Financial Services Commission
Commission des services financiers de l’Ontario
Neutral Citation: 2002 ONFSCDRS 116
Appeal P01-00036
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JOSE DOCOUTE
Appellant
and
ZURICH INSURANCE COMPANY
Respondent
Before:
David R. Draper, Director of Arbitrations
Representatives:
Roland Spiegel (for Jose Docoute)
Alex J. Feldbloom (for Zurich Insurance Company)
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 September 19, 2001, is confirmed.
Jose Docoute shall pay Zurich Insurance Company's appeal expenses, fixed at $1,500.
Jose Docoute shall pay Zurich Insurance Company an assessment under s. 282(11.2), fixed at $500.
July 29, 2002
David R. Draper Director of Arbitrations
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Jose Docoute1 appeals from an arbitration order dated September 19, 2001, dismissing his claims for accident benefits and requiring him to pay Zurich Insurance Company ("Zurich") $500 for arbitration expenses and $500 as an assessment under s. 282(11) of the Insurance Act.
II. BACKGROUND
Mr. Docoute was involved in an automobile accident on August 20, 1997. According to the arbitrator, he received a brief period of treatment and was discharged in November 1997. Zurich paid some medical and rehabilitation benefits under the SABS-1996,2 but refused to pay weekly non-earner benefits on the basis that Mr. Docoute did not suffer "a complete inability to carry on a normal life" — a decision he has not disputed.
In February 1999, Mr. Docoute was assessed at DEAHY Medical Assessments Inc. ("DEAHY"). As part of the arrangements, he signed an agreement authorizing DEAHY to bill his insurer directly. DEAHY's invoice, dated March 12, 1999, sets out the following fees:
Functional abilities evaluation
$1,150.00
Medical assessment
$1,250.00
GST
$ 168.00
TOTAL
$2,568.00
When Zurich refused to pay this claim, Mr. Docoute applied for mediation, represented by Mr. Roland Spiegel, a non-lawyer. The Report of Mediator, dated September 2, 1999, states that the dispute was not resolved. The FSCO file indicates that the mediator sent the normal covering letter to Mr. Docoute and Mr. Spiegel, advising that if they wanted to pursue the claim, they could apply for arbitration (privately or at FSCO), start a court action, or apply for neutral evaluation.
In January 2000, Mr. Docoute applied for arbitration at FSCO, represented by Mr. Spiegel. His claim was limited to the cost of the DEAHY assessments, plus interest. Zurich responded, submitting that it was not a reasonable expense within the meaning of s. 24 of the SABS-1996. Beyond that, Zurich claimed the application was an abuse of process and asked for its expenses.
To this point, the process was straightforward. However, on July 30, 2001, two weeks before the hearing was to start, Mr. Spiegel filed a nine-page document entitled, "Application for a Motion." This document raised allegations of bias and asked for, among other remedies, a stay or adjournment of the proceedings. It relied heavily on my decision to admit evidence in Persofsky and Liberty Mutual Insurance Company, (FSCO P00-00041, July 3, 2001), an ongoing case in which the insurer is challenging an arbitration order based on institutional bias. It argues that in a system where only insured persons can choose arbitration, there is 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.
On August 9, 2001, Mr. Spiegel faxed a second document, "Addendum to Application for a Motion." Zurich did not file anything in response to either of these documents.
At the start of the arbitration hearing on August 13, 2001, the arbitrator expressed concern about the parties' failure to comply with the procedure for motions set out in the Dispute Resolution Practice Code. However, as neither party objected, she agreed to proceed. Mr. Spiegel presented oral submissions in support of the motion. Counsel for Zurich declined to make submissions, stating that his client was ready to deal with Mr. Docoute's claim for accident benefits.
The arbitrator issued oral rulings, refusing to stay or adjourn the hearing, and dismissing the motion. She provided brief reasons and indicated that full written reasons would follow. According to the arbitrator, Mr. Spiegel then stood and asserted: "I declare you biased," asking that the hearing be adjourned to allow him to apply to the Director of Arbitrations under s. 282(12) of the Insurance Act for a determination of bias. The arbitrator denied this request and ordered Mr. Spiegel to proceed. He refused. The arbitrator called a recess to allow him to reconsider his position. Following the recess, Mr. Spiegel chose not to call any evidence. After hearing from counsel for Zurich, the arbitrator dismissed Mr. Docoute's claim.
Unfortunately, Mr. Spiegel's conduct has been the centerpiece of this litigation. Like the arbitrator, I had great difficulty following his arguments, and, as set out below, experienced the same problems described by Director's Delegate Makepeace in Dhawan and State Farm Mutual Automobile Insurance Company, (FSCO P01-00025, February 1, 2002): incoherent, disorganized and repetitive submissions; a failure to understand or comply with procedural rules; and, an unwillingness to accept rulings or comply with orders.
My involvement in this matter started after the arbitration hearing, but before the arbitrator released her written reasons. On August 29, 2001, I received a fax from Mr. Spiegel that included a 15-page "Application to the Director of Arbitrations." I treated this document as a bias application under s. 282(12) of the Insurance Act, but dismissed it. In a letter dated August 31, 2001, I explained my reasons as follows:
My fundamental difficulty with this application is that while Mr. Docouto might have initially applied to the Director under s.282(12), that is not what he did. He chose to advance his institutional bias argument before the arbitrator. Having received a negative decision, he cannot now claim that she lacked the authority to decide the very issue he put before her. In addition, it is far from obvious that I have the authority under s.282(11) to grant the remedies Mr. Docouto seeks. He wants a hearing before a "proper body" in accordance with the Arbitrations Act. However, s.282(16) of the Insurance Act makes it clear that the Arbitrations Act has no application to arbitrations at the Commission. My only authority under s.282(12) is to "appoint a new arbitrator." According to s.8(2) of the Insurance Act, I can only appoint arbitrators from the roster of arbitrators chosen by the Superintendent.
This leaves the question of the arbitrator's pending decision on the substantive issues. Mr. Docouto asks that it be stayed pending resolution of the institutional bias issue. Even assuming I have the authority, I am not prepared to make this order. The arbitrator's decision to proceed has already been made. Presumably, she will provide reasons in her decision. If Mr. Docouto believes she erred in law, he can appeal. The 30-day appeal period will run from the release of her decision.
On September 5, 2001, I received additional submissions from Mr. Spiegel, suggesting that I had misunderstood the factual circumstances and arguments being advanced. I responded on September 7, 2001, stating that this kind of post-decision challenge is generally inappropriate. I reviewed the submissions anyway, but did not change my decision.
Still not satisfied, Mr. Spiegel sent further submissions on September 10, 2001. I responded the following day, stating that I had already decided the bias application and would not entertain any further submissions. I also set out the procedure for applying for intervenor status, as the material suggested that Mr. Spiegel was interested in intervening in the Persofsky appeal.
The arbitrator released her decision on September 19, 2001. It sets out her orders refusing to adjourn the hearing or refer it to a private arbitration, and dismissing the bias motion. It also confirms her order dismissing Mr. Docoute's claims. Finally, it orders Mr. Docoute to pay Zurich $500 for arbitration expenses and $500 as an assessment under s. 282(11.2) of the Insurance Act on the basis that the arbitration was frivolous, vexatious or an abuse of process.
On October 2, 2001, I received another document from Mr. Spiegel, with a covering page referring to this file, entitled, "Formal Application to the Director of Arbitration Concerning the Issue of FSCO's 'Institutional Bias or Reasonable Apprehension of Bias and a Firmal [sic] Request for An Intervenor's Status in the Matter of Persofsky and Liberty Mutual!" I responded that same day, again explaining the appeal and intervention procedures available under the Insurance Act and the Dispute Resolution Practice Code.
On October 16, 2001, I received a 29-page document from Mr. Spiegel, entitled, "Appeal Submissions."3 However, I had not yet received any Notice of Appeal or filing fee. Once again, I advised Mr. Spiegel of the appeal process, and alerted him to the 30-day time limit. Later that same day, October 16, 2001, I received a cheque for $250, the appeal filing fee, another copy of the "Appeal Submissions" and a Statement of Service. However, there still was no Notice of Appeal. I advised Mr. Spiegel that the appeal would not be acknowledged unless he filed the proper forms.
On October 17, 2001, I received another document from Mr. Spiegel, this one entitled, "Formal Application to the Director of Arbitration Concerning the Issue of FSCO's 'Institutional Bias or Reasonable Apprehension of Bias and a Firmal [sic] Request for An Intervenor's Status in the Matter of Persofsky and Liberty Mutual," a slightly expanded version of the document sent on October 2, 2001. Again, I explained the procedure and stated that the application would not be accepted until the proper forms were filed.
Later that same day, October 17, 2001, Mr. Spiegel finally provided a Notice of Appeal, referring to his lengthy appeal submissions as the grounds for the appeal. In a letter dated October 19, 2001, I set out my understanding of the relief being requested and, on that basis, acknowledged the appeal. However, I denied Mr. Docoute's request for a stay of the arbitrator's order with respect to expenses and the assessment.4 Finally, to ensure that Mr. Docoute understood the implications of choosing to be represented by a non-lawyer, I required an acknowledgement, signed by Mr. Docoute, as follows:
Mr. Spiegel is not a lawyer.
Mr. Spiegel is not a member of the Law Society of Upper Canada and, therefore, is not subject to its supervision or discipline.
Mr. Siegel is not required to carry insurance as a paralegal.
As the named party, Mr. Docouto is responsible for paying any order made in favour of the insurer.
Having been informed of the above, Mr. Docouto authorizes Mr. Spiegel to represent him in this appeal.
On October 30, 2001, I received a 22-page "Amended Application for a Motion" from Mr. Spiegel. The covering page indicates that it was also sent to the Superintendent, two Director's Delegates, two arbitrators and the arbitration unit. The reason for this distribution was far from obvious. I responded in detail on November 2, 2001, setting out the background of this case and considering the status of the other cases in which Mr. Spiegel was advancing bias arguments. For reasons set out in that letter, I was not persuaded that they all should be put on hold pending the decision in Persofsky, or that I should reconsider the assignment of cases already delegated to others. I agreed, however, that this appeal should be heard together with two applications recently filed by Mr. Spiegel under s. 282(12) of the Insurance Act: Bersteyn and Allstate Insurance Company of Canada (P01-00049), and Sverdlik and Lombard General Insurance Company of Canada, (P01-00050).
In early November 2001, Zurich served and filed its Response to Appeal. It argued that the arbitrator's order was within her authority and did not reflect any error of law.
On November 5, 2001, I received an Application for Intervention filed by Mr. Spiegel on his own behalf, asking for intervenor status in the Persofsky appeal. As prescribed in the Dispute Resolution Practice Code, I asked the parties in Persofsky for their positions on the application.
In the meantime, I heard a motion in Tanzos and State Farm Mutual Automobile Insurance Company, (FSCO P01-00017, November 21, 2001), another appeal involving Mr. Spiegel. He argued this motion broadly, asking that I refer all his cases, including Docoute, to a private arbitrator, or adjourn them pending the decision in Persofsky. I declined to do so, concluding as follows:
Effectively, Mr. Spiegel is asking me to review these appointment decisions. He is not asking me to decide the issue of institutional bias. Instead, on the basis of his submissions, he is asking that I refer all these cases to an arbitrator under the Arbitrations Act, 1991. While I have a broad authority to appoint a FSCO employee or "other persons" to hear appeals, that appointment is under the Insurance Act, not the Arbitrations Act, 1991. According to s.281 of the Insurance Act, a dispute about accident benefits can go to an arbitrator under the Arbitrations Act, 1991, following mediation, but only on the consent of the parties. The application of this section to appeals is not obvious, nor is my authority to refer a dispute to an arbitrator under the Arbitrations Act, 1991 where, as here, there is no consent.
I also am not persuaded that these cases should be adjourned or stayed pending the outcome in Persofsky. As discussed in my intervention decision in that case, Mr. Spiegel is advancing substantially different arguments. Most significantly, his clients are insured persons who can choose their forum. In addition, he is alleging both institutional and actual bias, he is challenging the role of DACs and the internal appeal process, and he intends to raise Charter arguments. In my opinion, therefore, Mr. Spiegel's cases can proceed independently of Persofsky and need not await the outcome in that case.
If Mr. Spiegel wants to challenge my refusal to appoint someone outside of FSCO, or my refusal to grant a stay, he will need to do so elsewhere, presumably through the Ontario Superior Court of Justice (Divisional Court) on judicial review. Alternatively, if he intends to present his institutional bias arguments to me in the cases I have retained, as is being done in the Persofsky appeal, or to the Director's Delegates appointed in the other cases, he can do so. If this is the course he chooses, it may be possible to streamline the process to avoid the need for separate hearings and decisions in each case. His other option is simply to proceed with the cases on their merits, including going back to arbitration on the Bersteyn and Sverdlik cases.
The parties in Persofsky opposed Mr. Spiegel's intervention. On November 21, 2001, the same day I released the motion decision in Tanzos, I denied the intervention application. In summary, my reasons were:
Unlike the other intervenors, Mr. Spiegel did not represent any group with a unique perspective or expertise on the issues raised in the appeal.
Mr. Spiegel was likely to complicate the proceedings by raising substantially different issues and arguments.
Based on his submissions, it was not clear that Mr. Spiegel would make a useful contribution to the proceedings.
On January 2, 2002, I received three versions of a faxed document entitled, "Formal Notice of Amended Motion/Application (Constitutional Challenge) before the Director of Arbitration Re: FSCO's (Administrative Tribunal) 'Institutional Bias and/or Reasonable Apprehension of Bias'." The three versions are different lengths: 18 pages, 39 pages and 42 pages. The covering sheet references all of Mr. Spiegel's cases and indicates that it was sent to opposing counsel in those cases, the Superintendent, two Director's Delegates, an arbitrator, the federal Department of Justice and the Ministry of the Attorney General.5
On January 10, 2002, I wrote a lengthy letter in my four cases — Tanzos, Docoute, Bersteyn, and Sverdlik — attempting to bring some order to the proceedings. After reviewing the background of Mr. Spiegel's cases, I set deadlines for him to file the acknowledgement forms, clarify which submissions he was relying on, and provide copies of any documents he planned to file:
Since the release of this decision [the motion decision in Tanzos], I have not received notice of any court challenge to my decisions. Nor has Mr. Spiegel confirmed that he intends to present his institutional bias arguments to me in Tanzos, Docoute, Bersteyn or Sverdlik, or provided any suggestions on how the proceedings might be streamlined. Finally, he still has not filed the required acknowledgment forms. Instead, he simply sent his "Formal Notice of Amended Motion/Application," raising many of the same arguments already decided in Docoute and Tanzos, and stating that he is advancing the motion in the four cases before me and the five before Director's Delegates Makepeace and McMahon.
Mr. Spiegel's failure to follow procedures and accept rulings has unduly complicated these matters. If he wants to argue that FSCO adjudicators are not independent, he can do so. However, he must follow the rules and respect rulings. Therefore, no further steps will be taken in this case unless Mr. Spiegel files the enclosed Acknowledgement/Authorization to Represent form, without any alterations, signed by Mr. Docoute. As he has already had more than two months to do so, the deadline is Monday, January 21, 2002. If the deadline is not met, Mr. Docoute's appeal, including the motion, will be dismissed.6
Assuming I receive the acknowledgment, my intention is to schedule a date for this motion, along with the motions in any of the other three cases that are proceeding. This is not to suggest that the cases are being combined, but only that the motions will be heard one after the other on the same day. Therefore, before the motions are heard, Mr. Spiegel must:
Clarify to me and counsel for the insurer which motion document or documents he is relying on in each case. This is essential to understanding what relief is being sought and what arguments are being advanced.
Provide copies of any documentary evidence upon which he intends to rely to me and counsel for the insurer prior to the motion. If the documents are being relied on in more than one case, only one set need be submitted to me. However, counsel for the insurer in each case must be given a copy. Any issues about the admissibility of the evidence will be addressed at the motion.
At the hearing of the motion, I anticipate hearing from Mr. Spiegel first in Tanzos. Counsel for State Farm will then be given an opportunity to respond, followed by a chance for Mr. Spiegel to reply to any new issues raised in the response. Next, Mr. Spiegel will be given an opportunity to present any different arguments that apply in Docoute, followed by Zurich's response and Mr. Spiegel's reply. This process will then continue for the other two cases, Bersteyn and Sverdlik.
Finally, let me emphasize that some decisions have already been made. I refer to my November 2, 2001 letter in Docoute and my decision in Tanzos, dated November 21, 2001. Most notably, I have already decided that I will not refer the bias question to an arbitrator under the Arbitrations Act, 1991, nor will I adjourn or stay these cases until the proceedings in Persofsky have been completed. This motion date is to deal with Mr. Spiegel's other arguments and requests for relief.
On January 10, 2002, I received, by fax, two signed versions of the Acknowledgement. The first is the form I required. The second is a modified version, with the following added at the top:
Please be advised that I/we Roland Spiegel have been retained to act on behalf of the above named with respect to his/her claim for accident benefits and all other claims/matters arising out of the above mentioned automobile accident.
The applicant advises the FSCO Tribunal that this acknowledgement is signed under 'protest'!!!
This acknowledgement is signed under 'protest' due to the inappropriate forceful tactics and 'duress' perpetrated upon me and my representative (Mr. Roland Spiegel) by the FSCO's Arbitrator, Director/Director's Delegate, forcing me to sign such an acknowledgement, otherwise the proceeding would not be allowed to commence/proceed while I am being represented by Mr. Spiegel.
Furthermore, my authorization and direction with regard to representation by Mr. Spiegel had been already provided to the FSCO with the Application for Arbitration, were Mr. Spiegel had been clearly and unequivocally identified as ADR specialist/agent/representative/non-lawyer entity. This should have been good and sufficient for the FSCO to deal with Mr. Spiegel in any and all matters concerning my interests.
Mr Docouto hereby declares that he has outmost [sic] confidence in Mr. Spiegel's ability and competency to be represented by him at any and all upcoming proceedings at/with the FSCO Tribunals, to make any and all binding decisions on my behalf.
Notwithstanding the added comments, I confirmed receipt of the Acknowledgement form and reminded Mr. Spiegel of the pre-hearing requirements set out in my letter of January 10, 2002. The hearing was set for May 24, 2002, at 10:00 a.m. I note that Mr. Spiegel also provided signed acknowledgements in the Bersteyn and Sverdlik cases, but not in Tanzos. Consequently, Bersteyn and Sverdlik were also scheduled for May 24th.
Having heard nothing from Mr. Spiegel, I wrote again on April 19, 2002, setting the following deadline:
As the hearing is approaching, I must set a deadline. Therefore, it is ordered that Mr. Spiegel must confirm which document or documents he is relying on as written submissions, and provide copies of any documentary evidence upon which he intends to rely by FRIDAY, MAY 10, 2002, at 4:30 p.m. If he fails to do so, he will not be allowed to rely on any submissions or new evidence. The insurers will then have until Wednesday, May 22, 2002, to file any responding material.
Mr. Spiegel responded on May 6, 2002, stating that he had been on sick leave from late January to the end of February, and had returned to work on a part-time basis. As a result, he had fallen behind in his work. He asked "to have the matter placed in abeyance until such time that I will be able and permitted (by my family physician) to resume my work on full time duties, on permanent basis (probably, in the next six month or so)." The insurers in Docoute, Bersteyn and Sverdlik all opposed this request.
On May 10, 2002, I denied the adjournment request, providing the following reasons:
While I accept that Mr. Spiegel has health problems that restrict his activities, I am not prepared to adjourn these matters indefinitely, pending his return to full-time work. In reaching this decision, I have considered the following:
The Dispute Resolution process under the Insurance Act is meant to be a prompt, cost-effective alternative to the courts. Indefinite delays are inconsistent with this mandate. This is particularly true in the Bersteyn and Sverdlik cases, where the arbitrations have been stayed pending a decision on the bias applications.
Mr. Spiegel's letter states that he was on sick leave from January 29 to February 28, 2002. His doctor says that he needs to participate in a rehabilitation program and will need to modify his work schedule due to this rehabilitation. Also, Mr. Spiegel has been advised "to reduce stress and time pressure in his work," and will be adjusting his schedule accordingly.
While I am sympathetic to Mr. Spiegel's health problems, this does not explain why he has not provided the information requested in my letters of January 10, 2002, January 23, 2002 and April 19, 2002. Nor does it explain why he waited until May 6, 2002, to take any steps to deal with his obligations in respect of this hearing, involving three other parties, which has been scheduled since early February 2002.
As Director of Arbitrations, I am aware that Mr. Spiegel has filed more than 40 new applications for mediation since January 29, 2002. His willingness to take on new work substantially undermines the claim that he is unable to meet his pre-existing obligations.
One remedy Mr. Spiegel pursued in these cases was an adjournment or stay pending the outcome in the appeal in Persofsky and Liberty Mutual. I denied this request for reasons provided previously, including my letter dated January 10, 2002. The integrity of the process requires that I avoid the appearance that Mr. Spiegel is using his medical restrictions to make tactical decisions about which cases proceed and which do not.7
Therefore, the hearing of these three cases remains scheduled for May 24, 2002. I suggest that Mr. Spiegel consult with his doctor to see if he can arrange his schedule to allow him to proceed. If not, he may wish to speak to his clients about having someone else present their cases on May 24th. Alternatively, he can rely on written submissions, provided he clarifies which submissions are being advanced in which cases.
Mr. Spiegel, please advise me, with copies to counsel for the insurers, how you intend to proceed by Friday, May 17, 2002, including the information requested in my previous letters.
Mr. Spiegel wrote again on May 10, 2002, stating that he required the hearing to be scheduled between Tuesday and Thursday, and could only participate on those days from 11:00 a.m. to 2:00 p.m. He also set out the material he intended to rely on in general terms, but did not provide copies of any documents, as required by my previous orders.
This necessitated another letter, stating that I had already considered and denied the adjournment request, and that, absent consent, I was not prepared to adjourn the hearing. Nevertheless, Mr. Spiegel wrote again on May 17, 2002, objecting to my decision on various grounds, including that it would make more sense to put these cases on hold pending the outcome in Persofsky. In conclusion, he stated as follows:
Please be advised that I am being placed 'under duress', thus forced and compelled to appear for this hearing on May 24, 2002, against my best judgment, and contrary to my family physician advise/directions. Accordingly, I will leave the responsibility of any possible adverse consequences in your hands.
Please be advised, that I will be able to begin the hearing at approximately 11:30 a.m. and participate in the process up to 2:30 p.m. (as I am also involved in a my cardiac rehab program).
I responded on May 22, 2002, refusing to re-schedule the hearing:
It is not up to Mr. Spiegel to dictate the course of these proceedings. While I do not want to be insensitive to his health problems, his actions throughout this process have made it difficult to respond in a constructive manner. For reasons set out in my May 10th letter, I am not prepared to adjourn these matters indefinitely. Mr. Spiegel has chosen to continue as representative and, apparently, is not content to rely on his written submissions. Therefore, the oral submissions will proceed on May 24, 2002 at 10:00 a.m., as scheduled.
I suggest the following procedure, although this can be the subject of a brief discussion at the outset of the hearing: Mr Spiegel presents his submissions in the Docouto appeal for roughly one hour, followed by a break. If he needs additional time, he then concludes his submissions within the next hour. This is followed by submissions from counsel for Zurich. Mr. Spiegel then responds, followed by his submissions in Bersteyn which, presumably, will be brief. Counsel for Allstate then makes his submissions, followed by a response from Mr. Spiegel and any additional submissions in Sverdlik. Counsel for Lombard makes his submissions, with Mr. Spiegel having the last word in response. Breaks will be allowed as needed. However, if we are unable to complete the hearing in this manner, I will seriously consider completing the hearing by way of written submissions.
The hearing went ahead as scheduled, with Mr. Spiegel in attendance. Counsel for the insurers agreed that Mr. Spiegel could take as much of the day as he wanted and, if he did not finish, could complete his submissions in writing. They would then respond in writing. I endorsed this proposal, but set a 25-page limit on Mr. Spiegel's written submissions. Mr. Spiegel presented his oral submissions over three and a half hours, with two breaks, and filed his 25-page written submissions on June 24, 2002. Zurich's submissions were received on July 9, 2002.
III. ANALYSIS
Mr. Spiegel has been given every opportunity to present his arguments. As a representative, he is expected to raise and pursue arguments fearlessly on behalf of his clients. However, he must do so competently, conscientiously and according to the procedural rules governing the dispute resolution process. Director's Delegate Makepeace made this point in respect of Mr. Spiegel in Dhawan, cited above:
FSCO proceedings are intended to be accessible to insured persons who are unrepresented or represented by non-lawyer agents, as well as those represented by counsel. To that end, FSCO's procedural rules are simpler and more forgiving than the Rules of Civil Procedure, and FSCO adjudicators make considerable efforts to ensure that an insured person is not disadvantaged because of an insurer's greater access to legal services. However, the rules are intended to guarantee fairness for both parties, and adjudicators cannot ignore them at the risk of jeopardizing the integrity of the process. No representative can be allowed to stand in the way of a fair, orderly, expeditious process. [footnote omitted]
Unfortunately, Mr. Spiegel's conduct in this case has stood in the way of a fair, orderly and expeditious process. Beyond the procedural wrangles set out above, he never clarified which submissions he was relying on. Nor did he provide the documents he intended to rely on at the hearing. Nevertheless, he was allowed to proceed and filed, without objection, the following documents at the appeal hearing: his own resume; the affidavit of Suzanne Courtlander, sworn March 23, 2001, and filed by Liberty Mutual in the Persofsky appeal; the affidavit of Elisabeth Sachs, sworn November 1, 2000, and filed by the Ministry of Finance in the Persofsky appeal; and a FSCO brochure entitled, "A Real Alternative."
After reviewing Mr. Spiegel's submissions, it is clear that he personally objects to many aspects of the dispute resolution process. However, he has fallen far short of establishing that the arbitration decision in this case cannot stand due to institutional or personal bias. Not only are his submissions difficult to follow, large portions are irrelevant. For example, Mr. Spiegel attempts, yet again, to re-argue my decision to deny him intervenor status in Persofsky or stay his cases pending the outcome in that case, claiming that it is indicative of FSCO's bias and prejudice toward his clients or insured persons generally. These interim decisions, which have not been challenged by way ofjudicial review, have nothing to do with whether the arbitrator erred in rejecting the bias arguments advanced at arbitration.
Mr. Spiegel also challenges the integrity of the Designated Assessment Centres, and the validity of a number of arbitration and appeal decisions interpreting s. 24 of the SABS-1996, many of which he was involved in as representative. These submissions are lengthy, but the following paragraph provides a sense of the argument:
- It is quite clear that the FSCO's Administrative Tribunal has been either reducing the amount/quantum of s. 24 claims (as in Tsimidis, [supra], had been fully rescinded on Appeal, FSCO P99-00013), has been dismissing part of the claim (as in Tesfai, and Tanzos, [supra]), or is dismissing the entire claim (as in M.D., Fenech, and Docoute, [supra]). In each of the mentioned cases, dismissals had been reasoned, and justified based on flawed assumptions (as indicated above) and/or flawed and misplaced findings of fact, not substantiate by the evidence, in the absence to proper and/or any substantive evidence to the contrary, and with in clear error in law.
As a specific example, Mr. Spiegel cites my decision in M.D. and Halifax Insurance Company, (FSCO P00-00049, May 16, 2001), and then sets out 15 "key factors" that I ignored. In his oral submissions, he argued that this decision demonstrates actual bias.8 As none of these decisions, including M.D., have been challenged by way ofjudicial review, I do not see how Mr. Spiegel can establish they are wrong, let alone that they evidence bias or prejudice.
In his oral submissions, Mr. Spiegel complained about the training of front-line workers at insurance companies, the timeliness of mediation, limitations on the arbitrators' jurisdiction, and the arbitrators' approach to various sections of the legislation. None of these issues, in my view, are relevant to this appeal.
Mr. Spiegel submits that because FSCO must compete with the courts for business, it inappropriately and inaccurately promotes its services. He cites a brochure, A Real Alternative, as the prime example. The following paragraphs are from his final written submissions:
This form of 'proactive self promotion' of an Administrative Tribunal (a quasi-judicial body) would be highly irregular, and inappropriate, in the first place. Notwithstanding, that the promotion material does not provide any and all such indication and/or explanation to the question; 'a real alternative', to what? What are the other alternatives, who [sic] do they differ from the Courts (particularly Small Claims Court), and what the advantages and/or disadvantages electing one forum/process over the other.
In fact, the information provided/disclosed by the FSCO's promotion 'campaign' has been rather 'incomplete, misleading, and deceptive'. And as such, had created a wrong and 'misplaced' perception of 'the real alternative'. Which could be considered highly inappropriate and prejudicial to all Insured Persons, who could be easily misled, and deceptively lured into applying at the FSCO's Administrative Tribunal.
Mr. Spiegel pursued this argument in his oral submissions, claiming that FSCO "creates its own reality to promote its own jobs."
First, the choice between court or arbitration is created in the legislation. Although Mr. Spiegel advanced Charter arguments early in these proceedings, he did not pursue any challenge to the legislation at the appeal hearing. Second, the choice is given to the insured person, not the insurer. Consequently, an insured person who feels the arbitration process is unfair can avoid it by opting to proceed in court. Third, there is nothing inappropriate about FSCO providing public information about the dispute resolution services it offers. Fourth, the fact that Mr. Spiegel believes the brochure is misleading does not make it so. I find nothing in the brochure that compromises the integrity of the dispute resolution process. Fifth, and finally, there is no evidence that Mr. Docoute or Mr. Spiegel chose arbitration because they were misled in any way.
Mr. Spiegel's bias arguments, while relevant, are without foundation. As I understand it, he submits on appeal that because FSCO and FSCO arbitrators need to maintain a steady flow of cases, they have an incentive to facilitate disputes by keeping the proceedings contentious and confusing. To quote from the final written submissions:
The FSCO's Administrative Tribunal ensure (via the outcome of their decisions) that the prevailing reality/environment (of Accident Benefit Claims) remain perpetually highly uncertain, ambiguous and controversial, which inevitably, as a consequence will continue to generate greater numbers of disputes between Insured Persons and their Insurers (and, which sum of these disputes may eventually end-up with the FSCO's Administrative Tribunal). The larger are the actual general number of disputes, the greater would be the chances of disputes, which may end up with the FSCO's Administrative Tribunal.
It is apparent that the FSCO's Administrative Tribunal proactively attempts to eliminate all other elements and/or means, which could inherently stabilize the Accident Benefit Claims system, and which would invariably result in the reduction of 'generated disputes' between the Insured Persons and their Insurers. Such as 'reasonableness' of assessment and examination pursuant to s. 24 of the Regulation, as it would practically undermine and diminish the 'supreme rein' of a 'bias' DAC system, which is a de facto a great 'generator' of disputes between Insured Persons and their Insurers (as already indicated).
This argument is without merit. Adjudicators will not always be able to convince parties and their representatives that their decisions are correct. Few, however, will jump to the conclusion that they lost because the adjudicator was intent on abusing her authority for her own ends. As Arbitrator Novick stated in reference to Mr. Spiegel, "[w]hile some of his other contraventions may result from his lack of legal training, most lay people understand the distinction between an adjudicator not accepting a party's argument on an issue and demonstrating bias."9
Even if a party believes the arbitrator was biased, that view, no matter how sincerely held, is not sufficient to establish a reasonable apprehension of bias. The test is whether a reasonably informed person, viewing the matter realistically and practically, and having thought the matter through, would have a reasonable apprehension of bias. Further, the apprehension of bias must be substantial and not based on the "very sensitive or scrupulous conscience."10 In this case, I have no hesitation in concluding that Mr. Spiegel's allegations of bias do not meet this test.
Mr. Spiegel also claims that the Minister acted contrary to s. 7 of the Insurance Act in assigning the duty to recommend persons to conduct arbitration proceedings to the Minister's Committee on the Designated Assessment Centre System. I disagree. Nothing in the legislation requires the Minister to establish separate committees for each function. Nor do I find any merit in Mr. Spiegel's assertion that FSCO guidelines are contrary to the legislation. Not only is this claim irrelevant to the appeal, he provided no instances of conflict with the legislation.
Finally, Mr. Spiegel's continued reliance on the insurer's argument in Persofsky is surprising. Insured persons are not in the same position as insurers. They cannot be forced into arbitration. While an insured person can choose arbitration, he or she has no obligation to do so. The theory presented at arbitration, and repeated on appeal, is that faced with the Persofsky case, arbitrators may avoid awarding full benefits to insured persons to avoid further allegations of bias. Like the arbitrator, I find no strength in this argument. It could be argued just as easily that Persofsky might offend arbitrators, leading them to respond more harshly to insurers. The problem is that, absent evidence, both arguments are pure speculation.
In summary, I find no error of law in the arbitrator's decision. On the contrary, she did a commendable job making sense of Mr. Spiegel's arguments, and addressed them fully and fairly. As a result, the appeal is dismissed.
IV. EXPENSES AND ASSESSMENT
The criteria for awarding expenses are set out in s. 12(2) of R.R.O. 1990, Reg. 664, as follows:
(2) An arbitrator may award expenses to an insurer or insured person under subsection 282(11) of the Act if the arbitrator is satisfied that the award is justified, having regard to the following criteria:
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 Zurich should recover its expenses. Mr. Docoute was completely unsuccessful in this appeal. Beyond that, his representative engaged in conduct that needlessly prolonged and hindered the proceedings, including advancing arguments that were manifestly unfounded. Rather than prolong this dispute, I fix the expenses at $1,500, all inclusive.
According to s. 282(11.2), an insured person can be ordered to pay a lump sum up to the amount of the insurer's assessment ($500 for appeals) if the appeal is frivolous, vexatious or an abuse of process. In my opinion, this appeal meets the test. It was misconceived from the outset, and conducted in an abusive manner, warranting an order at the maximum rate.
July 29, 2002
David R. Draper Director of Arbitrations
Date
Footnotes
- The records of the Financial Service Commission of Ontario ("FSCO") show the insured person's name as "Docoute." However, various documents in the file, including documents filed by his representative, suggest a number of different spellings. Despite an order by the pre-hearing arbitrator and requests from me, his representative has not provided confirmation of the proper spelling of his client's name.
- Ontario Regulation 403/96, as amended, the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996.
- I also received a 20-page version of the appeal submissions on October 16, 2001.
- According to Zurich's submissions, these amounts still have not been paid.
- Neither level of government chose to participate on the Charter issues raised in Mr. Spiegel's materials.
- In this decision, all emphasized passages are as they appear in the original document.
- By this time, the Persofsky hearing had been scheduled for early July 2002.
- Other decisions that he challenges in his written and oral submissions include Dhawan, cited above, Glinka and Dufferin Mutual Insurance Company, (FSCO P01-00002, December 24, 2001); Tesfai and Allstate Insurance Company of Canada, (FSCO P00-00048, December 21, 2001); Tsimidis and Liberty Mutual Insurance Company, (FSCO P99-00013, August 20, 2000); Fenech and State Farm Mutual Automobile Insurance Company, (FSCO A00-000043, August 29, 2001); and, Avdalimov and CGU Insurance Company of Canada, (FSCO A00-000433, May 25, 2001).
- Tanzos and State Farm Mutual Automobile Insurance Company, (FSCO A99-000711, April 10, 2001).
- See Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, per de Grandpre, in dissent; and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 at 638.