Neutral Citation: 2002 ONFSCDRS 177

FSCO A01-000969

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

INGRID BURKE

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David Muir

Heard:

October 9, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one for Ms. Burke

William M. Sproull for Allstate Insurance Company of Canada

Issues:

The Applicant, Ingrid Burke, was injured in a motor vehicle accident on November 3, 1999. She applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Certain benefits have been paid; however, the parties have disputes concerning medical benefits and have been unable to resolve these disputes through mediation. An application for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended has been made.

The preliminary issue to be resolved here is as set out in the pre-hearing letter:

Is Ms. Burke precluded from proceeding to arbitration pursuant to section 50 of the Schedule for failing to attend the insurer examination and for failing to return the OCF-14 for the medical and rehabilitation DAC?

Three other issues arose just prior to the preliminary issue hearing.

First, at the pre-hearing, Mr. Volfson undertook to provide an authorization in the form outlined in Glinka² within 60 days of the pre-hearing. Mr. Volfson had not complied with that undertaking by the time of the hearing.

Second, on the day prior to the hearing, Mr. Volfson wrote to the Commission indicating that he no longer represented Ms. Burke and that he would not be appearing at the preliminary issue hearing.

Third, and underlying the previous two issues, there is the suggestion made by Allstate that Ms. Burke had not authorized the application for arbitration. This allegation was not pressed at the preliminary issue hearing, but was raised in the context of expenses; however, in the end, Allstate elected to make submissions on expenses following the result of the preliminary issue.

Allstate did not call evidence with respect to this latter issue, but over the course of the day documents were filed and/or documents in the Commission file were referred to, which upon their review subsequent to the hearing, gave rise to some substantial questions about the manner in which this arbitration was commenced.

Upon reflection, I have determined that I must proceed first to determine who the Applicant is, or to put it another way, did Ms. Burke authorize the application for arbitration or is some other person, including Mr. Volfson, the true Applicant?

My reasons for this preliminary conclusion are as follows:

Ms. Burke was represented by Pignalosa/IMC & Associates by the end of November 1999 and at least through mediation in May 2000. At some point, subsequent to mediation, but before the present arbitration was commenced, Pignalosa/IMC & Associates ceased to represent Ms. Burke.

The first pre-hearing in this matter did not proceed when it was discovered that the application for arbitration was incomplete. Pages were missing from the application form and it was unsigned by Ms. Burke. An accompanying authorization dated April 18, 2001 contained the signature of Ms. Burke but it was not witnessed. Mr. Volfson later attempted to send a completed Application for Arbitration by fax but was unable to do so because of a labour disruption at the Commission.

A second pre-hearing in this matter occurred on May 30, 2001. At that time Mr. Volfson produced a completed application for arbitration. Among other issues dealt with at the pre-hearing was the scheduling of the preliminary issue hearing.

At the pre-hearing, the arbitrator also recorded an undertaking made by Mr. Volfson to provide within 60 day, an authorization that meets the requirements of the Glinka appeal decision.³ Mr. Douglas Morgan, a representative of Allstate, testified that such an authorization was produced for signature at the pre-hearing but Ms. Burke did not sign it at that time. The pre-hearing letter stipulated that Mr. Volfson's continued right to act as Ms. Burke's agent was contingent upon his filing such an authorization, signed by Ms. Burke.

On September 30, 2002, counsel for Allstate wrote to the Commission to raise the issue of Mr. Volfson's failure to comply with what was chararcterised as an order of the pre-hearing arbitrator to provide a "Glinka" authorization. Allstate expressed concern at this failure on Mr. Volfson's part "particularly as it appears that this proceeding was commenced without Ms. Burke's knowledge or consent. "Allstate requested an order dismissing the proceeding and an order granting it its expenses.

The Commission responded that the matter of Mr. Volfson's non-compliance with the order or undertaking would be dealt with at the preliminary issue hearing.

On October 7, 2002, Mr. Volfson wrote to the Commission purporting to withdraw as Ms. Burke's representative. This letter, not copied to Ms. Burke, reads in part:

Please accept this letter as a notification that I, Roman Volfson, will be no longer representing Ms. Burke in regards to the above-noted matter. I have attempted to contact her on numerous occasions and never received a response from her. She has never signed the acknowledgement form which was requested by the Financial Services Commission of Ontario.

Therefore I can not provide you with required documentation and have stopped representing Ms. Burke.

As a result of these circumstances we have had to apply to the Small Claims Court to collect the outstanding amounts from Ms. Burke.

Please be advised that neither I nor Ms. Burke will be attending hearing (sic) of October 9 and 10, 2002.

On October 8, the Commission responded that Mr. Volfson's request to withdraw was not made in compliance with the Dispute Resolution Practice Code and that the hearing would proceed to consider Mr. Volfson's request to withdraw.

On October 9, prior to the hearing commencing, the Commission was copied with a letter from counsel for Allstate to Mr. Volfson indicating Allstate's position that Mr. Volfson did not have a unilateral right to withdraw:

It is my client's position that you do not have a unilateral right to remove yourself from the record. This is particularly so on the eve of the preliminary issue hearing in a proceeding which you probably commenced without Ms. Burke's knowledge or consent.

It is therefore my client's position that you must be in attendance tomorrow.

At the time and place set for the hearing of the preliminary issue, neither Ms. Burke nor her representative were in attendance. I adjourned the hearing for a short time. At 10:25 the hearing was reconvened. No one appeared for the Applicant.

In the somewhat unusual circumstances of this case, a telephone call was placed to Ms. Burke at her workplace. I spoke with her briefly and advised that a preliminary hearing had been scheduled for this day and asked her whether or not she intended to attend. She indicated that she was not intending to attend. Ms. Burke also indicated that she was not aware of the proceeding and directed any inquires concerning her case to Mr. Volfson. I advised her of Mr. Volfson's letter and read substantially all of it to her. She insisted that I ought to speak to Mr. Volfson, that the hearing had nothing to do with her. Ms. Burke did not ask that the matter be adjourned but did ask if she could call back. I provided her with my office phone number and asked her when she would likely be able to get back to us. She indicated it would not be before the end of the business day. Over the course of the day I checked for a voice mail message from Ms. Burke but there was none. As Ms. Burke had indicated that she was not aware of the proceeding, I confirmed with her that she had been in attendance at the pre-hearing when the dates for the preliminary hearing were set. I asked her whether she had received a notice of the proceeding and she indicated that she had not. She indicated that she had moved in the last couple of months, but would not provide a new address. She did confirm that the address on file was still a good address for making contact with her by mail. The telephone call concluded.

Although Ms. Burke had indicated that she had not received notice of the proceeding, I was satisfied that the notice was sent to an address that Ms. Burke confirmed was still a good address for her. It is also clear that Ms. Burke had been in attendance at the pre-hearing and was aware of the dates set at that time. I advised Allstate of my conclusions in that regard at the hearing and invited submissions on whether we ought to proceed. Allstate submitted that the matter ought to proceed in the absence of Ms. Burke and her representative.

The matter proceeded in the absence of Mr. Volfson, Ms. Burke's representative and Ms. Burke.

Who is the Applicant?

Underlying the issues in this pre-hearing is the question of who is truly the Applicant in this matter. Allstate has raised the issue, but did not press it at the preliminary issue hearing. It might not have mattered but for the non-appearance of Ms. Burke who, I have found, was given notice of this proceeding. As the synopsis of the telephone conversation with Ms. Burke suggests, she appears to view her role in this arbitration as limited.

A review of the documents filed at the hearing as well as documents in the Commission file, give rise to some troubling questions about who brought this arbitration on. There are a number of documents in the Commission file and others tendered in evidence, which include what purports to be Ms. Burke's signature. I claim no particular expertise in handwriting and heard no evidence in respect of this issue, but the signatures on these documents, said to be that of Ms. Burke, do not appear to have been made by the same person.

Several of the documents I have reviewed contain signatures which, to the untrained eye, appear to be at least similar. These include a disability certificate dated November 18, 1999; a document dated November 30, 1999 which purports to be a Direction and Authorization appointing Pignalosa/IMC & Associates as Ms. Burke's representative; a document dated January 10, 2000 appointing Roland Spiegel from Pignalosa/IMC & Associates as Ms. Burke's agent to represent her at mediation; and an unwitnessed document dated April 18, 2001 authorizing Mr. Roman Volfson to represent Ms. Burke in this proceeding.

Three other documents contain signatures which to the untrained eye, are perhaps similar as between themselves, but are distinctly different from those set out above. These include a Direction, dated April 10, 2002; an Application for Arbitration dated April 10, 2002; and an Authorization and Direction on April 10, 2002 appointing Roman Volfson as Ms. Burke's representative.

To be clear, I make no finding one way or the other about who has signed these various documents; however, the dramatic differences between them are sufficient to give rise to questions about Ms. Burke's role in this arbitration, notwithstanding her attendance at the pre-hearing.

Given that it is possible that the arbitration was commenced without her knowledge or consent as has been suggested by Allstate, I am troubled by the manner in which this matter has proceeded. Although I agreed with Allstate at the hearing that we could proceed, upon reflection I am persuaded that I must resolve the issue of who the parties are before proceeding to dispose of even the preliminary issue.

Accordingly, I am ordering that the arbitration be stayed pending a resolution of this issue. I am not satisfied that this arbitration was commenced properly in that, while it was brought in the name of Ms. Burke, it may in fact have been commenced with her knowledge or consent. The parties, including Mr. Volfson, who I make a party for purposes of resolving these issues, are required to appear on the days originally scheduled for the consideration of the substantive merits of Ms. Burke's claims, to lead evidence and whatever submissions are appropriate with respect to the questions I have raised above.

Depending on the outcome of these question, further submissions will be required on how best to proceed to determine the preliminary issue in light of it having initially proceeded in the absence of Ms. Burke and Mr. Volfson.

Mr. Volfson's Motion to withdraw as Ms. Burke's representative:

Allstate submitted that while Mr. Volfson was technically Ms. Burke's representative, he did not have standing to make submissions before the Commission because of his failure to comply with Arbitrator Evan's pre-hearing order. In any case, submitted Allstate, Mr. Volfson had not complied with the procedures set down in the Dispute Resolution Practice Code — he had not provided Ms. Burke's written consent, and had not brought a motion as contemplated by section 9.8 of the Practice Code — and ought not to be allowed to withdraw.

Mr. Volfson is not entitled, at this point, to withdraw as Ms. Burke's representative. It is not enough to merely announce your desire to withdraw whatever the underlying rationale. In the particular circumstances of this case, where among other issues, it is alleged that Mr. Volfson may have brought this arbitration in his own right and without the knowledge or consent of Ms. Burke, I decline to grant Mr. Volfson's request to withdraw as Ms. Burke's representative at this time.

November 8, 2002

David Muir Arbitrator

Date