Neutral Citation: 2002 ONFSCDRS 162
FSCO A02-000596
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
YASSER SULIMAN
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
PRE-HEARING DECISION
Before:
Lawrence Blackman
Heard:
September 5, 2002 pre-hearing discussion, at the offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were to be received by September 20, 2002.
Appearances:
Mark Dewitt, Walter Vaskevich and Vladislav Simkhaev for Mr. Suliman
Brenda Gross for Economical Mutual Insurance Company
Issues:
Following his involvement in a car accident on December 13, 2001, Mr. Suliman applied to Economical Mutual Insurance Company ("Economical") for statutory accident benefits, payable under the Schedule,1 for treatment provided by Centre City Health Recovery Inc. ("Centre City").
Economical advises, by correspondence dated September 20, 2002, that Centre City has submitted fourteen treatment plans, all dated between January and June 2002, with a presently outstanding disputed account of $11,637.97. In February 2002, Mr. Suliman applied for mediation on a $1,700 January 16, 2002 treatment plan. In June 2002, he applied for mediation on the two April 11, 2002 treatment plans ($1,200 for chiropractic treatment and $1,150 for physiotherapy).
The parties did not resolve their disputes through mediation. In April 2002, Mr. Suliman applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("Insurance Act"), on the $1,700 January 16, 2002 treatment plan.
At the September 5, 2002 pre-hearing discussion, Mr. Suliman was represented by Mr. Dewitt (a representative with VBSK Monolith and Associates), Mr. Vaskevich (Clinical Director for Centre City) and Mr. Simkhaev. Ms. Gross, representing Economical, asked that all of Centre City's treatment plans be included as issues in this proceeding. The Applicant objected, submitting that only the three treatment plans which have been mediated should be included.
The Applicant, or more accurately his representatives, could not advise as to whether, or if so, when, the other treatment plans might be mediated. Mr. Suliman's representatives submitted that their client has the right to proceed presently with some of these treatment plans in this forum and to proceed subsequently in this or in a different forum regarding the issue of entitlement to payment of the other Centre City treatment plans.
At the pre-hearing discussion, I received undertakings that I would receive, by September 12, 2002, copies of all of the treatment plans as well as any mediators' reports. While I now have the mediators' reports issued March 27 and August 20, 2002, I am still in receipt of only the January 16, 2002 treatment plan for $1,700 certified by one, Zahir N. Nazarali, for various rehabilitative programs.
Subsequent to receiving oral submissions at the pre-hearing as to which treatment plans should be included as issues in this proceeding, by pre-hearing letter dated September 10, 2002, I required, in part, that I be provided, by September 20, 2002, with additional written submissions as to the proper framing of the Centre City claim.
By facsimile transmission dated September 20, 2002, I received written submissions from Economical, followed by a case brief. I have not received any response from the Applicant or his representatives.
In my September 10, 2002 letter, I confirmed as issues the expenses of the arbitration and interest on any overdue accounts. Accordingly, the pre-hearing issue at this time is:
- What further issues shall be included in this arbitration proceeding?
Result:
On consent, presently in issue in this proceeding is the question of the Applicant's entitlement to payment of the Centre City treatment plans dated January 16, 2002 ($1,700) and April 11, 2002 ($1,200 and $1,150).
As a prerequisite to adding to this proceeding any further Centre City treatment plans as issues, Economical shall forthwith contact Ms. S. Neil, Mediation Team Leader, and provide all documentation necessary to fast track a mediation of any further Centre City treatment plans regarding this Applicant arising from this accident. The Insurer shall, by October 31, 2002, confirm same in writing to me, copied to the Applicant. In the interim, the hearing in this matter is stayed, pending a resumption of the pre-hearing discussion, at a date to be set, to finalize the identification of all the issues in dispute.
The parties shall, by October 31, 2002, serve and file written submissions as to firstly, whether I should exclude the Applicant's present representatives from this proceeding and secondly, on the question of entitlement to, and the quantum of, the expenses of the pre-hearing process to date.
EVIDENCE AND ANALYSIS:
Subsection 282(3) of the Insurance Act provides that:
The arbitrator shall determine all issues in dispute, whether the issues are raised by the insured person or the insurer.
Dealing with this provision's earlier, more restrictive wording,2 Director Sachs, in DeCicco and State Farm Mutual Automobile Insurance Company (OIC P-000277, February 21, 1992) declined to take either an open (i.e. including in the arbitration all matters in dispute) or a restrictive approach (including only that which the insured person defined as the matter and its consequent issues). Rather, in considering the Commission's mandate to provide "a relatively speedy and cost efficient alternative to the court process," Director Sachs confirmed Senior Arbitrator Naylor's pragmatic approach, "that once the matter is in arbitration, those issues which may affect the matter directly," that is, flow naturally and consequentially, might consequentially be brought in.
In considering the present wording of subsection 282(3), Arbitrator Baltman, in Nandand State Farm Mutual Automobile Insurance Company'(OIC A96-001835, July 28, 1997), saw the legislature as having signalled "a clear movement toward an inclusive approach to the hearing" in order to meet the public policy goal of "speedy and effective dispute resolution." She held that in exercising one's discretion in defining the issues in dispute, the arbitrator must be satisfied that the issue for determination was genuine and was not raised late for tactical reasons. She further stated that the hearing arbitrator could subsequently address any abuse through a special award and/or an award of expenses.
Economical submits that these treatment plans arise out of the same motor vehicle accident, involve the same parties, involve the same treatment centre, and raise the same issue, that is, whether the treatment proposed by the Centre City plans was reasonable and necessary. The Insurer further submits that to allow the Applicant to proceed separately on the other treatment plans would lead to duplication of evidence, effort and the real risk of inconsistent decisions.
Mr. Suliman, by his representatives, consents to include in this proceeding only those three treatment plans which have been mediated, retaining what he submits is his right to pursue payment of the other plans at a further date and possibly in a different forum. As I understand the argument put forth on behalf of the Applicant, regardless of questions of justice, fairness, economics, effectiveness, or the risk of inconsistent results, subsection 281(1) of the Insurance Act (which provides arbitration and litigation dispute resolution options) allows an insured person an unrestricted right to refer certain issues to one arbitration proceeding and to bring other concurrent issues, even if related, to a subsequent arbitration proceeding or to a court of competent jurisdiction.
I do not agree.
In this particular case, the evidence and submissions before me all indicate that these treatment plans arise out of the same motor vehicle accident, involve the same parties, involve the same treatment centre during a related period of time, and raise the same issue of the reasonableness and necessity of the proposed treatment. I agree with Economical that to allow the Applicant to proceed separately on each treatment plan would lead to undue duplication of evidence, effort and the real risk of inconsistent decisions on similar issues and similar evidence.
The further treatment plans appear, prima facie, to be intertwined with and to flow naturally and consequentially from those plans which have been mediated. I am persuaded that these further plans raise genuine issues in dispute. There is no suggestion that the Insurer's position is based on improper tactical considerations. Combining all the treatment plans in one proceeding would clearly advance the public policy of "speedy and effective dispute resolution," as well being cost-effective, pragmatic, fair and just. The Applicant's submissions, or lack of submissions, would, however, seem to indicate a position based more on tactical than legitimate considerations.
Hence, I am persuaded that the outstanding issues involving the various Centre City treatment plans should ultimately be arbitrated together.
Unfortunately, I presently have only one of these treatment plans. At the pre-hearing discussion, I was advised that there were ten plans. I am now advised that there are fourteen. At the pre-hearing discussion, I was under the impression that the entire account remained outstanding. I am now advised that part has been paid. I further understand that treatment at Centre City is continuing. Hence, the details of these claims remain, at this point, uncertain.
Subsection 281(2) of the Insurance Act requires, as a prerequisite to bringing a court proceeding or referring the issues in dispute to arbitration, that mediation has been sought and has failed. Section 280 allows either party to refer to a mediator any issue in dispute in respect of the insured person's entitlement to statutory accident benefits.
In Robertson and Co-Operators General Insurance Company (OIC A96-001940, September 30, 1996), I stated that "[t]he clear purpose of mediation under the Act is to facilitate dispute resolution. It is not the purpose of mediation to impede dispute resolution by adding pro forma steps to address technical minutia." In this case, in addition to offering a meaningful opportunity to endeavour to resolve some or all of the issues in dispute, mediation allows an opportunity for the mediator to clarify the issues in dispute and obtain agreements regarding the exchange of relevant and necessary documentation. I note that the second mediator's report herein is dated August 20, 2002, which is more than two months after the most recent treatment plan. It is not clear why the Insurer did not seek mediation of the further treatment plans at that time.
In order to satisfy any jurisdictional requirements, as well as to help clarify the issues in dispute and offer an opportunity to fully mediate all of the treatment issues in dispute between these parties, as a prerequisite to adding any further issues to this arbitration proceeding, I refer Economical to contact and provide Ms. S. Neil, Mediation Team Leader, with all documentation necessary for her to fast track a mediation of the further Centre City treatment plans pertaining to this Applicant arising from this accident. The Insurer shall confirm same to me in writing, copied to the Applicant, by October 31, 2002.
In the interim, the substantive issues in dispute in this proceeding are confirmed as including only the three Centre City treatment plans which have been mediated, namely January 16, 2002 ($1,700), and April 11, 2002 ($1,200 and $1,150). To avoid a multiplicity of proceedings, I find that the best remedy available in these circumstances is to stay the three-day arbitration hearing, currently set to commence March 17, 2003, pending a resumption of the pre-hearing discussion, at which time any issues remaining in dispute following the expedited mediation will be addressed.
At the pre-hearing discussion, Mr. Suliman appeared to be taken quite by surprise when informed that he is potentially responsible for part of the legal expenses of the Insurer. Accordingly, I required his representatives to prepare and return, by September 20, 2002, a signed acknowledgment, in accordance with the appeal decision in Glinka and Dufferin Mutual Insurance Company (FSCO P01-00002, March 7, 2001) that (subject to evidence to the contrary regarding the status of the representatives) Messrs. Dewitt, Vaskevich and Simkhaev:
– are not lawyers;
– are not members of the Law Society of Upper Canada and are not subject to the supervision or discipline of a professional body;
– are not required to carry insurance as legal agents or representatives;
– have advised Mr. Suliman that he is personally potentially liable to pay a portion of the Insurer's legal expenses;
and that Mr. Suliman, having been informed (in both English and in Arabic, having requested an interpreter in the latter language for the hearing) of the above, wishes Mr. Dewitt, Mr. Vaskevich and Mr. Simkhaev to act as his agents.
I further indicated in my letter that under Rule 9.9 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) (the "Code") and subsection 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended,3 that an adjudicator may exclude a representative (other than a duly qualified barrister and solicitor) from appearing on behalf of a party.
The Applicant's representatives have failed to provide the signed acknowledgment. They failed to provide written submissions. Their oral submissions indicated, at best, a superficial understanding of this process and were non-responsive to my questions. The representatives' actions, on their face, suggest a deliberate attempt to harass this Insurer by the implicit threat of multiple proceedings being brought at various times in various forums on intertwined, if not identical, issues. I am further concerned as to whether these representatives, hiding behind the named Applicant, seek to advance the broader financial interests of Centre City (of which Mr. Vaskevich is Clinical Director) at the possible personal jeopardy of their client, Mr. Suliman.
Accordingly, in exercising my duties to prevent any abuse of the process of this tribunal, I require that by October 31, 2002, the parties serve and file written submissions as to whether I should, in accordance with Rule 9.9 of the Code and subsection 23(3) of the Statutory Powers Procedure Act, exclude from this proceeding the Applicant's present three representatives.
EXPENSES:
The parties shall address in their submissions noted above, the question of entitlement to, and the quantum of, the expenses of the pre-hearing process to date.
October 16, 2002
Lawrence Blackman Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 162
FSCO A02-000596
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
YASSER SULIMAN
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
On consent, presently in issue in this proceeding is the question of the Applicant's entitlement to payment of the Centre City treatment plans dated January 16, 2002 ($1,700) and April 11, 2002 ($1,200 and $1,150).
As a prerequisite to adding to this proceeding any further Centre City treatment plans as issues, Economical shall forthwith contact Ms. S. Neil, Mediation Team Leader, and provide all documentation necessary to fast track a mediation of any further Centre City treatment plans regarding this Applicant arising from this accident. The Insurer shall, by October 31, 2002, confirm same in writing to me, copied to the Applicant. In the interim, the hearing in this matter is stayed, pending a resumption of the pre-hearing discussion, at a date to be set, to finalize the identification of all of the issues in dispute.
The parties shall, by October 31, 2002, serve and file written submissions as to firstly, whether I should exclude the Applicant's present representatives from this proceeding and secondly, on the question of entitlement to, and the quantum of, the expenses of the pre-hearing process to date.
October 16, 2002
Lawrence Blackman Arbitrator
Date
A tribunal may exclude from a hearing anyone, other than a barrister and solicitor qualified to practise in Ontario, appearing as an agent on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.
Footnotes
- The 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, 303/98, 114/00 and 482/01.
- "The arbitrator shall determine all issues in dispute and such other issues as the parties may agree."
- Subsection 23(3) of the Statutory Powers Procedure Act states that: