervenors. In my letter decision dated December 20, 2000, I specifically declined to name OTLA or IBC as parties, but accepted them as intervenors to “make legal submissions on the issues of special award and institutional bias.” As a result, they do not have the same status to present evidence. However, they will be allowed to make submissions that the record is deficient in some significant respect. I encourage the participants to discuss the need for additional evidence, but any disagreement can be brought to me by motion.

B. Evidence re Special Award

Appeal decisions, starting with Plows, cited above, have consistently looked to the following criteria, established in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, to determine the admissibility of new evidence:

• The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

• The evidence must be credible, in the sense that it is reasonably capable of belief;

• The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and

• The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

In a relatively recent decision, Director’s Delegate McMahon applied these criteria.⁹ He noted that although the strength demanded of new evidence tends to be higher in civil cases, the goal of finality must be weighed against the affront to common sense involved in shutting one’s eyes to information that contradicts the facts on which the decision was based.¹⁰

Liberty Mutual seeks to admit two documents: an Application for Expenses form completed by Mrs. Persofsky in August 1995, and the standard accident benefits claims package. It submits that although these documents were not formally introduced at the arbitration hearing, the evidence established that Mrs. Persofsky filed both an application for expenses and a general application for accident benefits. In the alternative, Liberty Mutual relies on the fact that these are standard forms approved by FSCO.

The importance of these documents, Liberty Mutual contends, is that they list the types of benefits available, including housekeeping and attendant care services. In its submissions, Liberty Mutual makes it clear that it does not intend to rely on the documents to challenge the arbitrator’s finding that Mrs. Persofsky was unaware that benefits were available for housekeeping and attendant care services. Instead, it submits that they are admissible to establish its “state of knowledge or mind in respect to its belief that Mrs. Persofsky was aware of the availability of benefits including housekeeping and attendant care services.”

I am unable to accept Liberty Mutual’s position which, in my view, goes well beyond the introduction of new evidence. Even accepting that Mrs. Persofsky was given or used these forms, it cannot be assumed that anyone involved in the file on behalf of Liberty Mutual concluded that she understood the benefits available to her. That is a matter of evidence.

Liberty Mutual’s handling of the claim was put in issue at an early stage. The possibility of a special award was raised at the pre-hearing in October 1999, six months before the hearing started. Consequently, Liberty Mutual had every opportunity to explain its actions to the arbitrator, including its understanding of Mrs. Persofsky’s awareness of the benefits available to her. Despite this, Liberty Mutual chose not to call anyone from the company to testify, although one of its senior claims specialists was made available for cross-examination.¹¹ To make matters worse, the arbitration decision makes it clear that counsel for Liberty Mutual pursued this line of questioning in his cross-examination of Mrs. Persofsky, but was unable to produce any documents to challenge her testimony that she was unaware that she could claim housekeeping expense.¹² In the circumstances, the evidence would need to be extremely compelling to reopen the issue at this point. These two forms fall well short of meeting that standard.

July 3, 2001

David R. Draper Director of Arbitrations (A)

Date

Appendix

Exhibits included with the affidavit of Suzanne Courtlander, as summarized by Liberty Mutual

1. Forum Minutes: “Companies DRG Forum”: 05/20/98; 09/29/98; 12/01/98; 03/02/99; 05/02/99; 06/22/99; 12/06/99; 03/01/00

2. Forum Minutes: “Counsel DRG Forum”: 11/28/97; 01/30/98; 03/27/98; 05/29/98; 09/25/98; 03/26/99; 05/28/99; 09/24/99; 12/03/99; 02/18/00; 03/31/00

3. FSCO Brochure entitled “A Real Alternative”

4. Documentation received from the Ministry of Finance, Office of the Information and Privacy Protection, pursuant to the Appellant’s Freedom of Information request as follows:

(a) Financial Services Commission of Ontario - Dispute Resolution Group - List of Arbitrators since 1990

(b) Ontario Insurance Commission - Roster of Arbitrators

(c) Position Description - CSC 075 (Arbitrator)

(d) Ministry of Finance - Human Resources Branch - Contract of Employment

(e) A Guide to your Benefits - For Management and Excluded Employees (Human Resources benefits Handbook)

(f) Jobmart (Advertisement for position of Arbitrator)

(g) AMAPCEO Salary Ranges - Arbitrator

(h) Dispute Resolution Group - appointment of Arbitrator - Sample Contract

(i) Government Appointees

(j) GTA AMAPCEO Seniority List

(k) Key Job Requirements of the Position of Arbitration in the Arbitration Unit

(l) Arbitration Unit Decision Standards Guidelines

(m) Performance Review Evaluation Package

(n) Performance Management Operating Policy-Corporate Management Directives 2000

(o) Performance Appraisal

(p) Performance Development Review in the Arbitration Unit

(q) Pre-Hearing Observation Precedent

(r) Hearing Observation Precedent

(s) Performance Assessment-Arbitration Unit Dispute Resolution Group

(t) Ontario Insurance Commission Dispute Resolution Evaluation Report, dated June 1998, by The Honourable George W. Adams, Q.C.

(u) Ontario Pension Board - Public Service Pension Plan - A Guide for Members

(v) Public Service Pension Plan - Membership Enrollment

(w) Beneficiary Designation Form

(x) Vision and hearing care, LTIP, dental plan, health and hospital, life insurance - Changes to benefit premium rates take effect

(y) Claim for Supplementary Health & Hospital Benefits

(z) Claim for Dental Benefits

(aa) Premium Rates with 8% RST (Effective April of 1999)

(bb) Financial Services Commission of Ontario - Organization Chart

(cc) FSCO Training Binder:

(i) Financial Services Commission of Ontario - What We Do: Functions and Roles of FSCO’s Divisions/Branches/Offices

(ii) Dispute Resolution Process as of November 1, 1996

(iii) Bulletin - Implementing Bill 59: New and revised accident benefits claims forms

(iv) 01B - Notice of Failure to Mediate to Applicant’s Rep - with copy to Applicant

(v) Draft of Decision Letters relating to Pre-Hearings

(vi) Notice of Hearing

(vii) Draft of Decision Letters relating to Pre-Hearings

(viii) Affidavit of Service

(ix) Arbitration Agenda

(x) Introductory Remarks - SOAR Training Manual

(xi) Description of various words

(xii) Automobile Insurance and Rate Stability Act, S.O. 1996, c. - effective November 1996

(xiii) The Ontario Gazette - Ontario Regulation 463/96 made under the Insurance Act

(xiv) Bulletin - Implementing Bill 59: changes to the dispute resolution process

(xv) Arbitration Unit - Decision Standards Guidelines

(xvi) Memorandum - Long Distance Telephone Reporting Procedures

(xvii) Key Job Requirements of the Position of Arbitrator in the Arbitration Unit

(xviii) Security Overview

(xix) Bar-Dispute Resolution Group

(dd) - (uuu) 44 sets of minutes and draft minutes of Dispute Resolution Group - Management Committee dating from June 9, 1995 to February 1, 2000.

(vvv) Conflict of Interest and Post-Service directive for Public Servants and Public

(www) Conflict of Interest Information for All Contract Employees of the Dispute Resolution Group, FSCO

(xxx) Financial Services Commission of Ontario - Two Weeks-At-A-Glance (yyy) Oath of Office and Secrecy

(zzz) Oath of Allegiance

(aaaa) Mediation Statistics Report (January 1, 1990 to 2000)

(bbbb) Arbitration Statistics Report (January 1, 1990 to 2000)

(cccc) Appeals Statistics Report (January 1, 1990 to 2000)

(dddd) Appeals Statistics Graph (January 1, 1990 to 2000)

(eeee) Arbitration Statistics Report (Graph) (January 1, 1990 to 2000) (ffff) Arbitration Statistics Report (April 1, 1990 to June 30, 1990)

(gggg) Appeals Statistics Report (April 1, 1990 to June 30, 1990)

(hhhh) Mediation Statistics Report (July 1, 1991 to September 30, 1991)

(iiii) Collective Agreement

5. Additional Companies and Counsel DRG Minutes

(a) Counsel DRG Forum Minutes dated: 05/26/2000, 09/29/2000, and 11/24/2000

(b) Companies DRG Forum Minutes dated: 06/01/2000

6. Articles and Publications:

(a) Crash (The Motor Vehicle Accident Injury Gazette)

(b) Law Times “Insurer Ignores Medical Evidence, Hit With $30000 ‘Special Award,’” February 14, 2000;

7. Letter from the Superintendent of Insurance FSCO to Liberty Mutual Insurance Company dated September 24, 1999.

Footnotes

1. 1R.R.O. 1990, Reg. 672, as amended, the Statutory Accident Benefits Schedule—Accidents on or between June 22, 1990 and December 31, 1993.
2. 2The parties also disagree about the calculation of the special award. Both have filed accountant’s reports that will be considered in the appeal.
3. 3This summary draws heavily on the recent decisions of the Ontario Court of Appeal in Canadian Union of Public Employees v. Ontario (Minister of Labour) (2000), 2000 CanLII 16932 (ON CA), 51 O.R. (3d) 417, and the Federal Court of Appeal in Canadian Telephone Assn. v. Bell Canada, 2001 FCA 161, [2001] F.C.J. No. 776.
4. 4Insurance Act, s.281(2).
5. 5Before the creation of FSCO in July 1998, this function was carried out by the Commissioner of the Ontario Insurance Commission.
6. 6By agreement, the parties can also submit any issue in dispute to any person for arbitration in accordance with the Arbitrations Act, 1991 [s.281(1)].
7. 7Financial Services Commission of Ontario Act, 1997.
8. 8Insurance Act, s.6.
9. 9Budd and Personal Insurance Company of Canada, (FSCO P99-00032, January 8, 2001)
10. 10This analysis was based on the decision in Mercer v. Sijan (1977), 1976 CanLII 654 (ON CA), 14 O.R. (2d) 12 (C.A.)
11. 11Arbitration transcript for April 20, 2000, p.62.
12. 12Arbitration decision, p.19.