Neutral Citation: 2002 ONFSCDRS 194

FSCO A01-000851

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VADIM SVERDLIK

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

PRE-HEARING DECISION

Before:

David Leitch

Heard:

October 24, 2001 and November 8 and 29, 2002 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Roland Spiegel for Mr. Sverdlik

Harry P. Brown for Lombard General Insurance Company of Canada

Issues:

The Applicant, Vadim Sverdlik, was injured in a motor vehicle accident on November 20, 2000. He applied for statutory accident benefits payable under the Schedule¹ from Lombard General Insurance Company of Canada (Lombard). Disputes developed between the parties which they were unable to resolve through mediation and Mr. Sverdlik applied for arbitration at the Financial Services ommission of Ontario (the Commission) pursuant to the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Application for Arbitration was received by the Commission on June 26, 2001. The history of the matter from June 26, 2001 to October 23, 2001 is set out in my letter to Mr. Spiegel and Mr. Brown dated October 26, 2001, attached as an Appendix to this decision. As that letter indicates, the matter was to have come back before me on November 23, 2001. Instead, on November 2, 2001, the hearing was stayed by the Director of Arbitrations so that he could deal with Mr. Spiegel's "institutional bias" argument in this case and in others in which Mr. Spiegel had made the same argument. In his decision dated July 29, 2002, the Director of Arbitrations held: "[f]or reasons set out in the [Docoute and Zurich Insurance Company]² decision, I conclude that Mr. Spiegel has fallen short of establishing bias."

On July 31, 2002, Mr. Brown requested a resumption of the hearing and the matter came back before me on November 8, 2002 when the remaining issues were defined by the parties as follows:

1. Is Mr. Sverdlik entitled to orders:

(a) permitting him to withdraw his Application for Arbitration,

(b) directing Lombard to repay the $100 filing fee he paid the Commission in respect of his Application, and,

(c) requiring Lombard to pay his hearing expenses?

2. Should an order permitting Ms. Sverdlik to withdraw his Application be subject to the following terms and conditions:

(a) Mr. Sverdlik is to repay the $3,000 assessment fee Lombard paid the Commission in respect of his Application.

(b) Mr. Sverdlik is to pay Lombard's hearing expenses.

(c) Mr. Sverdlik is to pay the amounts he owes Lombard under (a) and (b) on some reasonable basis, and,

(d) Mr. Sverdlik is to agree not to file any further Applications for Arbitration with the Commission in respect of his accident of November 20, 2000?

Result:

1. Mr. Sverdlik is permitted to withdraw his Application for Arbitration on the condition that he pay Lombard's hearing expenses fixed at $2,000.

2. The parties are to negotiate a schedule for the payment of the amount specified in paragraph 1 and will advise me in writing if, by January 7, 2003, they have been unable to do so.

3. Mr. Sverdlik is not entitled to repayment of his $100 filing fee from Lombard.

4. Lombard is not entitled to repayment of its $3,000 assessment fee from Mr. Sverdlik.

Issue 1(a): Mr. Sverdlik's request to withdraw his Application:

The only substantive issue giving rise to this proceeding involves treatment recommended by a facility called the Human Health Centre. Lombard paid $3,100 for treatment received by Mr. Sverdlik at this facility from November 22, 2000 to February 22, 2001. It refused to pay $2,000 for additional treatment from February 22, 2001 to April 22, 2001. Mr. Sverdlik seeks permission to withdraw his Application for Arbitration so that he can sue Lombard in the Small Claims Court for payment of this medical expense. In Mr. Spiegel's view, the Small Claims Court constitutes a more "advantageous" forum in which to present his client's claim.

The governing legislation is clear that, once mediated, Mr. Sverdlik had the right to pursue this claim either by way of arbitration before the Commission or by way of action in a court.³Moreover, despite Mr. Sverdlik's initial decision to proceed by way of arbitration before the Commission, Lombard did not dispute his right, subject to conditions, to seek permission to withdraw his Application for Arbitration in order to pursue his claim by way of court action.

Mr. Sverdlik is, therefore, entitled to an order allowing him to withdraw his Application for Arbitration. However, for the reasons which follow, this order will be subject to some of the conditions sought by Lombard.

Issue 1(b): Mr. Sverdlik's claim for repayment by Lombard of his filing fee:

Mr. Sverdlik did not pay his filing fee to Lombard; he paid it to the Commission. In my view, repayment, if any, must come from the Commission. However, in his argument before me, Mr. Spiegel dropped his client's request for repayment from the Commission; he pursued only his client's request for repayment from Lombard.

I reject Mr. Sverdlik's claim as against Lombard.

Issue 1(c): Mr. Sverdlik's claim for his own hearing expenses:

As I understood him, Mr. Spiegel argued that Lombard put Mr. Sverdlik to unnecessary hearing expenses by insisting upon unreasonable terms and conditions for the withdrawal of his Application for Arbitration. Mr. Spiegel pointed out that his client's decision to seek to withdraw was communicated to Lombard well before the Pre-hearing on October 24, 2001. He maintained that this decision was, therefore, made "within a reasonable time," by which I understood him to mean, that it was made before Lombard incurred any hearing expenses.

In my view, this argument would have had considerable merit had the only issue at the Pre-hearing been Lombard's claim for the recovery of its $3,000 assessment fee and had that claim been rejected. In that situation, it could have been reasonably argued that Mr. Sverdlik was put to unnecessary hearing expenses. That was not, however, the situation which developed at the Pre-hearing on October 24, 2001 and soon after.

Rather than dealing first with the issue of Lombard's claim for the return of its assessment fee, as his written submission suggested he would do, and as I encouraged him to do, Mr. Spiegel took advantage of an adjournment I granted for other reasons to apply to the Director of Arbitrations under section 282(12) of the Insurance Act. Mr. Spiegel's decision to raise his "institutional bias" argument in this way led predictably to a stay of the hearing before me and subjected Lombard to the expense of appearing before the Director of Arbitrations. As the Director observed, Mr. Spiegel’s unsuccessful "institutional bias" application "was a step taken in the arbitration process that prolonged the proceeding."

Moreover, in the Docoute decision, the Director of Arbitrations did not simply dismiss Mr. Spiegel's "institutional bias" argument. He described Mr. Spiegel's arguments as "manifestly unfounded." Given that the Director of Arbitrations dismissed Mr. Sverdlik's application "[f]or reasons set out in the Docoute decision," his comment on the quality of Mr. Spiegel's arguments is clearly significant for the issue of expenses in the present case.

In light of the Director's comments and the criteria established by the Expense Regulation,⁴ I reject Mr. Sverdlik's claim for hearing expenses.

Issue 2(a): Lombard's claim for repayment of its assessment fee:

Section 282(11.2) of the Insurance Act reads as follows:

(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

Mr. Brown advanced two main arguments in support of Lombard's claim for repayment by Mr. Sverdlik of its assessment fee.

The first argument is found in Lombard's Response to the Application for Arbitration which reads, in part, as follows:

The insured has failed to attend upon a supplementary medical DAC with respect to the treatment plan in this matter, and further, has failed to attend an insurer's examination, pursuant to s. 42. The insurer pleads and relies upon s. 31 and s. 50 and states that the insured has no entitlement to file for mediation or file for arbitration.

The insurer therefore seeks recovery of its complete filing fee and its costs of this arbitration hearing.

Mr. Brown did not lead any evidence to support this argument. Even if he had, I reject the premise of this argument. While an applicant's unreasonable failure to attend a DAC or an insurer's examination may restrict his/her access to the full arbitration process,⁵ this is only a preliminary issue and cannot, by itself, establish that an entire application for arbitration was frivolous, vexatious or an abuse of process as required by section 282(11.2).

Mr. Brown's second argument is found in his letter dated October 12, 2001 responding to Mr. Spiegel’s "Motion/Application" dated October 10, 2001. Mr. Brown wrote in paragraph 4 of his letter: "...it does appear that the insured could have requested a withdrawal of the arbitration before the time period at which the $3,000 became payable."

There may well have been a short period after the Application was filed but before Lombard paid its assessment fee when Mr. Sverdlik could have changed his mind without any financial consequence for Lombard. However, there is no evidence before me that when the Application was filed, Mr. Sverdlik and Mr. Spiegel already had a plan to wait until after this period was over to signal their desire to change forums. I find it much more likely that the timing of Mr. Sverdlik's change of mind merely reflected the timing of Mr. Spiegel's conversion to the belief that since that Commission arbitrators were tainted by "institutional bias," Mr. Sverdlik would be better off pursing his claim through the court system.

It is not possible to determine exactly when Mr. Spiegel completed his conversion to this belief. Nevertheless, the conversion process appears to have started or accelerated with the release of an interim decision of the Director of Arbitrations in the case of Persofsky and Liberty Mutual Insurance Company.⁶ That decision involved an insurer's allegation of "institutional bias" and was released on July 3, 2001, a few days after Mr. Sverdlik's Application for Arbitration was filed. Mr. Spiegel relied heavily on the Persofsky decision when he made an allegation of "institutional bias" in the Docoute hearing before Arbitrator Allen on August 13, 2001. Mr. Spiegel appears to have completed his conversion after the release on September 19, 2001 of Arbitrator Allen's decision rejecting his request for the appointment of a private arbitrator. Mr. Spiegel sought to withdraw Mr. Sverdlik's Application for Arbitration a few days later, by letter dated September 25, 2001, indicating his belief that Mr. Sverdlik would be better off pursuing his claim through the court system.

I agree with the arbitrator in the case of Richard and Lombard General Insurance Company of Canada who observed: "The insertion [in section 282(11.2)] of the word 'commences' focus [sic] the inquiry on the state of affairs as they existed at the time the action [the application] was launched, and not on later procedural steps. To my mind, a subsequent decision to withdraw an application [in order to pursue a court action for the same benefits] is insufficient to trigger the section, unless it is part of a larger course of improper conduct tied to the commencement of the arbitration."⁷

In my view, there is no evidence in this case that Mr. Spiegel's changing opinions about what was best for his client, however misguided or improper, constituted part of a larger course of conduct tied to the commencement of Mr. Sverdlik's Application for Arbitration. On the contrary, the available evidence strongly suggests that Mr. Spiegel's opinions evolved and changed over a period of months after the Application for Arbitration was filed.

I acknowledge that the same conclusion could perhaps have been reached in the Docoute case. There, it was again only after the release of the Persofsky decision, and only two weeks before the hearing, that Mr. Spiegel raised his "institutional bias" argument. When Arbitrator Allen rejected this argument, Mr. Spiegel refused to present his case on the merits and the Insurer decided not to call evidence. Arbitrator Allen then dismissed Mr. Docoute's claim and ordered him to pay $500 in expenses and to repay $500 of the Insurer's assessment fee. On appeal, the Director of Arbitrations found no error of law in Arbitrator Allen's decision.

It is not clear to me whether or not Arbitrator Allen or the Director of Arbitrations decided that Mr. Docoute's Application for Arbitration was frivolous, vexatious or abuse of process when it was commenced. However, I note that in ordering Mr. Docoute to repay the Insurer's $500 assessment fee for the appeal, the Director of Arbitrations described the appeal as "misconceived from the outset." That is, in a nutshell, the test I propose to apply in the present case as I have, in fact, applied it in many earlier decisions.⁸ I do not, therefore, consider that the Director of Arbitrations' decision in Docoute prevents me from applying what I believe to be the proper interpretation of section 282(11.2) of the Insurance Act.

In the result, I reject Lombard's claim for the repayment of its assessment fee by Mr. Sverdlik.

Issue 2(b): Lombard's claim for its hearing expenses:

After dismissing Mr. Sverdlik's application under section 282(12) of the Insurance Act, the Director of Arbitrations made the following comments about expenses.

Not surprisingly, Lombard seeks its expenses. If I had authority to award them, I would do so. However, as I held in Castaneda and CGU Insurance Company of Canada, (FSCO P01-00053, December 18, 2001), the Insurance Act does not provide for expenses in respect of bias applications under s. 282(12). That does not mean the bias application must be ignored. It was a step taken in the arbitration process that prolonged the proceeding, within the meaning of the expenses regulation.⁹ In my opinion, therefore, it is a factor that can be considered when arbitration expenses are eventually determined.

I again note that in the Docoute decision, the Director of Arbitrations did more than simply dismiss Mr. Spiegel's "institutional bias" argument. He described Mr. Spiegel's arguments as "manifestly unfounded."

In my view, Lombard is entitled to its expenses in relation to Mr. Spiegel's unsuccessful "institutional bias" argument but is not entitled to its expenses in relation to its own unsuccessful claim for the repayment of its assessment fee.

In a letter dated November 5, 2002, Mr. Brown stated that he had spent 42 hours and that a student had spent 14 hours on the file, for total expenses to that date of $3,841.20. This figure did not include expenses for the hearings on November 8, 2002 and November 29, 2002.¹⁰However, since some portion of this time would have been spent preparing Lombard's unsuccessful claim for the repayment of its assessment fee, I reduce and fix Lombard's hearing expenses at $2,000.

Issue 2(c): payment schedule:

The parties are to negotiate a schedule for the payment by Mr. Sverdlik to Lombard of the $2,000 expense award. The parties will advise me in writing if, by January 31, 2003, they have been unable to negotiate a payment schedule.

Issue 2(d): Mr. Sverdlik's agreement not to file any further Applications for Arbitration with the Commission in respect of his accident of November 20, 2000:

I have no authority to impose this condition. However, as Mr. Spiegel is fully aware, venue-splitting is strongly discouraged and limited by Commission case law.¹¹

December 10, 2002

David Leitch

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 194

FSCO FA01-000851

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VADIM SVERDLIK

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mr. Sverdlik is permitted to withdraw his Application for Arbitration on the condition that he pay Lombard’s hearing expenses fixed at $2,000.

2. The parties are to negotiate a payment schedule and will advise me in writing if, by January 31, 2003, they have been unable to do so.

3. Mr. Sverdlik is not entitled to repayment of his $100 filing fee from Lombard.

4. Lombard is not entitled to repayment of its $3,000 assessment fee from Mr. Sverdlik.

December 10, 2002

David Leitch

Arbitrator

Date

APPENDIX

October 26, 2001

Mr. Roland Spiegel

ADR Specialist

Support Paralegal Consulting Inc.

111 Robert Hicks Drive

Toronto ON M2R 3R2

Mr. Harry P. Brown

Iacono Brown

Barristers and Solicitors

31^st Floor - 130 Adelaide St. West

Toronto ON M5H 3P5

Dear Mr. Spiegel and Mr. Brown:

Re: Mr. Vadim Sverdlik and Lombard General Insurance Company of Canada

MVA: November 20, 2000

Commission File A01-000851- SWE

History of this Matter

An Application for Arbitration was received by the Financial Services Commission of Ontario ("FSCO") on June 26, 2001. It was signed by the Applicant and his representative, Mr. Roland Spiegel. It identified the date of the accident as November 20, 2000 and the issue in dispute as the Insurer's refusal to pay $2000 for treatment as recommended in a treatment plan submitted to the Insurer. The Applicant also claimed interest, expenses of the hearing and a special award.

On July 27, 2001, FSCO received a letter from Mr. Brown indicating that he would be representing the Insurer and enclosing the Insurer's Response to the Application for Arbitration. In its Response, the Insurer maintained its refusal and claimed recovery of its filing fee and expenses of the hearing.

On July 25, 2001, FSCO sent copies of a Notice of Pre-Hearing Discussion to the Applicant, to Mr. Spiegel, to Mr. Brown and to the Insurer's ADR Co-ordinator. This Notice set the date for the Pre-Hearing Discussion, October 24, 2001, and described the purpose and scope of the pre-hearing discussion.

On September 26, 2001, approximately one month before the Pre-Hearing Discussion was to take place, FSCO received a letter from Mr. Spiegel in which he stated:

This is a formal notice that we are hereby withdrawing our client's Application for Arbitration (without any penalty) due to our client's concerns arising as the result of the unresolved issue of FSCO's Arbitrators' 'institutional bias and/or reasonable apprehension of bias.'

On October 4, 2001, FSCO received a copy of Mr. Brown's response to Mr. Spiegel which stated:

Lombard will only agree to a dismissal of the arbitration claim on the following terms and conditions:

1. That the insured or his paralegal representative be required to repay Lombard the $3,000 filing fee.

2. These costs be repaid on some reasonable basis.

3. That the applicant agrees not to issue any further Applications for Arbitration with the FSCO with respect to the issues arising out the no-fault claim for accident benefits from this accident.

On October 10, 2001, FSCO received from Mr. Spiegel a "Motion/Application" which contained the following:

1. grounds for the request for "the withdrawal of our client’s Application for Arbitration."

2. a statement that "in the event that his/her Motion will be dismissed, the Applicant will have no other alternative but to (subsequently) advance a Motion on the issue of "institutional bias or reasonable apprehension of bias."

3. a request that FSCO refund the $100 fee paid it collected from the Applicant when his Application for Arbitration was filed.

4. a denial that "the FSCO Tribunal" has the jurisdiction to "impose any...penalty (upon the Applicant) in relation to the $3000 Arbitration Assessment fees, which was imposed on the Respondent (and was not of the Applicant’s doing)" and an assertion that the Insurer could request a refund of this amount from FSCO.

On October 15, 2001, Mr. Brown forwarded a letter to FSCO with a copy to Mr. Spiegel, confirming that "the pre-hearing date of October 24, 2001 at 10:00 a.m. will now be set aside in order to hear the Motion brought by the insured’s representative." However, FSCO did not forward any Notice to the Applicant confirming this change of the purpose of the October 24, 2001 meeting.

Positions taken by the parties on October 24, 2001

On October 24, 2001, Mr. Spiegel appeared, accompanied by Ms. Tatyana Paukman, a caseworker at Support Paralegal Consulting Inc. The Applicant did not appear. Mr. Brown appeared for the Insurer, accompanied by Mr. Michael Reid from whom he took the Insurer’s instructions.

Based on the history as set out above, I told the parties at the outset that the issue to be decided, as I understood it, was the Applicant’s Motion to withdraw and the Insurer’s responding request for terms of withdrawal.

Mr. Spiegel and Mr. Brown agreed but Mr. Spiegel then indicated that he was seeking an adjournment so that he could make an application to the Director of Arbitrations under section 282(12) of the Insurance Act. That section reads as follows:

A party may apply to the Director for the appointment of a new arbitrator if the party believes that the arbitrator is biased and the Director shall determine the issue.

Mr. Spiegel agreed that the appointment of "a new arbitrator," i.e., someone other than me but still a FSCO arbitrator, would not satisfy his concerns about institutional bias. But, he said, he was intending to ask the Director to appoint a non-FSCO arbitrator or adjudicator, someone not tainted by his/her association with FSCO.

Mr. Spiegel's request for an adjournment was contrary to the position he had taken in his written Motion. There he had stated that it was only in the event that the Motion to withdraw was dismissed that he would advance a Motion on the issue of institutional bias. I asked Mr. Spiegel why he could not proceed with his Motion to withdraw and, if he lost, raise his argument about institutional bias on appeal to the Director. Despite his written submission, Mr. Spiegel was unprepared to proceed in this fashion before me and continued to press for an adjournment.

Mr. Brown alleged that Mr. Spiegel was not competent to represent the Applicant. In light of this allegation, I asked Mr. Brown to seek instructions as to whether his client was seeking to exclude Mr. Spiegel, relief not claimed in Mr. Brown's correspondence, or whether his client wanted to proceed with the Motion to withdraw and request for terms. After taking a short break, Mr. Brown informed me that his instructions were to proceed with the Motion, that is, to not challenge Mr. Spiegel's competence but to oppose his request for an adjournment.

Reasons for granting an adjournment

I adjourned the hearing of this Motion and the responding request for terms to November 23, 2001 at 10:00 a.m. I granted this adjournment in the interest of fairness to the Applicant. He was denied fairness by reason of a defect in notice. He may also have been denied fairness by reason of an uninformed decision to be represented by Mr. Spiegel.

(a) defect in notice

The Applicant was clearly not notified by FSCO of the altered purpose of the meeting on October 24, 2001. The Notice of Pre-hearing Discussion stated that the purpose of that meeting was "to attempt to settle the dispute and assist the parties to prepare for arbitration" by defining issues, exchanging information and "dealing with procedural and preliminary issues." In fact, the altered purpose of the meeting was to conduct an oral hearing to finally determine, short of an appeal, the Applicant's right to withdraw his Application for Arbitration, without any settlement or arbitration proceeding, subject to the insurer's right to obtain terms for that withdrawal. The terms sought by the Insurer included an order against the Applicant for $3,000 and a bar to his filing any future Applications for Arbitration as a result of the accident.

Subsections 6(1) and 6(3)(a) of the Statutory Powers Procedure Act stipulate:

(1) The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.

(3) A notice of an oral hearing shall include,

(a) a statement of the time, place and purpose of the hearing;

I find that FSCO did not meet these notice requirements in connection with the October 24, 2001 meeting. I will ensure that it does meet these requirements with respect to the November 23, 2001 hearing.

(b) possibly uninformed decision by the Applicant to be represented by Mr. Spiegel

In support of his authority to act for the Applicant, Mr. Spiegel relied upon a form entitled "Authorization and Direction to FSCO Arbitration Unit" which the Applicant purportedly signed on June 10, 2001. This form states that the Applicant authorizes and directs Mr. Spiegel "to represent me and act on my behalf to protect my interest with respect to my incurred expenses for MVA on 20.11.2000 for Accident Benefits."

It is not clear to me that this document conferred upon Mr. Spiegel the Applicant’s authority to represent him with respect to all his claims, or potential claims, for statutory accident benefits as a result of the November 20, 2000 accident. Rather, this document can be read as only conferring upon Mr. Spiegel the Applicant’s authority to represent him in relation to statutory accident benefits claimed with respect to his "incurred expenses." This would include medical expenses of the type identified in the Application for Arbitration but might not include claims for statutory accident benefits which are not in respect of "incurred expenses," like, for example, claims for income replacement benefits: see Moons and Cooperators General Insurance Company,(FSCO appeal P00-000033, May 28, 2001)

The scope of Mr. Spiegel’s authority is a matter of concern because one of the terms for the withdrawal being sought by the Insurer would remove the Applicant’s right to recover all forms of statutory accident benefits through FSCO proceedings.

I am not inclined to interpret Mr. Spiegel’s authorization generously. On the contrary, I am inclined to read it narrowly by reason of the comments made by the Director’s Delegate in the case of Glinka and Dufferin Mutual Insurance Company (FSCO appeal P01-00002, March 7, 2001), another case in which Mr. Spiegel’s role as an Applicant’s representative was questioned. While the Director’s Delegate did not exclude Mr. Spiegel from acting for the Applicant, he confirmed that this tribunal is "under a positive duty to ensure that the decision to use an agent was an [applicant's] informed decision." Accordingly, he held that Mr. Spiegel’s right to continue to act as the Applicant’s agent in that case was contingent upon his filing a document signed by the Applicant in which she acknowledged that:

1. Mr. Spiegel is not a lawyer;

2. Mr. Spiegel is not a member of the Law Society of Upper Canada and is not subject to the supervision or discipline of a professional body;

3. Mr. Spiegel is not required to carry insurance;

4. an order for expenses in favour of Dufferin [the Insurer] was made against her at the arbitration stage, and as a named party, she is potentially liable for Dufferin's expenses at the Appeal stage;

5. having been informed of the above, she wants Mr. Spiegel to act as her agent.

In my view, an adjournment was warranted in this case so that I can impose the same kind of condition on Mr. Spiegel's right to act as was imposed in the Glinka case.

In particular, I order that Mr. Spiegel's right to act on behalf of the Applicant at the hearing on November 23, 2001 will be contingent upon his filing a document signed by the Applicant, and by a witness to the Applicant's signature (other than Mr. Spiegel), in which the Applicant acknowledges that:

1. Mr. Spiegel is not a lawyer;

2. Mr. Spiegel is not a member of the Law Society of Upper Canada and is not subject to the supervision or discipline of a professional body;

3. Mr. Spiegel is not required to carry insurance;

4. a hearing will be conducted at FSCO on Friday, November 23, 2001, commencing at 10:00 a.m. in which Mr. Spiegel will be seeking an order permitting the Applicant to withdraw his Application for Arbitration, requiring FSCO to refund his $100 filing fee and awarding him his expenses of the hearing;

5. at the same hearing, the Insurer will be seeking to have the following terms inserted in any order permitting the Applicant to withdraw:

(i) the Applicant or Mr. Spiegel is required to repay the Insurer its $3,000 assessment fee; the Applicant is not entitled to his expenses of the hearing and the Applicant is required to pay the Insurer its expenses of the hearing;

(ii) amount ordered under term (i) is to be repaid to the Insurer on some reasonable basis;

(iii) the Applicant agrees not to issue any further Applications for Arbitration with the FSCO with respect to claims for statutory accident benefits as a result of the accident of November 20, 2001.

6. having been informed of the above, the Applicant confirms by his signature that he grants Mr. Spiegel full authority to act for him with respect to all the matters listed in paragraphs 4 and 5 or closely-related matters.

I further order that this acknowledgement must be translated into whatever language Mr. Sverdlik is able to read before he signs it. In that case, both the translated and the English version will be produced at the hearing on November 23, 2001, together with the translator’s written affirmation that the former is a good and faithful translation of the latter.

Conduct of the hearing on November 23, 2001

The adjournment was granted for the reasons set out above, not to allow Mr. Spiegel time to apply to the Director under section 282(12) of the Insurance Act. In my view, the availability of an adjournment or a stay pending an application to the Director under section 282(11) of the Insurance Act should be the same as the availability of an adjournment or a stay pending an appeal to the Director under section 236(6) of the Insurance Act. The latter section reads as follows:

An appeal does not stay the order of the arbitrator unless the Director decides otherwise.

If an order is not automatically stayed by an application or an appeal to the Director, it follows that a hearing should not be automatically stayed by reason of an application or an appeal to the Director. Accordingly, I will entertain no further request for an adjournment of the hearing on this basis unless supported by an order of the Director granting a stay.

Nor will be there be any reason for me to entertain submissions on the issue of institutional bias on November 23, 2001. Mr. Spiegel has stated that he intends to pursue this issue through his application to the Director under section 282(12) of the Insurance Act. The adjournment was not granted to allow Mr. Spiegel time to change his mind in that regard.

Finally, I want to remind Mr. Spiegel that under section 23(1) and (3) of the Statutory Powers Procedures Act, "a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent an abuse of process" and that a tribunal may also exclude a person appearing as an agent "if it finds that such a person is not competent properly to represent or to advise the party or witness or does not understand or comply with the duties and responsibilities of an advocate or adviser."

As I explained to Mr. Spiegel on October 24, 2001, I consider it an abuse of the hearing process for him to interrupt counsel for the Insurer. Mr. Spiegel will be given ample opportunity to challenge or contradict anything said by counsel for the Insurer but must wait until I provide him with that opportunity. In the meantime, he is to remain silent. Any interruption, including a single interruption of Mr. Brown by Mr. Spiegel during the course of the hearing on November 23, 2001 will result in Mr. Spiegel’s immediate exclusion from the hearing without further warnings.

If you have any questions or require more information, please telephone this office at (416) 250-6714, or toll-free at 1-8—517-2332. The Case Administrator for this file is Sita Welsh, who can be reached at (416) 590-7089, or toll-free at 1-800-517-2332, ext. 7089.

Yours truly,

(Signed)

David Leitch

Arbitrator

Copies to:

Mr. Vadim Sverdlik

Ms. Nancy Stiso

ADR Co-ordinator

Lombard General Insurance Company

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, 303/98, 114/00 and 482/01.
2. 2(FSCO Appeal P01-00036, July 29, 2002)
3. 3section 281 of the Insurance Act
4. 4Ontario Regulation 664, R.R.O. 1990, as amended.
5. 5An applicant is still entitled to have the validity of the insurer's objection under section 50 determined by an arbitrator: see Kudla and Coachman Insurance Company, (FSCO A99-001115, January 11, 2002).
6. 6(FSCO appeal P00-00041, July 3, 2001)
7. 7(OIC A97-001526, April 29, 1998) at p.16
8. 8See Nguyen and Scottish & York Insurance Company Limited, (FSCO A00-000136, May 10, 2001), Bourcier and Primmum Insurance Company, (FSCO A01-000915, May 16, 2002), L.C. and Pafco Insurance Company Limited, (FSCO A97-002212, May 30, 2002), Pang and Kingsway General Insurance Company, (FSCO A01-000785, August 21, 2002), Sanchez and CGU Insurance Company of Canada, (FSCO A00-000940, June 22, 2001), Dong and Coachman Insurance Company, (FSCO A01-000956, November 22, 2002), Tang and Coachman Insurance Company, (FSCO AO1-000956, November 22, 2002); see also Green (Estate of) and Kingsway General Insurance Company, (FSCO A02-000215, October 30, 2002).
9. 9Ontario Regulation 664, as amended.
10. 10This additional hearing date was required to satisfy me that Mr. Spiegel had Mr. Sverdlik's full authority to act and that Mr. Sverdlik was fully aware of the hearing issues. Mr. Sverdlik appeared, read and spoke English in my presence, and confirmed that he had signed a document written in English giving Mr. Spiegel full authority to act on his behalf. This document was retrieved from the Director of Arbitrations' file and has not been made an exhibit.
11. 11Mangat and Non-Marine Underwriters, Mbrs. Of Lloyd's, (FSCO Appeal P00-00020, August 1, 2000)