Neutral Citation: 2002 ONFSCDRS 199

FSCO A02-000596

BETWEEN:

YASSER SULIMAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Lawrence Blackman

Heard: Written submissions were to be received by October 31, 2002

Appearances: None for Mr. Suliman Catherine Korte and Brenda Gross for Economical Mutual Insurance Co.

Issues:

The Applicant, Yasser Suliman, was involved in a motor vehicle accident on December 13, 2001 and applied for statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹

On October 16, 2002, I issued a pre-hearing decision in this matter, wherein I raised, for reasons enumerated in that decision, the following further issues:

Should Mr. Suliman's present representatives be excluded from this proceeding?
Is either party entitled to its expenses of the pre-hearing process to date, and if so, in what amount?

Result:

Messrs. Dewitt, Vaskevich and Simkhaev are excluded from this proceeding.
Mr. Suliman shall pay Economical the sum of $1,632.99 in any event of the cause, but only as a setoff against any award made in this proceeding in his favour regarding the disputed accounts of Centre City Health Recovery and/or interest on those accounts.

EVIDENCE:

The following is the chronology and my findings in this matter:

Mr. Suliman was involved in a motor vehicle accident on December 13, 2001.
Fourteen treatment plans respecting Mr. Suliman were submitted in the first half of 2002 by Centre City Health Recovery ("Centre City") practitioners. The dates, monetary amounts and types of treatment contained in the plans are dated as follows:

January 16th ($1,700 for rehabilitative strengthening and other modalities)

January 16th ($2,200 for chiropractic treatments)

January 18th ($940 for laser acupuncture)

January 18th ($1,260 for Swedish massage therapy)

March 7th ($1,200 for chiropractic treatments)

March 7th ($1,150 for rehabilitative strengthening and other modalities)

March 11th ($680 for Swedish massage therapy)

March 11th ($850 for laser acupuncture)

April 11th ($1,200 for chiropractic treatments)

April 11th ($1,150 for rehabilitative strengthening and other modalities)

April 19th ($680 for Swedish massage therapy)

April 19th ($850 for laser acupuncture)

June 6th ($1,200 for chiropractic treatments)

June 6th ($1,150 for rehabilitative strengthening and other modalities)

On March 27, 2002, a Report of Mediator listed only the $1,700 January 16, 2002 rehabilitative strengthening treatment plan noted above and interest thereon as the issues remaining in dispute between these parties. Mr. Walter Vaskevich (who is Centre City's Clinical Director) is noted as Mr. Suliman's representative.
On May 6, 2002, the Commission received a resubmitted Application for Arbitration (the initial Application having been rejected as incomplete). The only issues noted in dispute are the $1,700 unpaid treatment plan and interest. An attached Authorization and Direction notes Walter Vaskevich and Centre City as having authority to represent the Applicant and to, amongst other things, negotiate or arbitrate the claim for incurred expenses for physical and psychological therapies. The form is not fully dated and the names of the deponent and the witness (whose signatures are illegible) are not indicated. The Application lists as documents in Mr. Suliman's possession only the Report of Mediator and the denied Treatment Plan. The Application does not list any documents which the Applicant intends to obtain from other sources for use in the arbitration.
On May 31, 2002, the Commission received the Insurer's Response which listed eight categories of key documents upon which Economical intended to rely and, in an accompanying letter, fourteen production requests.
On August 20, 2002, a subsequently issued Report of Mediator listed as issues remaining in dispute between the parties herein the two April 11, 2002 treatment plans (regarding $1,200 for chiropractic care and $1,150 for rehabilitative strengthening), plus interest. Mr. Vaskevich is again noted as being Mr. Suliman's representative.
On September 5, 2002, a pre-hearing discussion was held before me in this matter. Mr. Suliman was represented by Mr. Mark Dewitt (an agent with VBSK Monolith and Associates), Mr. Walter Vaskevich, and Mr. Vladislav Simkhaev (who appears to be associated with Mr. Vaskevich). Ms. Brenda Gross, representing Economical, asked that all of Centre City's treatment plans be included as issues in this proceeding. The Applicant's representatives objected, submitting that only the three treatment plans which have been mediated should be included in this proceeding. I reserved on this issue.
By pre-hearing letter dated September 10, 2002 (sent to Messrs. Suliman, Dewitt and Vaskevich at the respective addresses provided, the latter being Centre City's offices), I asked for additional written submissions, by September 20, 2002, as to the proper framing of the Centre City claim. In my letter, I indicated concerns that a multiplicity of actions (and the possibility of inconsistent results) be avoided and that the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) (the "Code") be interpreted to produce the most just, quickest and least expensive resolution of the dispute. I received submissions from the Insurer dated September 20, 2002, together with a case brief. I have not received any submissions in this regard from or on behalf of the Applicant.
At the pre-hearing discussion, Mr. Suliman appeared to be taken by surprise when informed that he was potentially responsible for part of the Insurer's legal expenses. In my September 10, 2002 pre-hearing letter, I required Mr. Suliman's representatives to prepare and return, also 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:
were not lawyers;
were not members of the Law Society of Upper Canada and were not subject to the supervision or discipline of a professional body;
were not required to carry insurance as legal agents or representatives; and,
had 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, wished Mr. Dewitt, Mr. Vaskevich and Mr. Simkhaev to act as his agents.

I have not received any such acknowledgment from or on behalf of the Applicant.

In the pre-hearing letter, I required the parties to file with the Commission, by October 5, 2002, a list of agreed productions. By letter dated September 13, 2002, copied to Mr. Vaskevich, I received from Economical a list of the parties' productions. I have not received any correspondence from or on behalf of the Applicant in this regard.
In the same pre-hearing letter, I required that the parties, by November 5, 2002, either have complied with their undertakings or have provided proof of best efforts to comply, in the case of documents not in a party's possession. I have not received any correspondence from or on behalf of the Applicant in this or any other regard since the September 5, 2002 pre-hearing discussion.
In my September 10, 2002 letter, I notified the parties and their representatives that pursuant to Rule 9.9 of the Code and subsection 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, (the "SPPA"), an adjudicator may exclude a representative (other than a duly qualified barrister and solicitor) from appearing on behalf of a party.
In my October 16, 2002 Pre-Hearing Decision, I was not persuaded by the arguments of the Applicant's representatives, as I understood them, that "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 ordered that:

(a) 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).

(b) 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.

(c) 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.

Economical confirmed, by letter dated October 30, 2002, that it had served on the Applicant's representatives and filed with Ms. Neil, "all documentation necessary to fast track a mediation of the further Centre City Health Recovery plans." The Insurer further filed with myself, on November 1, 2002, the attachments to their Application for Mediation, including the fourteen treatment plans noted above as well as the Reports of Mediator dated March 27 and August 20, 2002.
By letter dated October 31, 2002, Economical filed written submissions as requested, together with a Book of Authorities. I have not received any response from or on behalf of the Applicant regarding the issues presently before me.

ANALYSIS:

The applicable legislation and case law provided sets out the following principles:

A party has the right to be represented by counsel or by an agent of one's choice. This is enshrined in section 10 of the SPPA. Director's Delegate Makepeace, in Dhawan and State Farm Mutual Automobile Insurance Company (FSCO P01-00025, February 1, 2002), notes the option to retain agents as an "access to justice" issue, as their generally lower fees provide additional options to parties.
The right to representation is not absolute. Subsection 23(3) of the SPPA tempers one's right of agent representation as follows:

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.

This provision is echoed in Rule 9.9² of the Code, which accords such power of exclusion to an adjudicator, which, pursuant to Rule 4, includes an arbitrator appointed by the Director of Arbitrations.

In Dhawan, Director's Delegate Makepeace was of the view that the principles as to non-lawyer representation set out by the Ontario Court of Appeal in Regina v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506, were applicable to this Commission's proceedings. Romanowicz held that "the right to choose representation by an agent must be respected unless that choice is clearly incompatible with the proper administration of justice" and that the trial judge must be able to make that finding. The proper administration of justice includes the right to a fair trial and the fair treatment of all participants to the process and that "that the proceedings be conducted in a manner that will command the respect of the community." If the adjudicator is satisfied that representation by the agent would interfere with the proper administration of justice, the agent must be disqualified. Judicial unease about representation by a particular agent will not suffice. Director's Delegate Makepeace held in Dhawan that subsection 23(3) of the SPPA "recognizes that an agent who does not comply with his duties and responsibilities, does not facilitate his client's access to justice, and may, in fact, impede it."
Romanowicz further held that the trial judge may raise the question of the propriety of the agent appearing, although he or she should do so "only based on some specific concern referable to the particular agent and not based on a general disapproval" of permitting agents to appear. The power to control agents, being a facet of the power to control the judicial process, "must be exercised judicially on the basis of the circumstances present in a given case." The dictates of procedural fairness must apply and all interested parties must be given a full opportunity to present their positions on the issue.

The Applicant's three representatives presented themselves as agents. I have no evidence that they are duly qualified barristers and solicitors (although I requested any evidence of same in my September 10, 2002 pre-hearing letter).

The question as to the propriety of the Applicant's representatives appearing was raised by myself. This was raised not on the basis of any general concerns of the propriety of agents appearing but rather, based on concerns as set out in my October 16, 2002 decision particular to these agents in this specific proceeding. The interested parties were given an opportunity to respond. Only the Insurer chose to do so.

For the cumulative reasons which follow, I find that Messrs. Dewitt, Vaskevich and Simkhaev are not facilitating this Applicant's access to justice in this particular case.

Rather, I find that in this particular proceeding they are not competent to properly represent the Applicant, that they do not understand and do not comply with their duties and responsibilities as representatives, agents or advisors (using the wording of the Code), and, on an ongoing basis, are impeding the Applicant's access to justice. I find that their further participation in this proceeding is incompatible with the proper administration of justice and that Messrs. Dewitt, Vaskevich and Simkhaev should be excluded from this proceeding.

The continuing actions (or inaction) of the representatives indicate that they are not competent to properly represent Mr. Suliman in this proceeding. The Application for Arbitration herein, resubmitted to the Commission by Mr. Vaskevich, does not comply with the requirements of Rule 25. There is no indication of any compliance with Rule 32 (the exchange of documents before the pre-hearing discussion) notwithstanding the Insurer's production requests set out in its Response received May 31, 2002. The oral submissions by the Applicant's representatives at the September 5, 2002 pre-hearing regarding the joinder of issues indicated, at best, a superficial understanding of the Commission's process and were non-responsive to my questions (notwithstanding Practice Note 7, which the Commission sent to Mr. Vaskevich by letter dated May 16, 2002, which reiterates Rule 33's statement that one of the purposes of the pre-hearing discussion is to identify and obtain agreement as to the issues for arbitration).
The Applicant's representatives failed, contrary to their responsibilities and duties as representatives, agents or advisors, to comply with my September 10, 2002 request for a signed "Glinka"acknowledgement. The inference is that the representatives do not wish Mr. Suliman to know that they are not under the supervision of any professional body, that they are not required to carry insurance as legal agents and/or that the Applicant is personally potentially liable to pay a portion of the Insurer's legal expenses.
The Applicant’s representatives failed, contrary to their responsibilities and duties as representatives, agents or advisors, to comply with my September 10, 2002 request for written submissions regarding the proper framing of the Centre City claims.
The Applicant's representatives failed, contrary to their responsibilities and duties as representatives, agents or advisors, to comply with my September 10, 2002 request for written confirmation of the agreed productions.
The Applicant’s representatives failed, contrary to their responsibilities and duties as representatives, agents or advisors, to serve and file written submissions as to whether they should be excluded from this proceeding.
The Applicant's representatives failed, contrary to their responsibilities and duties as representatives, agents or advisors, to serve and file written submissions regarding the issues of legal expense entitlement and quantum, leaving their client exposed to the risk of being personally responsible for payment of the Insurer's expenses.
The Applicant's representatives failed to dispel the concern (noted in my prior decision), and by their silence since the September 5, 2002 pre-hearing discussion now lead me to infer that they are, in this specific case, while hiding behind the named Applicant, seeking to advance the broader financial interests of Centre City (of which Mr. Vaskevich is Clinical Director) at the jeopardy of the putative Applicant.
The Applicant's representatives failed to dispel the concern (again, noted in my prior decision), and by their silence since the pre-hearing discussion now lead me to infer that their actions in this case are a deliberate attempt to harass Economical by the implicit threat of multiple proceedings being brought at various times in various forums on intertwined, if not identical, issues. This is incompatible with the fair treatment of either the respondent herein or of their own client, recklessly exposing Mr. Suliman to the risk of personal responsibility for payment of the Insurer's expenses and/or the $3,000 insurer's assessment. To allow such representation in a proceeding cannot command the respect of the community and is incompatible with the proper administration of justice.

EXPENSES:

I exercise my discretion to award Economical its expenses incurred regarding both the issue of combining the treatment plans and this present matter. In reaching this decision, I have considered, pursuant to Rule 75 of the Code, the conduct and manifestly unfounded position taken by the Applicant's representatives, as noted above. I total these hours from the Insurer's Bill of Costs as being 20.7. The Bill of Costs (which tallies 27 hours for all work on this file to date during arbitration) filed on behalf of Economical notes both Ms. Korte (at $75.38 per hour) and Ms. Gross (at $67.00 per hour). As it is not clear who has performed the work for the hours allowed, I am allowing only the lower rate of $67 per hour, for a total of $1,386.90. I am further allowing GST of 7%, as well as $149.01 for photocopying and postage/courier charges, for a total of $1,632.99.

This sum is awarded to the Insurer in any event of the cause, but payable only, considering the relationship between the treatment provider and the Applicant's representatives, as a setoff to any award made in this matter in favour of the Applicant regarding the disputed accounts of Centre City and/or interest on those accounts.

December 16, 2002

Lawrence Blackman Arbitrator

Date