Semik Tounian v. Citadel General Assurance Company, 2001 ONFSCDRS 139

Neutral Citation: 2001 ONFSCDRS 139

FSCO A01-000076

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SEMIK TOUNIAN

Applicant

and

CITADEL GENERAL ASSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Lawrence Blackman

Heard:

May 23, July 13 and September 21, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Roman Volfson for Mr. Tounian

Claudia Storto (May 23rd), Jonathan Schrieder (July 13th) and Lauren Bloom (September 21, 2001) for Citadel General Assurance Company

Issues:

The Applicant, Semik Tounian, submits that he was injured in a motor vehicle accident on August 17, 1998. He applied to Citadel General Assurance Company ("the Citadel") for statutory accident benefits under the Schedule¹ regarding payment of a medical account incurred with Universal Injury Rehabilitation Centre Inc. ("Universal"). The Citadel denied the Applicant's claim, asserting that Mr. Tounian was neither injured nor involved in this accident. The parties were unable to resolve their dispute through mediation. Mr. Tounian, therefore, applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").

May 23, 2001 Pre-Hearing Discussion

The initial pre-hearing discussion in this matter was scheduled to be held in person at FSCO's offices in Toronto on May 23, 2001, at 2:00 p.m. A February 21, 2001 Notice of Pre-Hearing Discussion was sent to the parties and their representatives; in the case of Mr. Tounian and his representative, Mr. Volfson (who is associated with the Applicant's care provider, Universal), to the addresses set out in the Application for Arbitration.

On May 23, 2001, Ms. Janet McCollin attended the scheduled pre-hearing discussion on behalf of the Citadel, accompanied by counsel, Ms. Storto. Neither the Applicant nor Mr. Volfson attended. I was eventually able to reach Mr. Volfson by telephone at approximately 2:30 p.m.

Mr. Volfson stated that he had not received the February 21, 2000 Notice of Pre-Hearing Discussion. The Case Administrator, however, indicated that she had booked this pre-hearing date personally with Mr. Volfson. Mr. Tounian could not be reached at the telephone number provided to FSCO.

Due to the absence of Mr. Tounian, the pre-hearing discussion was largely limited to the bare procedural essentials. In my ensuing pre-hearing May 28, 2001 letter, I, therefore, stated that:

I feel that it is important that a face-to-face pre-hearing discussion, which includes both principals attending in person, be held... Should a party not attend, one consequence may be an award or a denial of expenses.

[emphasis in the original]

In my pre-hearing letter, I set out FSCO's understanding as to Mr. Tounian's address and telephone number and indicated that it was Mr. Volfson's responsibility to ensure that these were indeed correct.

I also stated that:

I specifically note, as set out below, that in determining the expenses of the arbitration proceeding, an arbitrator may consider the conduct of the parties, including any action that unnecessarily lengthens the proceedings or is manifestly unfounded, vexatious or an abuse of process.

[emphasis in the original]

The pre-hearing letter subsequently included a standard section entitled "Recovery of Legal Expenses," which advises that "[a]s of November 1, 1996, the arbitrator may award either party expenses of the arbitration proceeding as prescribed by regulation." The letter continued:

In a small number of cases, arbitrators have found the arbitration frivolous, vexatious, or an abuse of process. In such circumstances, an applicant may be ordered to pay up to three thousand dollars ($3,000) to the insurer, being the cost of the assessment levied against an insurer required to participate in the arbitration.

July 13, 2001 Resumption of Pre-Hearing Discussion

A resumption of the pre-hearing was scheduled to be held at FSCO on July 13, 2001, at 2:00 p.m. A Notice of Resumption of Pre-Hearing Discussion dated June 5, 2001 was sent to the parties and their respective representatives. Ms. McCollin again attended on behalf of the Citadel, represented by counsel, Mr. Jonathan Schrieder. Mr. Volfson also attended. Mr. Tounian, however, did not attend the resumption. Mr. Volfson stated that Mr. Tounian was not available and could not be reached by telephone. Mr. Volfson provided no explanation as to why his client was not present, other than that he was a very busy businessman. Mr. Volfson speculated that Mr. Tounian might be out of the country. FSCO had not received any prior notice that Mr. Tounian would not be able to participate in the pre-hearing. The Insurer submits that Mr. Tounian was not involved in the August 17, 1998 motor vehicle accident. It relies on the evidence of the investigating officer, the third party driver and an independent witness. The Insurer produced a copy of a letter it maintains it sent to Mr. Volfson, which included copies of the documentary evidence upon which it is relying. Mr. Volfson stated that he had not received this letter. Mr. Volfson was given an opportunity at the pre-hearing to review this documentation.

A copy of this letter from the Citadel, without the enclosures, had been previously received by FSCO. The letter states that "we expect Mr. Tounian to be present at the pre-hearing." The Insurer submitted that Mr. Tounian should be ordered to pay forthwith its expenses fixed at between $500 to $750, for two hours of preparation and two hours of attendance at the July 13, 2001 pre-hearing resumption, at the legal aid rate.

Mr. Volfson argued against any monetary penalty. He submitted that it was sufficient that he was present at the pre-hearing resumption, as he had full authority to deal with this matter.

Rule 33.1 of the Dispute Resolution Practice Code (Third Edition, April 15, 1997) (the "1997 Code") sets out as a function of the pre-hearing discussion assisting the parties to prepare for the arbitration hearing. Succinctly, the pre-hearing process endeavours to ensure that both parties proceed to the hearing of one mind as to the issues which are to be adjudicated and the manner in which those issues will be adjudicated, and further seeks to avoid, to the extent reasonably possible, the possibility of surprise and unfairness at the arbitration hearing. The pre-hearing conference also importantly serves as an opportunity for the parties to narrow or to resolve the issues in dispute.

The Notices of Pre-Hearing sent to the parties reiterate the specific purposes of the pre-hearing discussion, as set out in Rule 33.1.

The Notices also stated that:

The arbitration pre-hearing is designed for the direct involvement of both parties. If clients cannot attend the pre-hearing in person, they are expected to be available and to participate by telephone conference call.

This echoes Practice Note 6 of the 1997 Code which states that:

Clients who cannot participate in person are expected to be available to participate in the pre-hearing discussion by phone.

[emphasis in the original]

Practice Note 3 (which deals with "Authority to Bind") further states that:

It is essential for people claiming benefits to be at the mediation, neutral evaluation or arbitration proceeding to hear and discuss settlement offers and give instructions to any representative.

These provisions were repeated in the corresponding Practice Notes of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) (the "2001 Code" does not apply to arbitration proceedings in which a pre-hearing was held prior to May 31, 2001, as in this case, unless the parties agree or the arbitrator so orders).

These pre-hearing discussions were frustrated by the absence of Mr. Tounian. His absence hindered obtaining agreements as to facts in order to focus on those issues truly in dispute and and thus shorten the hearing, prevented the exchange of necessary and pertinent information, and negated the possibility of meaningful settlement discussions. In addition to frustrating the primary procedural and settlement aspects of the pre-hearing discussion, his absence also thwarted the educative aspect of the meeting. The pre-hearing discussion is an important opportunity for an arbitrator to explain the arbitration process, specifically to those new to this system, to note the possible consequences to both sides of proceeding to a hearing, and to provide an informal, neutral, non-binding evaluation of the parties' respective positions on the issues in dispute.

It is almost invariably crucial to a productive pre-hearing discussion that the principals participate. In the case of insurers, this means a representative (or representatives) with the power to make final binding decisions regarding any procedural issue, settlement proposal or other matter that one can reasonably anticipate might arise during the course of the pre-hearing discussion, including the authority to change the company's position in response to evidence or argument advanced at the meeting. Binding authority does not exist where one merely has authority to say "no." The participation of the principals themselves is required to fully take advantage of the multi-faceted procedural, discovery, settlement, evaluative and educative aspects of the pre-hearing discussion.

This case was no exception to the general rule. Both Mr. Tounian and his representative were twice put on written notice that Mr. Tounian's participation was required at the pre-hearing discussion. The pre-hearing was rescheduled specifically for Mr. Tounian to attend. This was confirmed in the May 28, 2001 pre-hearing letter which sets out the possible consequences of his non-attendance. Notwithstanding this communication, the Applicant did not appear at the pre-hearing; nor was any reason, other than pure speculation, given by Mr. Volfson for his principal's failure to attend.

Mr. Volfson's statement that he had to get instructions from Mr. Tounian before responding to the Insurer's position belied his assertion of full authority. Binding authority means never having to say, regarding any procedural or settlement issue, "I'm sorry" but "I'll have to check that with my client" (see Practice Note 3 of the 2001 Code).

Subsection 282(11.1) of the Insurance Act provides an arbitrator with the authority to make an interim award of expenses at any time during an arbitration proceeding, subject to such terms and conditions as may be established by the arbitrator. In awarding or denying expenses, one consideration is the conduct of either party 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.

In this case, the end result of the Applicant's failure to attend the first pre-hearing was that the discussion was extremely hindered in what could be accomplished. The result of the second non-attendance was a total waste for the Insurer of preparation time and the two hours allotted for the meeting.

Considering the Applicant's lack of participation in the initial two pre-hearings without any excuse, reasonable or otherwise, and further considering my express warning in my pre-hearing letter of May 28, 2001 as to the possible consequence of non-attendance, I ordered in my subsequent pre-hearing letter dated July 20, 2001, that:

1. In respect of the pre-hearing discussion held May 23, 2001, Mr. Tounian shall pay the Citadel General Insurance Company the sum of $250, inclusive of G.S.T., payable in the cause, that is, if the Citadel is ultimately successful in this proceeding.

2. In respect of the pre-hearing discussion held July 13, 2001, Mr. Tounian shall pay the Citadel General Assurance Company the sum of $250, inclusive of G.S.T., payable forthwith, in any event of the cause, that is, whether or not Mr. Tounian is ultimately successful in this proceeding.

September 21, 2001 Resumption of Pre-Hearing Discussion

A resumption of the pre-hearing discussion in this case was arranged by FSCO, in consultation with the representatives of both parties, for 9:30 a.m. on September 21, 2001 by telephone conference call.

In this regard, a confirming Notice of Resumption of Pre-Hearing Discussion dated September 13, 2001 was sent to the Applicant, his representative, Mr. Volfson, Ms. Gail McCathie (ADR Co-ordinator for the Citadel) and the Citadel's counsel, Ms. Storto.

The resumption was arranged to deal with two issues, namely:

1. Determining whether Mr. Volfson may be permitted to withdraw as Mr. Tounian's representative; and,

2. Determining whether the issue of repayment by Mr. Tounian of $1,900, together with interest, should be added to this arbitration proceeding.

On September 21, 2001, I endeavoured to reach Mr. Volfson twice by telephone between 9:30 and 9:40 a.m. at the number he provided FSCO. I left two messages for Mr. Volfson, indicating that the resumption would proceed if I did not hear from him by 9:45 a.m.

I also tried to reach Mr. Tounian by telephone for the pre-hearing resumption. The telephone number provided by Mr. Volfson for the Applicant appears to be a fax number. Directory assistance provided me with a telephone number for a Mr. Tounian in the applicable municipality. I left two messages at this number for Mr. Tounian to contact me at my direct telephone number. To date, I have not received any response from Mr. Tounian.

Not hearing from either Mr. Volfson or Mr. Tounian, I proceeded with the resumption.

Ms. Lauren Bloom, legal counsel, represented the Citadel at the pre-hearing resumption. There has been a history of inconsistent or non participation in this proceeding by both the Applicant and his representative.

Neither attended at the first pre-hearing discussion arranged in this matter for May 23, 2001 at 2:00 p.m. at FSCO, although, as set out above, I was eventually able to reach Mr. Volfson by telephone for this discussion.

Despite my specific requirement that the Applicant himself participate at the second pre-hearing discussion scheduled for July 13, 2001, Mr. Tounian did not attend the pre-hearing resumption, nor was he available by telephone. Mr. Volfson did not provide any cogent reason why Mr. Tounian was not present, nor did he persuade me that any significant effort had been exerted by himself to ensure Mr. Tounian's attendance at the July 13, 2001 resumption.

In my May 28, 2001 pre-hearing letter, I had asked Mr. Volfson to ensure that FSCO had the correct address and telephone number for Mr. Tounian. The case administrator had requested, by letter dated June 19, 2001, that Mr. Volfson notify FSCO of Mr. Tounian's address. I am advised that the Notices of Pre-hearing and Hearing sent to Mr. Tounian were returned to FSCO. I am not aware that my prior pre-hearing letters sent to Mr. Tounian (specifically that of May 28, 2001 which sets out the hearing dates) were returned to FSCO. I see no indication in the file that Mr. Volfson has confirmed with FSCO the correct address or telephone number for Mr. Tounian.

On August 17, 2001, FSCO received a copy of a letter from Citadel's counsel, Ms. Storto, dated that same day, indicating that Mr. Volfson was no longer representing Mr. Tounian. FSCO did not receive any correspondence in this regard from Mr. Volfson, either confirming that Mr. Tounian no longer wished to have Mr. Volfson represent him or that Mr. Volfson wished to be removed as his representative.

On September 12, 2001, I resumed the pre-hearing discussion by telephone conference with Mr. Volfson and Ms. Storto to clarify Mr. Volfson's representation. Mr. Volfson indicated that he no longer wished to represent Mr. Tounian. Ms. Storto indicated that she wished to have a repayment issue added to this proceeding. I asked Ms. Storto to provide written confirmation, prior to the further resumption arranged with both representatives, that the repayment issue had been mediated. Ms. Storto complied with my request. I asked Mr. Volfson to write Mr. Tounian, as required by the 1997 Code, indicating that he wished to withdraw as representative, and provide FSCO with a copy of same prior to the resumption. Mr. Volfson did not provide the requested documentation prior to the scheduled pre-hearing.

At 11:15 a.m., on September 21, 2001, Mr. Volfson contacted me by telephone. He advised that he would be sending me documentation regarding his request to be removed as representative. At 4:00 p.m. FSCO received a fax from Mr. Volfson, namely a letter dated September 14, 2001 to Mr. Tounian and a letter to myself dated September 21, 2001. The former indicates that Mr. Volfson is no longer representing Mr. Tounian, not that he wishes to withdraw as the Applicant's representative. The latter letter sets out the nature of and the reasons for Mr. Volfson's motion to be removed as Mr. Tounian's representative. I am ordering the latter letter sealed, as I am concerned of the potentially prejudicial nature of portions of the letter.

I note, however, that Mr. Volfson states in his September 21, 2001 letter that he wishes to withdraw the Application for Arbitration. Given the lack of any notice of such a motion, to the Applicant or the Insurer, I decline to deal with this request.

Removal of Representative

Rule 9.5 of the Code states that:

A representative who wishes to withdraw from an adjudicative proceeding shall notify the Commission and the parties, in writing. Where the party represented consents to the withdrawal, the Registrar shall permit the withdrawal. Otherwise, an adjudicator may permit the representative to withdraw subject to such terms as the adjudicator considers appropriate. I have not been provided with Mr. Tounian's consent to Mr. Volfson's withdrawal.

Nor have I been provided with any correspondence from Mr. Volfson to his client advising that he wishes to withdraw as Mr. Tounian's representative. Rather, Mr. Volfson provides a letter he alleges was sent to Mr. Tounian in which he states as a fact that he no longer represents the Applicant. The 1997 Code does not allow representatives to, in effect, "fire" their principals, once they are in the arbitration process. An adjudicative order is required, absent consent.

In addition, I do not have any evidence that Mr. Volfson has communicated to Mr. Tounian the reason he wishes to be removed as representative and the possible consequences to Mr. Tounian of proceeding in this matter.

On further review of this matter, despite the continued representations by Mr. Volfson that he was retained by Mr. Tounian and has full authority to deal with this proceeding, I have significant concerns as to Mr. Volfson's retainer in this matter.

I note that the filed Authorization and Direction dated December 26, 2000 to Mr. Volfson and Universal is not witnessed and the signature line contains an illegible signature without any indication as to whose signature is provided. I note that the Application for Arbitration is signed by Mr. Volfson, not by Mr. Tounian. I note that Mr. Tounian has failed to attend at or participate in all three pre-hearing discussions arranged in this matter as well as the mediation held September 10, 2001. I note that the only confirmed substantive issue in dispute in this proceeding until present has been Universal's outstanding account of $2,385. I am advised by the Citadel that the $1,900 for which they are seeking repayment was paid to Universal, not to the Applicant.

I am uncertain as to who is the driving force in this matter and I am concerned with the appearance that while this Application, if successful, would benefit Universal at least as much as Mr. Tounian, it is Mr. Tounian who would solely bear the entire risk of this proceeding should Mr. Volfson be allowed to withdraw as his representative.

Mr. Volfson states in his September 21, 2001 letter that "[f]or a significant period of time we are unable to establish any contact with Mr. Tounian and are unaware of his present situation." However, the impression that Mr. Volfson left with me at the pre-hearing resumption of July 13, 2001 was that he was in continuing discussion with Mr. Tounian.

The case administrator wrote Mr. Volfson on June 19, 2001, that correspondence addressed to Mr. Tounian had been returned to FSCO. I am concerned as to what documentation forwarded to Mr. Tounian has indeed reached the Applicant.

Considering the failure of Mr. Volfson to comply with Rule 9.5 of the Code, his inconsistent adherence in this proceeding to certain basic requirements of the arbitration process, the gaps in evidence as to his initial retainer and the question whether Mr. Tounian has been advised by Mr. Volfson as to the possible consequences to the Applicant personally of proceeding in this matter, I am not satisfied that Mr. Volfson should be allowed to be removed as Mr. Tounian's representative.

Further, I now have a concern as to whether FSCO indeed has jurisdiction to deal with this matter. Under paragraph 281(1)(b) of the Insurance Act, only an insured person may refer the issues in dispute to an arbitrator at FSCO. My concern is whether Mr. Tounian has indeed referred this matter to arbitration or has given authority to Universal to do so as his agent. I find that it is appropriate for this to be dealt with at the hearing scheduled to start in this matter on Tuesday, October 9, 2001 at 10:00 a.m., so that evidence may be received. It may be that the other issues in dispute might have to be dealt with at a later date by a different arbitrator.

I further hereby order, that Mr. Volfson shall provide the hearing arbitrator at the commencement of the hearing in this matter on October 9, 2001 with:

1. confirmation of the correct present address and telephone number of Mr. Tounian, or his efforts in this regard;

2. proof of either providing Mr. Tounian with or his efforts to provide Mr. Tounian with timely notice:

(a) of Mr. Volfson's wish to withdraw as Mr. Tounian's representative;

(b) of the reasons for Mr. Volfson's wish to withdraw;

(c) of the arbitration hearing to be held on October 9 and 11, 2001, commencing at 10:00 a.m. at the offices of the Financial Services Commission of Ontario, 5160 Yonge Street, 14^th Floor, North York, Ontario;

(d) that if Mr. Tounian does not attend at the hearing, the hearing arbitrator may dispose of this proceeding in his absence; and,

(e) of the possible consequences to Mr. Tounian of this matter proceeding, including, but not limited to, Mr. Tounian having to:

– repay to the Citadel the sum of $1,900, plus interest,

– pay the Insurer's $3,000 assessment, and,

– pay the Citadel's expenses of this arbitration proceeding, including the sum of $250 ordered on May 28, 2001 to be paid forthwith regarding the Applicant's lack of attendance at the second pre-hearing discussion.

3. evidence of his initial retainer in this matter, including, but not limited to proof that Mr. Tounian signed the Authorization and Direction dated December 26, 2000 and any discussions accompanying that endorsement.

Repayment

The Insurer seeks to add as an issue to this arbitration proceeding the issue of repayment of the sum of $1,900 for fifteen sessions of physiotherapy, together with interest.

Citadel provided me with the Report of Mediator issued September 10, 2001, in which Mr. Tounian is noted as the insured person and Mr. Volfson is noted as his representative. The Insurer advises that the $1,900 account pertains to services provided by Universal.

Mr. Volfson did not provide his position regarding the Insurer's request to add this issue.

The leading case on adding issues is that of Carby and Co-operators General Insurance Company (OIC A-950220, January 12, 1996). It sets out the following criteria to be considered before adding an issue, which I will deal with separately:

(1) Has the insurer's issue been mediated?

I find that the Citadel's issue was mediated on September 10, 2001.

(2) Does the issue involve a different benefit category from that raised by the Applicant?

I find that the proposed repayment issue and the existing arbitration issue of entitlement to payment of Universal's account both deal with the same medical benefit issue.

(3) Is the issue reasonably incidental to the issues raised by the Applicant?

I am advised that the repayment issue pertains to treatment received at the same clinic which is the subject of the present entitlement issue. The Citadel raises the question of whether Mr. Tounian was impaired as a result of, or indeed involved at all in the accident in question. This question is as pertinent to the repayment issue as to the initial entitlement issue. I find that the repayment issue is reasonably incidental to the issues raised by the Applicant.

(4) Will the inclusion of the issue unduly expand the scope of the inquiry and essentially deprive the Applicant of control of the proceeding?

I do not find that the inclusion of the repayment issue will unduly expand the scope of the inquiry, specifically because the question of whether Mr. Tounian was in an accident is already in issue. I fail to see how the addition of the repayment issue will involve any additional technical or expert evidence such as to deprive the Applicant of control of this proceeding.

(5) Will the inclusion of the issue benefit both parties by avoiding multiple proceedings?

I find that to require a separate hearing for the repayment issue would result in unnecessary duplication of effort and expense and raise the possibility of inconsistent results.

Accordingly, I order that the question of repayment be added to the issues in dispute, the entire proceeding being dependent upon FSCO having jurisdiction.

Issues at the Arbitration Hearing

The following issues are hereby ordered added to this arbitration proceeding:

1. Does FSCO have jurisdiction to hear this matter?

2. Is the Citadel entitled to repayment from Mr. Tounian of the sum of $1,900 for medical treatment, pursuant to section 47 of the Schedule, together with interest in accordance with subsection 47(5)?

To ensure that Mr. Tounian has proper notice of this hearing, I am asking the case administrator to forward the following documents by ordinary and registered mail to Mr. Tounian at the last address that FSCO has for him:

1. The Notice of Hearing, dated June 5, 2001; and,

2. The Pre-hearing letters dated May 28, July 20 and September 27, 2001.

September 26, 2001

Lawrence Blackman Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 139

FSCO A01-000076

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SEMIK TOUNIAN

Applicant

and

CITADEL GENERAL ASSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. In respect of the pre-hearing discussion held May 23, 2001, Mr. Tounian shall pay the Citadel General Insurance Company the sum of $250, inclusive of G.S.T., payable in the cause, that is, if the Citadel is ultimately successful in this proceeding.

2. In respect of the pre-hearing discussion held July 13, 2001, Mr. Tounian shall pay the Citadel General Assurance Company the sum of $250, inclusive of G.S.T., payable forthwith, in any event of the cause, that is, whether or not Mr. Tounian is ultimately successful in this proceeding.

3. Mr. Volfson's letter of September 21, 2001 shall be sealed.

4. Mr. Volfson may not withdraw as Mr. Tounian's representative in this arbitration proceeding.

5. Mr. Volfson shall provide the hearing arbitrator at the commencement of the hearing in this matter on October 9, 2001 with:

(1) confirmation of the correct present address and telephone number of Mr. Tounian, or his efforts in this regard;

(2) proof of either providing Mr. Tounian with or his efforts to provide Mr. Tounian with timely notice:

(a) of Mr. Volfson's wish to withdraw as Mr. Tounian's representative;

(b) of the reasons for Mr. Volfson's wish to withdraw;

(c) of the arbitration hearing to be held on October 9 and 11, 2001, commencing at 10:00 a.m. at the offices of the Financial Services Commission of Ontario, 5160 Yonge Steet, 14^th Floor, North York, Ontario;

(d) that if Mr. Tounian does not attend at the hearing, the hearing arbitrator may dispose of this case in his absence; and,

(e) of the possible consequences to Mr. Tounian of this matter proceeding, including, but not limited to, Mr. Tounian having to:

– repay to the Citadel the sum of $1,900, plus interest,

– pay the Insurer's $3,000 assessment, and,

– pay the Citadel's expenses of this arbitration proceeding, including the sum of $250 ordered on May 28, 2001 to be paid forthwith regarding the Applicant's lack of attendance at the second pre-hearing discussion.

(3) evidence of his initial retainer in this matter, including, but not limited to:

(a) proof that Mr. Tounian signed the Authorization and Direction dated December 26, 2000 and any discussions accompanying that endorsement.

6. The following issues shall be added to this arbitration proceeding:

(a) Does FSCO have jurisdiction to hear this matter?

(b) Is the Citadel entitled to repayment from Mr. Tounian of the sum of $1,900 for medical treatment, pursuant to section 47 of the Schedule, together with interest in accordance with subsection 47(5)?

September 26, 2001

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.