Silvana Sabti v. AXA Insurance (Canada), 2001 ONFSCDRS 12

Financial Services Commission / Commission des services financiers de l’Ontario

Neutral Citation: 2001 ONFSCDRS 12

Appeal: P00-00015

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SILVANA SABTI, Appellant

and

AXA INSURANCE (CANADA), Respondent

Before: Stewart McMahon, Director’s Delegate

Counsel: David McGhee (for the Appellant) Krista Springstead (for the Respondent)

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.

February 5, 2001

Stewart M. McMahon Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Silvana Sabti appeals from an arbitration order dated November 10, 1999, that determined she was not entitled to further weekly income benefits. She also appeals the subsequent order dated February 2, 2000, which required her to pay one half of the Insurer’s arbitration expenses.

The appeal is essentially concerned with the hearing process. Ms. Sabti claims that she was denied a fair hearing as a result of three things. First, two procedural rulings by the arbitrator. Second, her counsel’s incompetence. Third, bias on the part of the arbitrator. Ms. Sabti links her counsel’s misconduct and the charge of bias. She claims that the arbitrator became so angry and frustrated with her previous counsel’s repeated lateness and failure to present the case appropriately, that he was unable to judge the matter in a disinterested fashion.

II. BACKGROUND AND THE ARBITRATION ORDERS

Ms. Sabti was involved in two automobile accidents. The first was on February 23, 1998, the second approximately five months later, on June 10, 1998. Ms. Sabti was paid income replacement benefits (IRBs) as a result of the first accident, until June 20, 1998. She has not been paid any benefits as a result of the second accident.

Ms. Sabti contested the termination of benefits relating to the first accident, applying for mediation and then arbitration. The pre-hearing letter makes note of the second accident but indicates that no application for arbitration relating to the second accident had been filed. The matter proceeded to a hearing without Ms. Sabti’s counsel filing an application with respect to the second accident.

Ms. Sabti’s claim was dismissed after a three-day hearing. The arbitrator concluded there was no reliable evidence of physical impairment attributable to injuries sustained in the first accident. He accepted that the accident had triggered depression and anxiety, but concluded that these psychological impairments were not disabling.

The arbitrator reserved on the question of expenses, and invited the parties to make written submissions. Ms. Sabti’s counsel failed to file submissions. The arbitrator awarded AXA half of its expenses on the grounds that Ms. Sabti’s counsel’s repeated tardiness had unnecessarily lengthened the proceeding.

III. ANALYSIS

(i) Procedural rulings by the arbitrator

Ms. Sabti states in an affidavit sworn in support of the appeal, that the arbitrator dismissed the interpreter, leaving her unable to understand many of the questions, and unable to make her answers understandable to the arbitrator. In the written submissions filed by counsel, the Appellant asserts; “...before speaking to the appellant, the arbitrator said he wished to dispense with the interpreter and the appellant’s counsel consented to the dismissal against the appellant’s wishes.”

Ms. Sabti’s assertion that the arbitrator unilaterally dismissed the interpreter is not borne out by a review of the transcript. Before swearing in the interpreter, the arbitrator indicated that he wished to speak to Ms. Sabti in English to asses her fluency. At that point Ms. Sabti’s counsel interjected to indicate that he had already canvassed the point with his client, and that the interpreter’s services were not necessary. Notwithstanding counsel’s comments, the arbitrator asked the interpreter to stand by for twenty minutes or so, at which point he told the interpreter that he was free to go. Neither party objected.

Prior to the release of the interpreter there was one exchange in which Ms. Sabti’s own counsel had difficulty making out an isolated word. Ms. Sabti told him that she was a “little bit stressed” and this was the reason she was having difficulty. She did not mention that she was having trouble understanding. It was certainly a little unusual for the arbitrator to ask to assess Ms. Sabti’s fluency, but given that Ms. Sabti’s counsel interjected before the arbitrator had even spoken to Ms. Sabti, it strikes me as unfair to suggest that the arbitrator deprived Ms. Sabti of a fair hearing by unilaterally dismissing the interpreter.

In fairness, after the interpreter was discharged, there were numerous instances when the arbitrator or one of the counsel asked Ms. Sabti to repeat an answer. In light of these exchanges, it is appropriate to go beyond asking if the dismissal was proper, and to ask if the absence of the interpreter deprived Ms. Sabti of a fair hearing.

At the beginning of the second day the arbitrator made the following observation:

Again, Ms. Sabti, just to highlight what I said a number of times yesterday, it’s important for me to understand what you’re saying. So bear that in mind when you’re answering questions - that I have to hear you.... And it’s not that you can’t speak English, it’s that you speak quite quickly. Sometimes you speak softly and sometimes you don’t wait until the person that’s asking the question... finishes. You start talking too soon and sometimes you speak with an accent.

Later in the exchange, Ms. Sabti complained that she has difficulty selecting the correct words. The arbitrator noted that some witnesses are better able to tell their story than others, and that it was up to her counsel to call appropriate witnesses. When this latter point is read in the context of the earlier part of the exchange, I am satisfied that the arbitrator was referring to the persuasive quality of her answers, not to any language difficulty. In addition, it is clear from the transcript that whenever the arbitrator had difficulty discerning what Ms. Sabti was saying, he gave her an opportunity to repeat the answer.

Ms. Sabti has not convinced me that the absence of an interpreter caused any substantial interference with her ability to make her answers understood.

Nor am I convinced that the absence of an interpreter substantially interfered with Ms. Sabti’s ability to understand the questions. There are very few instances when she complained that she did not understand the questioner. An inability to understand a few questions is commonplace in any hearing, even for witnesses whose mother tongue is English. Whenever Ms. Sabti indicated she did not understand the question, it was repeated or re-phrased. The answers that followed make it clear that she ultimately understood the question.

In conclusion, Ms. Sabti’s assertion that she was deprived of a fair hearing because of the absence of an interpreter, is not borne out by a review of the transcript.

The second procedural ruling that Ms. Sabti takes issue with relates to the second accident. Ms. Sabti submits that she was deprived of a fair hearing because the arbitrator refused to consider her request for benefits arising out of the second accident.

The manner in which this ground of appeal was presented also misstates the record. The failure to pursue the second accident was likely a mistake, but it cannot be laid at the feet of the arbitrator.

At the outset of the hearing the arbitrator noted that the pre-hearing letter referred to a second accident. He asked Ms. Sabti’s counsel if the second accident would be in issue. When

Ms. Sabti’s counsel indicated it would not be, the arbitrator put the potential problem squarely on the table by asking;

If I was to find that she was disabled and the disability was due to the second accident and no application was brought for arbitration as a result of that accident, what are the consequences?

Counsel responded later in the exchange;

there’s no evidence before you or likely to be before you to support a finding that she had recovered and the disability was a result of the second accident. There’s been no medical opinion about that, and it will not be the evidence of the Applicant. So I don’t think there will be any evidentiary support for that finding.

As the hearing unfolded over the course of the day, there was evidence to suggest that some of Ms. Sabti’s problems did not appear until after the second accident. During a summation at the end of the day the arbitrator again raised the issue, stating

Another factor that I find significant is that some of her complaints of disability arose as a result of the second accident. I’m still not sure what I’m supposed to do with that information because if I find that she is disabled and if I find that there is the second accident - that’s not the subject of this application. So even though the insurer is the same, I don’t know how I’m suppose to deal with that information.

At the start of the second day, the arbitrator raised the matter yet again. At this point, counsel for AXA joined the discussion for the first time, indicating that pursuant to company policy, the files relating to the two accidents had been kept separate. She advised that it was AXA’s position that the application for arbitration and the pre-hearing letter made it clear that the only issues at arbitration related to the first accident. She noted that at the pre-hearing conference, the date selected for the hearing was “put off” because Ms. Sabti’s counsel indicated he intended to bring an application for mediation relating to the second accident. However, counsel failed to do so.

When counsel for Ms. Sabti was asked if he agreed with these submissions he appeared to abandon his earlier position. He indicated for the first time, that he might be seeking benefits arising out of the second accident, but that it depended upon what Ms. Sabti’s family doctor had to say about the matter.

The arbitrator quite correctly noted that the issues for arbitration depended upon how the parties defined them in advance of the hearing, not on how the evidence unfolded during the course of the arbitration.

Section 281(2) of the Insurance Act states that disputes must be mediated before an application for arbitration is filed. In the absence of AXA’s agreement (and arguably even with their agreement) the arbitrator had no jurisdiction to deal with a demand for benefits related to the second accident in the absence of an application for mediation and then an application for arbitration. In my view, he was correct in holding that the hearing would proceed only on the issue of Ms. Sabti’s demand for benefits arising out of the first accident.

On appeal, Ms. Sabti submits that the arbitrator should have adjourned the hearing on his own motion, so that her counsel could apply for arbitration with respect to the second accident, and the two issues could then be heard together. I see no merit in this submission. Counsel had previously indicated his intention to apply for mediation (and presumably then arbitration) but had failed to follow through with his stated intention. Nor did he ask for an adjournment when the arbitrator ruled that he would only consider the demands related to the first accident. Whenever there are multiple accidents, the issues of entitlement are likely to overlap and as a general rule the cases should be heard together. In the face of the evidence, counsel certainly should have asked for an adjournment, but he did not. If the arbitrator had adjourned the hearing on his own motion, I think that AXA would have had good reason to complain. I do not believe the arbitrator can be faulted for proceeding as he did. The case was Ms. Sabti’s to frame. The arbitrator did everything he could to alert her counsel to the danger.

(ii) Failure of Ms. Sabti’s counsel to properly prepare and present the case

Ms. Sabti also claims that she was deprived of a fair hearing because of her counsel’s failure to properly prepare her in advance of the hearing, and because of his inept presentation of the case.

Ms. Sabti submitted that if her counsel’s ineptness had deprived her of a fair hearing, she was entitled to a new one. At my request, counsel provided written submissions and case law on this point after the hearing. Having reviewed the submissions and some further jurisprudence I shall refer to, I am not satisfied that this is a proper ground of appeal in this case.

Seeking a new trial on the grounds of inadequate representation is a relatively new ground of appeal. Most of the cases refer to the United States Supreme Court decision in Strickland v. Washington 104 S.Ct. 2052 (1994). Mr. Washington relied on the Sixth Amendment guarantee to counsel in criminal proceedings, arguing that the right to counsel was illusory if counsel was ineffective. The Supreme Court agreed. For our purposes, it is important to keep in mind, that the constitutional guarantee to counsel found in the Sixth Amendment is limited to criminal or penal proceedings.

A number of Canadian courts, including the Supreme Court, have followed Strickland and Washington in adopting the principle that a right to counsel means a right to effective representation. These courts have founded the right to counsel on either section 7 or 11 of The Canadian Charter of Rights and Freedoms.

Section 11 deals only with proceedings in criminal and penal matters. It has no application to our deliberations.

Section 7 is broader than section 11, and might form the basis for a right to counsel in non criminal or penal cases. It provides that everyone has the right to life liberty and security of person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. All of the cases I was provided with, that discuss the right to a new trial on the basis of inadequate representation, are criminal cases. However, I note that in New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.], [1993] 3 S.C.R. 46, the Supreme Court considered whether or not section 7 obliged the provincial government to provide a mother with state-funded counsel, to assist her in resisting the Crown’s application for custody of her children. Chief Justice Lamer, speaking for the Court, stated that section 7 was not limited to criminal or penal cases, and that it could be invoked where the state’s conduct deprives an individual of his or her right to life, liberty or the security of person.

In the case we are concerned with, the state has played no role in the dispute between the parties, other than to provide a forum for the resolution of the dispute. In my view, this limited involvement by the state does not have the effect of engaging a section 7 guarantee to counsel, which is designed to afford individuals a measure of protection against the actions of the government or its agents who are actively seeking to interfere with their individual rights.

In addition, I note that in New Brunswick v. G.(J.) [J.G.], Chief Justice Lamer referred to his earlier decision in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, in which he indicated at pages 1170 and 1171, that section 7 was not concerned with the protection of economic rights.

There is an inherent tension between the right to a new trial and the right and need for finality. Where the State is under an obligation to ensure access to counsel, and at the same time is a party to the litigation, it may be appropriate that the desire for finality should take second place. In contrast, it is more difficult to rationalize imposing upon a private litigant, who has no part to play in ensuring access to counsel, the time expense and uncertainty involved in granting a new trial, and one would expect the relief to be granted more sparingly.

The right to an alternate remedy also strikes me as a relevant factor. In a dispute between two private parties over monetary issues, an aggrieved party can sue his or her counsel. In contrast, obtaining a judgement against counsel is cold comfort in the face of a criminal conviction, the withdrawal of one’s children, or some other interference with the right to life, liberty or the security of person.

In conclusion, I do not believe there is any basis in this instance to assert a claim for a new hearing on the grounds of inadequate representation.

(iii) Bias

Ms. Sabti claims that the arbitrator became so angry with her counsel’s conduct that he was unable to objectively judge her case. To put this claim in context, a brief review of some of counsel’s conduct is necessary.

Ms. Sabti’s counsel failed to appear at the commencement of the hearing without any prior warning to the Commission. Nor was Ms. Sabti present. When counsel finally appeared he explained that he was late because of another engagement in a courtroom downtown. He indicated that his client was not in attendance because he had told her to remain at home until he called her. He then begged a further indulgence because he had scheduled two arbitration hearings to start at the same time, and he was in the midst of trying to settle the other case. The hearing did not commence until after the lunch hour. The arbitrator was understandably upset at counsel’s conduct, and quite properly made his displeasure known.

It is also apparent that the arbitrator was frustrated by the way Ms. Sabti’s counsel presented the case. Most notably, he was frustrated by the fractured manner in which Ms. Sabti’s employment history was presented. At one point he suggested that counsel should have prepared a written summary that could have been reviewed with the witness, and then introduced as an exhibit.

At the start of the second day, counsel indicated that he had to attend a pre-trial conference at a courthouse downtown, and asked for an early and extended lunch break. When counsel failed to appear after lunch, the arbitrator asked AXA’s counsel, who was in the midst of cross-examining Ms. Sabti, “..I’m wondering if... you want to proceed or what would you like to do now?” She indicated that if counsel did not appear within five minutes, she wanted to continue in his absence. The arbitrator then asked Ms. Sabti if she wanted to proceed or to wait for her counsel. During the course of a rather protracted discussion, he warned her that if she asked to wait for her counsel to arrive, that he would have to take the delay into account when considering the question of expenses and that it was possible that he would order her to compensate AXA for the wasted time.

On appeal, Ms. Sabti’s counsel argued that this exchange marked the point where the arbitrator began to associate Ms. Sabti with her counsel. He argued that the arbitrator was so angry that he was no longer a dispassionate observer, and was incapable of viewing the case objectively.

A charge of bias is a very serious matter. Arbitrators on occasion become frustrated and even angry with the conduct of a party, a witness, or counsel. Some arbitrators display their displeasure more openly, and some less so. But there is a world of difference between being angry or frustrated and being unable to discharge an obligation to render a decision in an objective and non-partisan manner.

Reading the transcript, it is plain that Ms. Sabti felt anxious and was uncertain about what she should do. Ultimately, she asked the arbitrator to wait for 15 more minutes to see if her counsel appeared. He did, and the cross-examination did not proceed in his absence, and hence there was no prejudice to Ms. Sabti.

I can sympathise with Ms. Sabti’s view that she should not be responsible for her counsel’s misconduct. However, unlike the Civil Rules of Procedure, the Commission’s rules do not provide for the imposition of expenses payable by a solicitor. The Expense Regulation includes delays as one of the factors to be included in the assessment of arbitration expenses, and accordingly it was not improper for the arbitrator to warn Ms. Sabti that she might face such a consequence. I do not see the exchange as evidence of bias.

Ms. Sabti also pointed to a number of interjections by the arbitrator, suggesting that they were further evidence of bias. On one occasion, he admonished Ms. Sabti to stop arguing with counsel and to answer the question. On two other occasions, he suggested to her counsel that discrepancies he was exploring with AXA’s witnesses could simply be left to final submissions.

Ms. Sabti’s submission ignores the fact that the arbitrator also interjected during the opposing counsel’s examinations and cross-examinations. It is apparent to me that the arbitrator’s main concern was to ensure that the delays did not jeopardize the chances of finishing the hearing in the allotted time. It is possible to question some of the interjections, but I do not see them as evidence of bias.

Likewise, Ms. Sabti takes issue with the extent of the questions posed by the arbitrator himself, suggesting that they are further evidence of bias.

An arbitrator is well within his rights to ask questions if he feels that crucial points have not been covered, or he has been left confused by the evidence. In addition, Ms. Sabti’s submission again ignores the fact that the arbitrator questioned most of the witnesses, including those called by AXA. I do not see the arbitrator’s conduct as indicative of bias.

Ms. Sabti also argued that the arbitrator’s rejection of her evidence, and unfavourable rulings regarding her credibility, were evidence of his bias. She suggests that he found inconsistencies where none existed because he had closed his mind in advance of hearing the evidence.

The arbitrator commented principally upon the following inconsistencies:

• In Ms. Sabti’s testimony concerning her complaints and limitations;
• in the histories she provided to doctors;
• in her presentation to doctors, and
• related to her prior work history.

Again, it is possible to point to isolated errors in the arbitrator’s findings, but his review of both the viva voce evidence and the documents in connection to his findings of inconsistencies, reveals that he had not closed his mind, and that he properly discharged his obligation to review the evidence and then make findings of fact.

Finally, Ms. Sabti argued that the arbitrator’s imposition of an award of expenses in favour of AXA is evidence of his bias in favour of the Insurer.

As I noted above, the Expense Regulation requires the arbitrator to consider conduct that prolongs a hearing. The arbitrator found that Ms. Sabti’s counsel’s conduct tended to lengthen the hearing, and accordingly he awarded AXA half of its expenses. No issue was taken on appeal with the arbitrator’s finding, which in any event was well founded. In the circumstances, the award of expenses in favour of AXA was quite proper, and is not indicative of bias.

Finally, I have considered the matter from a global perspective. Having read the transcripts in their entirety, and the decision on the merits and on expenses, I do not find evidence of bias.

IV. EXPENSES

Each party shall bear their own expenses.

February 5, 2001

Stewart M. McMahon Director’s Delegate

Date