Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2002 ONFSCDRS 25

Appeal P01-00025

OFFICE OF THE DIRECTOR OF ARBITRATIONS

OM DHAWAN

Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Respondent

Before:

Nancy Makepeace, Director's Delegate

Representatives:

Roland Spiegel (for Mr. Dhawan)

Ian D. Kirby (for State Farm)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Spiegel is excluded from this proceeding pursuant to s.23(3) of the Statutory Powers Procedure Act.

2. Mr. Dhawan has 30 days from the date of this decision to notify the Commission and State Farm whether he intends to proceed with the appeal. If he does not give notice as to his intentions, the appeal will be deemed to have been abandoned, and I will dispose of the matter forthwith. Whether or not Mr. Dhawan gives notice that he intends to proceed with the appeal, I intend to dispose of the issue of appeal expenses, including expenses of the bias motion, forthwith after expiry of the 30-day notice period.

February 1, 2002

Nancy Makepeace Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Dhawan appeals from the arbitration decision, dated April 20, 2001. He commenced arbitration with respect to treatment and assessment expenses totalling about $8,000. The arbitrator concluded that the parties had reached a binding settlement of all issues in dispute before the hearing, and therefore Mr. Dhawan could not proceed to arbitration. He appealed.

On July 3, 2001, Director Draper issued an evidentiary ruling in Persofsky and Liberty Mutual Insurance Company.¹ The insurer in that case argues that "in a system where only insured persons can choose arbitration instead of court, there will be 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." Following release of that decision, Mr. Spiegel brought bias motions on behalf of a number of insured persons, including Mr. Dhawan. Although I believe Mr. Spiegel is not competent to represent parties in FSCO appeal proceedings generally, it is his conduct of the bias motion in this appeal that particularly warrants an exclusion order.

II. APPEAL HISTORY

The prolonged history of this appeal is important in setting the context of my order.

Mr. Dhawan's initial Notice of Appeal, prepared and signed by Mr. Spiegel, was received on May 23, 2001. It alleged "serious errors" of fact and law, but contained no particulars of the grounds for the appeal. On behalf of State Farm, Mr. Kirby submitted the Notice did not provide sufficient details to allow a response. Rather than rejecting the appeal under Rule 47.2(c) of the Dispute Resolution Practice Code - Third Edition (April 15, 1997),² I gave Mr. Spiegel until June 8, 2001 to provide additional detail. Mr. Spiegel provided his appeal submissions, including sufficient particulars, on June 6, 2001, and State Farm's written submissions were received on June 18, 2001.

State Farm submitted that the appeal did not raise a question of law, and should be rejected under Rule 47.2(a). I invited Mr. Dhawan to respond, which he did. By letter dated July 5, 2001, I rejected the appeal apart from three issues: whether Mr. Spiegel had actual or ostensible authority to enter into the settlement as found by the arbitrator; whether a binding settlement can arise in the absence of minutes of settlement, a signed release or other written documentation; and whether relief from forfeiture under s.129 of the Insurance Act was available to Mr. Dhawan. I exercised my discretion to hear argument on the first issue although it did not clearly raise a question of law. I also gave Mr. Dhawan the benefit of the doubt in acknowledging the appeal on the third issue, despite numerous decisions stating that only the courts have power to relieve against forfeiture. In mid-July, oral submissions were scheduled for November 28, 2001 on the issues for which leave was granted. To that point, Mr. Dhawan had not made any allegations of bias against the arbitrator or the Commission.

On November 8, 2001, some 20 days before the scheduled hearing, I received a 28-page document from Mr. Spiegel entitled, "Amended Motion/Application (and a Constitutional Argument) before the Director of Arbitration Re: FSCO's (Administrative Tribunal) 'Institutional Bias or Reasonable Apprehension of Bias'." The motion begins with the following request for relief (uncorrected):

1. The Applicant formally declares the presiding Arbitrators, Director of Arbitration/Director's Delegates (at the FSCO) 'bias' on the grounds of 'institutional bias or reasonable apprehension of bias' (and personal bias), and requests a formal hearing before "a proper body" (supra), in accordance with s.282(12) of the Insurance Act.

2. The Applicant requests to have any and all Applicant's hearings and proceedings at the FSCO inclusive of this Motion on 'institutional bias or reasonable apprehension of bias' be heard before/by "a proper body" (in accordance with the Arbitration Act, 1990).

3. The Applicant further requests that any and all other hearings and proceeding at the FSACO inclusive of Applications, Motions, Arbitrations and/or Appeal will be held before "a proper body" (in accordance with the Arbitration Act, 1991), inclusive of the hearing scheduled to be conducted at the FSCO on Friday November 23, 2001, commencing at 10 a.m.³

4. In the alternative, the Applicant requests that the hearing scheduled to be conducted at the FSCO, be adjourned until such time that the Applicat's request with regard to any and all hearing and proceedings will to be held before/by "a proper body" (in accordance with the Arbitration Act, 1991), and/or as shall be otherwise determined by the appropriate authorities (the Courts) subsequent to the upcoming hearings.

5. The Applicant requests a stay/adjournment of all hearings and/or proceedings, (inclusive of Motions, Applications, Arbitrations and Appeal hearings/proceedings) pending the completion and outcome of the above Applications and other relevant hearings and proceedings with reference to the issue of FSCO's 'institutional bias or reasonable apprehension of bias' (Courts decisions), inclusive of the November 23, 2001 hearing, as well as a 'stay' of Arbitrator Leitch's order of October 26, 2001, pending the completion and outcome of the above Applications and other relevant hearings with reference to the issue of FSCO's 'institutional bias or reasonable apprehension of bias'.

6. The Applicant requests that any and all Motions, Applications orders, Arbitration and/or Appeal decisions, orders and directions, and any and all such orders and/or directions by any and all Arbitrators and the Director and/or Director's will be 'stayed' pending the resolution and determination (by the Courts) of FSCO's (Arbitrators, and Director/Director's Delegates) authority and jurisdiction arising out of 'institutional bias or reasonable apprehension of bias'. [emphasis in original]

Mr. Spiegel submits that s.282(16) of the Insurance Act, which says that "the Arbitration Act, 1991 does not apply to arbitrations under this section," does not apply to appeals. According to Mr. Spiegel, this enables the Director, under s.282(12) of the Insurance Act, to appoint "a proper body" under the Arbitration Act, 1991. He also points to s.6(4) of the Act, which allows the Director to "appoint employees of the Commission or any other persons to hold hearings on his or her behalf and to exercise the powers and perform the duties of the Director relating to such hearings." With respect to arbitrators, he argues that s.7(4) and 8(1) of the Act do not require them to be FSCO employees.

Although Mr. Spiegel's argument is difficult to follow, I understand his allegation to be that FSCO and its adjudicators are institutionally biased in favour of insurers, or there is a reasonable apprehension of bias, because the arbitrators, appeals delegates, and the Director report to the Superintendent of Insurance, who has power to issue Guidelines about benefit entitlement, and also oversees the Designated Assessment Centres, and because the appeals process is internal. He also submits that FSCO adjudicators have insufficient security of tenure or employment to allow for independent decision-making, and that they have a personal interest in making the arbitration process more lengthy and complicated, which prevents insured persons from making use of FSCO dispute resolution processes. He makes two arguments arising specifically from Persofsky and Liberty Mutual: first, that the correspondence between the Superintendent and Liberty Mutual relied on by the insurer in that case raises questions for insured persons about FSCO's impartiality and neutrality, and secondly, that FSCO adjudicators may attempt to counter the insurer's bias allegations in that case by favouring insurers in other decisions, creating a "reverse bias." He alleges actual personal bias on the part of "several Arbitrators and/or Director/Director's Delegates," including me, "as can be demonstrated based upon their Arbitration and Appeal decisions." Finally, he submits that FSCO's lack of independence and impartiality contravenes the principles of natural justice, and also contravenes sections 7, 11, 12 and 15 of the Canadian Charter of Rights and Freedoms.

On November 22, 2001, I made a number of orders in response to the motion. First, I required Mr. Spiegel to provide an acknowledgement, signed by Mr. Dhawan, 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. Spiegel is not required to carry insurance as a paralegal.

• As the insured person, Mr. Dhawan is responsible for paying any expenses order made in favour of State Farm.

• Having been informed of the above, Mr. Dhawan authorizes Mr. Spiegel to represent him in this appeal.

I gave the following reasons for making this order:

Mr. Spiegel's bias submissions raise systemic issues substantially beyond the issues initially in dispute in this appeal. Mr. Spiegel alleges personal bias on the part of the Arbitrators, the Director of Arbitrations ("the Director"), and the Director's Delegates. He also submits that the organization of the Commission gives rise to institutional bias. These are serious allegations. They are likely to prolong the appeal, forcing both parties to incur additional expenses. Consequently, I wish to take this opportunity to remind the parties that s.279(11) of the Act authorizes an adjudicator to award expenses of the proceeding to the insured person or the insurer, in accordance with the criteria set out in the Expense Regulation.⁴

Secondly, I ruled that I would not consider Mr. Spiegel's Charter argument until I was satisfied he had given Notice of Constitutional Question to the Attorneys General of Ontario and Canada, in accordance with Rule 78 of the Code.

I denied Mr. Spiegel's motion for appointment of an adjudicator under the Arbitration Act, 1991 for the following reasons:

Mr. Spiegel moves to have this (and all other proceedings in which he is involved) heard before "'a proper body' (in accordance with the Arbitration Act, 1991)." This is presumably a reference to s.281(1)(c) of the Insurance Act. The Act provides for three alternative forms of dispute resolution following a failed mediation:

Subject to subsection (2),

(f) the insured person may bring a proceeding in a court of competent jurisdiction;

(g) the insured person may refer the issues in dispute to an arbitrator under section 282; or

(h) the insurer and the insured person may agree to submit any issue in dispute to any person for arbitration in accordance with the Arbitration Act, 1991. [underlining added]

In this case, the insured person, Mr. Dhawan, elected to refer the dispute to a FSCO arbitrator under s.282 of the Act. That process begins when the insured person files an application for appointment of an arbitrator. Subsection 8(2) of the Act requires the Director to appoint an arbitrator from a roster of arbitrators who have been recommended by the Committee established under s.7 and selected by the Superintendent; Ms. Allen was appointed in this case. Following the release of the arbitrator's decision, Mr. Dhawan commenced an appeal to the Director under s.283(1) of the Act. The Director then appointed me to hear and decide this appeal. This was an exercise of his power under s.6(4) of the Act "to appoint employees of the Commission or other persons to hold hearings on his or her behalf and to exercise the powers and perform the duties of the Director relating to such hearings."

Mr. Spiegel has made bias allegations in a number of arbitration and appeal proceedings. In a recent letter concerning the appeal of Docoute and Zurich Insurance Company,⁵ the Director responded to Mr. Spiegel's request that all pending arbitration and appeal proceedings be stayed pending a decision by "a proper body" on the bias allegations. The Director's letter is enclosed. "With respect to existing appeals," he confirmed that he had "already made decisions about whether to delegate them and, if so, to whom." He continued:

The appeals are at different stages and involve different underlying issues. After reviewing Mr. Spiegel's submissions, I conclude that the better course is to leave the assignments as they are. Any issues about adjournments or stays can be dealt with by the person assigned to hear the appeal. As in Docoute, if Mr. Spiegel wants to challenge this decision, he will need to look elsewhere. New appeals will be addressed as they are received, and my decision about delegation will include a consideration of the status of the various matters at that time.

The Director has appointed me to hear and decide this appeal. Unlike the Director, I do not have power to appoint or delegate anyone else to dispose of the matter. It follows that I do not have power to refer this appeal, or any part of it, to an arbitrator under the Arbitration Act, 1991. I am statutorily mandated to hear and decide all issues in dispute in this appeal, including any preliminary issues.

Accordingly, Mr. Spiegel may wish to consider the remedies available to him. These include asking me to recuse myself, on the basis of bias, in a preliminary issue hearing, asking me to stay these proceedings pending the outcome of another proceeding, or applying to the Divisional Court for judicial review and a stay of these appeal proceedings.

I note that at the time I made this order, Mr. Spiegel's request for appointment of an arbitrator under the Arbitration Act, 1991 had been dismissed by Arbitrator Allen in Docoute and Zurich. In Persofsky and Liberty Mutual and Tanzos and State Farm, Director Draper expressed doubt about his authority for making such an order.⁶

I anticipated that it might be necessary to adjourn the November 28^th hearing of the merits of the appeal in order to hear the bias motion, but invited the parties' submissions as to how best to proceed. State Farm responded, objecting to any adjournment of the merits of the appeal. Mr. Spiegel did not respond.

The procedural issues raised by Mr. Spiegel's bias motion were the only issues discussed on November 28, 2001. Nothing was resolved. After hearing the parties' submissions, I adjourned the hearing over State Farm's objections. I made a number of procedural orders, and scheduled a telephone conference for January 17, 2002, for the purpose of deciding how to proceed with the remaining issues.

I confirmed my orders in my letter of December 10, 2001, the relevant parts of which follow:

3. Authorization:

Mr. Spiegel has not provided the authorization I required from Mr. Dhawan. He challenges my authority to make this order, or any order, in this proceeding. In answer to my question, he stated that Mr. Dhawan knows about the bias motion. However, he later stated he had not spoken to Mr. Dhawan "for some time." He stated he would contact Mr. Dhawan in order to obtain the authorization, but could not say how long this would take, and speculated it could take "a few months."

If I do not receive the authorization by the time of the telephone conference, I will dismiss Mr. Spiegel's bias motion, and I will hear the parties' submissions as to whether I should also dismiss the appeal brought in Mr. Dhawan's name.

4. Notice of Constitutional Question:

Mr. Spiegel says that he has given Notice of Constitutional Question, as required under Rule 80 of the Dispute Resolution Practice Code,⁷ and that the Attorneys General have declined to intervene. He did not provide any documentation in support of this contention.

If I do not receive proof that Notice has been given, in the proper form, by the time of the telephone conference, I will dismiss Mr. Spiegel's constititutional challenge.

Rule 80 requires a party who intends to raise a constitutional question to serve notice of the question on the other parties and the Attorneys General of Ontario and Canada, at least 15 days before the day on which the question is to be argued. The notice "must clearly set out the reasons for the question and any evidence that the party intends to rely on. "

5. Persofsky Intervention:

Mr. Spiegel's application for intervenor status in Persofsky and Liberty Mutual Insurance Company⁸ has been denied. I dismissed Mr. Spiegel's motion to adjourn the hearing pending an application for judicial review or other proceedings with respect to the intervention decision. I will hear no further requests for an adjournment on this basis unless an application for judicial review of the Director's decision has been made by the time of the telephone conference. If such an application is copied to Mr. Kirby and me in advance of the telephone conference, I will invite the parties' submissions as to whether the motion should be adjourned pending the outcome.

6. Persofsky Documentary Evidence:

The Director has copied me with his letter dated November 29, 2001 responding to Mr. Spiegel's request for copies of the exhibits in Persofsky. I have also been provided with Delegate McMahon's letter concerning this and other preliminary issues in Glinka and Dufferin Mutual Insurance Company.⁹ Delegate McMahon gave Mr. Spiegel until December 14, 2001 to request the documents, and another 5 days after that to deliver a cheque in the prescribed amount. He stated that Mr. Spiegel would not be permitted to file additional materials in support of the motion if he did not comply with these deadlines.

The request letter and cheque should be copied to Mr. Kirby and me. If Mr. Spiegel has not requested and paid for these documents by the time of the telephone conference, no further adjournment will be granted on this basis. If he has completed his request by that time, I will invite the parties' submissions as to whether the documents are likely to be relevant to the motion, so as to warrant an adjournment of the proceeding.

7. Remedy:

Mr. Spiegel moves to have this proceeding (and all other FSCO proceedings in which he is involved) heard before an arbitrator appointed under the Arbitration Act, 1991. He submits that I have no authority to make any order in this or any other proceeding, including the preliminary rulings made in my letter of November 22, 2001 and the rulings I made in the course of the November 28, 2001 hearing and confirm in this letter.

For the parties' convenience, I repeat my ruling set out in my earlier letter: [omitted]

The Telephone Conference on January 17, 2002:

At the hearing, Mr. Kirby submitted that Mr. Spiegel should not be granted an adjournment because of his failure to comply with my orders. I have considerable sympathy for this position. I was prepared to give Mr. Spiegel additional time to comply because of the relatively short time he had to comply with my letter of November 22, 2001. However, I want to take this opportunity to reaffirm that no further adjournments will be granted to allow Mr. Spiegel to prepare, or to satisfy preliminary requirements relating to the bias motion. Accordingly, if he has not complied with my orders by January 17, 2002, I will consider possible remedies, including: dismissing the bias motion, dismissing the appeal in its entirety, and ordering Mr. Dhawan to pay State Farm's appeal expenses. I will make my decision based on the parties' oral submissions made during the January 17, 2002 telephone conference, and will allow no further opportunity for oral or written submissions on preliminary matters.

If Mr. Spiegel complies with all of my orders, I will consider his bias motion. Although I am prepared to consider scheduling another oral hearing of the motion, I am inclined to think that Mr. Spiegel has set out his submissions fully in his written materials and in his oral submissions on November 28, 2001. Consequently, I am considering whether it is more appropriate to deal with Mr. Spiegel's bias motion based on his written submissions, and written submissions to be invited from State Farm. (There is no need for State Farm to respond until I have determined that Mr. Spiegel has complied with my preliminary rulings and that the bias motion can proceed.) The parties should be prepared to address these questions on January 17, 2002.

State Farm requested costs of $500 "thrown away" relating to the November 28, 2001 hearing. Mr. Kirby noted that the motion, lasting 2 1/2 hours, resolved none of the issues in dispute, and resulted only in an adjournment of the entire proceeding. I deferred consideration of this matter. The parties should be prepared to discuss costs of the appeal proceedings to date at the January 17, 2002 telephone conference. On December 12, 2001, I received a package of documents from Mr. Spiegel pertaining to this and other proceedings. Included in the package were letters from the Ministry of the Attorney General of Ontario and from the federal Department of Justice, stating they did not wish to intervene with respect to Mr. Spiegel's application to intervene in Persofsky and Liberty Mutual. In my response of December 17, 2001, I advised Mr. Spiegel that Notice of Constitutional Question must identify the proceeding in which the question is raised, and therefore the Notice given with respect to Persofsky would not suffice. I explained that "[o]ne reason for this is that the Attorneys General might decide to intervene in Dhawan and State Farm, but not in Persofsky and Liberty Mutual."

On December 27, 2001, I received Mr. Dhawan's acknowledgement concerning Mr. Spiegel's representation. The fourth bullet point is amended, as follows:

An order for expenses could be made in favour of State Farm made against Mr. Dhawan at the arbitration stage, and as a named party she is 'potentially' liable for these expenses at the Appeal stage (also subject to a further 'Judicial Review'); [added part is underlined]

Following the five bullet points, there are three paragraphs stating that the acknowledgement is signed "under 'duress' and with 'protest'" and that Mr. Dhawan "has all the confidence in Mr. Spiegel's ability to represent him/her in the upcoming Motion and Appeal proceedings." The acknowledgment also contains a statement that FSCO and its adjudicators "lack thereof authority and jurisdiction to act and make any and all such orders." Despite my concerns about the contents of this acknowledgement, I am prepared to accept it as evidence that Mr. Dhawan chose to be represented by Mr. Spiegel.

On January 4, 2002, Mr. Spiegel faxed me a 46-page document entitled "Formal Notice of Amended Motion/Application (Consitutional Challenge) Before the Director of Arbitration Re: FSCO's (Administrative Tribunal) 'Institutional Bias and/or Reasonable Apprehension of Bias'. My response, dated January 4, 2002, was as follows:

The fax cover sheet lists a number of current proceedings, three of the appeals being delegated to me. I released Tesfai and Allstate Insurance Company of Canada (FSCO P00-00048) on December 21, 2001, and we have closed the file. I understand that Avdalimov and CGU Insurance Company of Canada (FSCO P00-00029) has settled. Accordingly, I will respond only to the issues pertinent to Dhawan and State Farm Mutual Insurance Company.

The fax cover sheets indicate that the package was also faxed to Mr. Sean W. Hanley, Ministry of the Attorney General of Ontario, and Ms. Debora C. Prupas, Department of Justice Canada. Their responses on behalf of the Attorneys General should be filed with the Commission with a copy to Mr. Kirby as soon as they are received.

I have also received an Acknowledgement from Mr. Dhawan, dated December 27, 2001.

Much of the amended motion is a restatement of submissions put forward in your previous materials. A new element is the request that the Director state a case to the Division Court under s.285 of the Insurance Act. As this power has not been delegated to me, I have no power to grant this remedy.

As stated in my letters of December 10 and December 17, 2001, I do not have power to appoint or delegate anyone else to hear this matter, or to refer the matter to an arbitrator under the Arbitration Act, 1991. I am statutorily mandated to hear and decide all issues in dispute in this appeal, including any preliminary issues. Accordingly, as outlined by the Director of Arbitrations in Tanzos and State Farm Mutual Automobile Insurance, (FSCO P01-00017, November 21, 2001), your options are to apply to the Ontario Superior Court of Justice (Divisional Court) for judicial review, seeking a stay of this proceeding, to argue the bias motion before me, or to abandon the bias motion and proceed to argue the merits of the appeal before me. Unless you advise me to the contrary, I will assume you intend to argue the bias motion before me.

During the telephone conference on January 17, 2002, I will deal with the outstanding preliminary issues relating to the bias motion, including:

• whether the Attorneys General have given notice to intervene in the Charter challenge,

• what evidence Mr. Dhawan will introduce in support of the bias motion,

• scheduling a date for an oral hearing or final written submissions on the bias motion, and

• any other preliminary matters relating to the bias motion.

You assert, on page 43, that the tribunal is obliged "to seek out and find additional relevant and material facts" relating to your bias allegation. This misunderstands the powers and mandate of FSCO adjudicators. As the moving party, you bear the responsibility for introducing any evidence of bias you wish to rely on.

You refer to the affidavit of Suzanne Courtlander, admitted in Persofsky and Liberty Mutual Insurance Company, but you have not provided a copy of it. If you wish to introduce it, or any other evidence in this proceeding, you must file a copy with the Commission and serve a copy on Mr. Kirby in advance of the January 17, 2001 teleconference. If there is a dispute as to its admission, I will deal with the matter then.

As I stated in my letter of December 10, 2001, no further adjournment of the bias motion will be granted in order to allow Mr. Dhawan to obtain evidence not requested by January 17, 2002. Nor will the motion be adjourned pending the outcome of the appeal in Persofsky and Liberty Mutual.

Given your numerous lengthy written submissions, I am inclined to think the fairest and most efficient way to deal with the matter (assuming the Attorneys General do not wish to intervene) is to give State Farm an opportunity to provide written submissions in response to the bias motion, after which I will decide the matter based on the written materials without an additional oral hearing.

On January 8, 2002, I was copied with another letter from the Department of Justice to Mr. Spiegel stating they did not intend to intervene in "the above-noted matter." The letter does not include a case reference. No response was provided from the Ministry of the Attorney General of Ontario. However, as Mr. Spiegel provided both Attorneys General with a form of Notice of Constitutional Question, identifying all the appeal and arbitration proceedings in which the question was being raised, I was prepared to accept that he had complied with his obligation to give Notice, subject to giving the Ministry of the Attorney General of Ontario some further short time to respond.

On January 15, 2002, I received a five-page submission from Mr. Spiegel, in which he reiterated his earlier submissions, stated that FSCO is "a forum of 'incompetent jurisdiction'," moved that I recuse myself from the appeal because of bias, and asserted that I and other FSCO adjudicators "lack the authority and jurisdiction to act and/or preside over any and all such proceedings." He also stated,

the Applicant is at present time incapable and unable to pursue, carry, and absorb the expenses and the costs of any and all such further legal proceedings. . . . he/she may consider the option of transferring and advancing his/her case with the 'Superior Court of Justice', when it becomes practical and possible for the Applicant to so to do.

Further, he advised that,

when and if the Applicant would be capable/able and would decide to resume his case with the FSCO's Administrative Tribunal, the Applicant insists that he must be given to opportunity to a comprehensive 'oral hearing'. Which would be in order, to enable the Applicant to present, and obtain any and all such viva voce testimony and evidence'. And, provided the Applicant the opportunity summon his/her witnesses (such as the Director of Arbitration, the Superintendent of the financial Services, and the Minister of Finance himself). As well as, enabling the Applicant to present and argue a substantial number of Arbitrations and Appeal Decisions ("in a substantial number of cases"), exposing them to such analysis and scrutiny on a 'case by case basis' . . ."

Accordingly, Mr. Spiegel requested that the proceeding be "'temporarily placed in abeyance' until such further notice."

As I indicated in my letters of December 10, 2001 and January 4, 2002, the purpose of the telephone conference on January 17, 2002 was to dispose of all outstanding preliminary issues with respect to the bias motion. At the beginning of the discussion, Mr. Spiegel referred to his submissions of January 15, 2002. He stated that he had not yet received the Director's response to his request that the Director state a case to the Divisional Court under s.285 of the Act. The reason for this may be that Mr. Spiegel's request was directed to me, not the Director. On January 16, 2002, the Director refused his requests to state a case on the same issues in two appeals (Docoute and Zurich and Tanzos and State Farm) and two bias applications under s.282(12) of the Act. The Director's letter refers to the request made in this case, and his refusal is general: "I am not persuaded that a stated case is needed or appropriate in this case, or in any of the other cases in which Mr. Spiegel has advanced the argument." As Mr. Spiegel was unaware of these letters, I read the order to him. I reaffirmed that I have no powers under s.285 or s.282(12).

Mr. Spiegel then stated that the telephone conference was "only for discussion purposes," because his client had exhausted his money and he was asking that the appeal be "put in abeyance." Mr. Dhawan has not applied for judicial review in this or any other FSCO proceeding. Accordingly, I reaffirmed my ruling, set out in my December 10, 2001 letter, that the appeal would proceed, and that the bias motion would not be adjourned again. I gave Mr. Spiegel three options:

1. withdraw the appeal,

2. withdraw the bias motion, and proceed immediately to schedule oral submissions on the main issues in the appeal, or

3. proceed with the bias motion before me.

In response, Mr. Spiegel stated, "I declare you bias. I don't accept any of your orders. You're not listening."

Mr. Spiegel then repeated his request for an oral hearing before a private arbitrator to show the bias of FSCO adjudicators, including what he views as their lack of tenure. I put Mr. Spiegel's options to him again. He refused to accept my ruling that I would not state a case or refer the matter to a private arbitrator. He became very angry, and said, "I have nothing to do with it, do what you want. " I then asked him if he was moving to withdraw from the record as Mr. Dhawan's representative. He answered, "no, I'm still on the record."

I ruled that I would not schedule an oral hearing of the bias motion, but would decide the matter based on the written record. The rules of natural justice require that the parties be given an opportunity to make their case before the adjudicator, but they do not require an oral hearing in every case. Tribunals are given considerable flexibility in designing fair procedures that are sensitive to the parties and the issues in dispute. Under Rule 53.5 of the Code, I have discretion to decide the appeal on the record, by way of oral or electronic hearing, or in any other manner I find appropriate. This is consistent with s.5.1 of the Statutory Powers Procedure Act (SPPA), which allows a tribunal whose rules deal with written hearings to hold a written hearing unless "a party satisfies the tribunal that there is good reason for not doing so."

Mr. Spiegel has filed lengthy written submissions. He had an opportunity to present his bias motion in an oral hearing on November 28, 2001, but he declined to do so. I can think of no reason to hold a further oral hearing of the bias motion. Mr. Spiegel has not identified any issue of credibility for which oral evidence is required. He has not explained what evidence he intends to introduce through the Minister, the Superintendent or the Director. To date, he has filed no documentary evidence. Rather, his motion is based on his disagreement with an unspecified set of FSCO decisions, and his views of the Commission's organizational structure. I am not satisfied these issues require an oral hearing.

Moreover, I am troubled by the disparity between the amount of benefits in dispute – some $8,000 – and the duration and complexity of these proceedings so far. The application for arbitration was received two years ago, in January 2000. The first pre-hearing was held in April 2000. A second pre-hearing conference was held in September 2000 to deal with outstanding productions from Mr. Dhawan. The arbitrator rejected Mr. Spiegel's argument that State Farm had to provide releases to enable him to produce the documents he had agreed to produce at the first pre-hearing. He ordered the documents produced forthwith. Mr. Spiegel then brought a motion to suppress evidence obtained after the Insurer's decision to refuse benefits, but the pre-hearing arbitrator ruled it was up to the arbitrator hearing the case to decide what evidence to admit. The arbitration hearing was scheduled for October 2000, but it was adjourned because Mr. Spiegel still had not produced the documents as ordered. Mr. Spiegel then commenced an appeal of the pre-hearing orders, but the Director rejected it, under Rule 46.2 of the Code, as an appeal of a preliminary issue.

The arbitration hearing was scheduled for three days in February 2001, but, as found by the arbitrator, the parties settled the dispute in January. Accordingly, if Mr. Dhawan succeeds in overturning the arbitrator’s decision, this will revoke her ruling that the matter was settled, returning the issue to arbitration for a new hearing. To prolong this matter further by scheduling an oral hearing of the bias motion would be an abuse of the Commission’s process, in my view.

Mr. Kirby submits that Mr. Spiegel shows complete disregard for the orders of FSCO adjudicators and that his conduct is causing these proceedings to descend into utter chaos. He asks me to deny the appeal in its entirety. He seeks an order that State Farm’s appeal expenses be paid by Mr. Spiegel personally, or, alternatively, by Mr. Dhawan. He estimates he has spent 18 hours to date on this appeal, including the 22 hour motion on November 28^th, the telephone conference lasting 13 hours on January 17^th, and many hours to read Mr. Spiegel's lengthy documents. He also seeks reimbursement for the Insurer’s $500 appeal filing fee. Mr. Spiegel submits that I have no authority to award costs in a s.282(12) proceeding. As I stated during the telephone conference, this bias motion was brought in the course of an appeal under s.283(1) of the Act.¹⁰ I have power to award costs under s.282(11), which applies to appeals by virtue of s.283(7).

At the conclusion of the telephone conference, I told Mr. Spiegel that I intended to comment on his conduct in my decision, and that I was considering excluding him from the proceeding under s.23(3) of the SPPA, which I read to him. I expressed my concern about his competence to pursue Mr. Dhawan’s interests in this forum, his contemptuous manner towards me, and his refusal to abide by my orders and proceed to the next step in the appeal. I gave him an opportunity to respond. He submitted that as an administrative tribunal, FSCO should be more lenient about procedural rules. He described himself as a person with limited legal ability and a very simple natural sense of justice.

III. REASONS AND CONCLUSION

Section 10 of the SPPAct establishes a party's right to be represented "by counsel or an agent." Because agents' fees are generally lower than those of lawyers, allowing a party to be represented by an agent facilitates access to justice. It also gives parties freedom to choose to be represented by an agent, or a friend or family member, in proceedings that do not require a lawyer's expertise. However, s.10 is balanced by s.23(3) of the SPPA, which is 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 sets out two grounds for excluding an agent:

• the agent "is not competent properly to represent or to advise the party or witness"; or

• the agent "does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser."

The first ground addresses an agent's duties to the party or witness who is his client, the second his duties to his client and the tribunal. In my view, s.23(3) recognizes that an incompetent agent, or 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. The power to exclude an agent also aids a tribunal in controlling its processes. It should be read in context with s.23(1), which codifies the common law rule that administrative tribunals have ancillary powers needed to control their processes:

23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

In general, the SPPA aims to establish minimal procedural protections and to provide a tool-box of rules tribunals can use to control their processes. Section 21 of the Insurance Act authorizes the Director of Arbitrations to make rules of practice and procedure under s.25.1 of the SPPA.

The Dispute Resolution Practice Code is made under the authority of those two provisions. The power to exclude a non-lawyer agent from a proceeding is reflected in Rule 63.6 of the Code.¹¹

There are few decisions under s.23(3) of the SPPA. However, the role of non-lawyer representatives in various proceedings has been the subject of increasing judicial comment. In the leading case, R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506, the Ontario Court of Appeal began and ended its decision with a plea for paralegal regulation. Romanowicz discussed the role of agents in summary conviction proceedings for criminal offences, some of which are punishable by imprisonment. Despite the difference in the issues and procedures, I believe the principles set out in Romanowicz are applicable in FSCO proceedings.

In considering the responsibility of the trial judge where the accused is represented by an agent, the Court of Appeal broke the issues down into two: has the accused made an informed choice to be represented by an agent rather than a lawyer, and is the agent competent to represent the accused in the proceedings? All parties agreed that trial judges should make some inquiry to satisfy themselves that the accused has made an informed choice, and the Court agreed. My order that Mr. Spiegel provide an authorization signed by Mr. Dhawan was intended to ensure that Mr. Dhawan had made an informed choice to be represented by Mr. Spiegel.

The competence issue is more difficult. The Court concluded that trial judges are not obliged to enquire into the competence of any agent at the outset of the trial, but that judges have inherent power to refuse audience to an agent whose participation jeopardizes the fairness or integrity of the trial. In Glinka and Dufferin Mutual Insurance Company,¹² Delegate McMahon quoted two key paragraphs in the Court’s decision:

In R. v. Romanowicz, at par. 73, the Court stated:

The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused’s constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (e.g. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.

However, the Court also voiced a strong note of caution in relation to any attempt to interfere with a party’s choice of representative, stating at par. 76;

It is not enough that the trial judge believes that the accused would be better off with other representation or that the process would operate more smoothly and effectively if the accused were represented by someone else. Disqualification of an accused’s chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice.

Delegate McMahon accepted that the power to exclude an agent "may be employed at the request of another party seeking to protect its own interest," but remarked that "it is a blunt and severe tool that is not particularly suited to redressing the concerns of an adverse party. Such concerns are better addressed through the judicious use of pre-hearing orders, in-hearing directions, and expense sanctions." In that case, the insurer moved to have Mr. Spiegel excluded at the outset of the appeal hearing on the basis of the arbitrator's finding that he is incompetent to represent insured persons in FSCO proceedings. Delegate McMahon refused this request, noting that the arbitrator had denied Ms. Glinka her arbitration expenses, despite the fact she was partially successful, and had ordered Ms. Glinka to pay part of the insurer’s expenses, as well as its $3,000 arbitration assessment fee, because of Mr. Spiegel's conduct. He ordered Mr. Spiegel to provide an acknowledgement, in the same terms as I have required, before proceeding with the appeal. The insurer repeated its request for an exclusion order at each stage of the bias motion, but Delegate McMahon was reluctant to interfere with Ms. Glinka’s choice of representative, particularly after the required acknowledgement was provided. On December 24, 2001, he dismissed the bias motion and awarded expenses of the motion to the insurer when Mr. Spiegel did not comply with the terms of an interlocutory order.

Like Delegate McMahon, I am mindful of the cautionary comment of the Court of Appeal that "disqualification of an accused's chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice." However, Mr. Spiegel has left me with no alternative.

I am persuaded Mr. Spiegel is not competent to advance his client’s interests. His submissions are incoherent, disorganized, and repetitive. They consist of pages of quotations from Persofsky and Liberty Mutual and other decisions setting out the general principles governing bias, without explaining how these principles apply to the bias motion in this case. Some of Mr. Spiegel's arguments fly in the face of well-established legal principles. For example, he ridicules the idea that a tribunal adjudicator may hear and decide a bias allegation made against it. In fact, a party who chooses not to put its bias case before the tribunal concerned runs the risk that a reviewing court may exercise its discretion to refuse to hear the case on the basis of waiver or prematurity.¹³ In any event, if Mr. Spiegel wishes to argue his bias motion before the courts, he should apply for judicial review, seek a stay of the appeal, and ask the Divisional Court to prohibit FSCO from proceeding on the basis of bias. To date, he has declined to do so.

In addition, Mr. Spiegel persists in his attempts to have the Director or me appoint an arbitrator under the Arbitration Act, 1991, despite a number of rulings denying this relief. This is not a controversial point. If Mr. Dhawan wished to have his claim decided by an arbitrator under the Arbitration Act, 1991, he should have sought State Farm's consent to do so instead of applying for appointment of a FSCO arbitrator. The Director of Arbitrations has power to appoint arbitrators and delegates to hear proceedings under sections 279-288 of the Insurance Act. He does not have power to appoint anyone to hear a proceeding under the Arbitration Act, 1991.

Mr. Spiegel's submissions with respect to the Charter are equally problematic. He does not discuss the issues of tribunal jurisdiction or Charter remedies. He relies on s.11, although his client has not been "charged with an offence." His reliance on s.12, which prohibits "cruel unusual treatment or punishment" can only be described as frivolous in this context. In general, his submissions show no appreciation of the issues raised in Charter litigation.

Without deciding the bias motion, I find it is well beyond Mr. Spiegel's level of competence, making it difficult to engage any legitimate issues it may raise.

Mr. Spiegel also fails to understand or comply with FSCO’s procedural rules, starting with the rule that a party's Notice of Appeal must provide sufficient detail to allow the other party to respond, and that appeals are restricted to questions of law. In this and other files, he has ignored repeated requests that he provide a consistent address, phone number and fax number where he can be reached. In my letter of June 25, 2001, I advised that given his failure to respond, service to any of the three addresses he has used in this appeal would be deemed to be service under Rule 7 of the Code. To cite another example, the time set aside for oral argument on November 28, 2001 was wasted because of Mr. Spiegel’s late motion and his failure to provide the required acknowledgment, give Notice of Constitutional Question, or identify the documents or oral evidence he would lead to prove his case.

Mr. Spiegel then requested a stay or indefinite adjournment pending the outcome of the Persofsky and Liberty Mutual appeal and any judicial review proceeding. I denied this request, for the same reasons it was rejected in Docoute and Zurich, Tanzos and State Farm and Glinka and Dufferin Mutual. Absent a stay order from the Divisional Court, it is within my discretion whether to stay or adjourn an appeal proceeding. In my view, it is not appropriate to grant a stay or indefinite adjournment just because a party disagrees with a ruling and may some day take the matter to a higher court, depending on future developments in the law or a change in his financial status.

Despite my admonition that I would allow him only until the telephone conference on January 17, 2002 to file and serve any documents he would rely upon, Mr. Spiegel has not done so to date. He takes the position that since the Director is in possession of the affidavit of Suzanne Courtlander, admitted in Persofsky and Liberty Mutual, there is no need for him to file and serve the document in this proceeding, in clear contravention of Rule 67.3 of the Code.

A final example of Mr. Spiegel’s failure to comply with FSCO’s procedural rules is that most of his written submissions faxed to FSCO are accompanied by cover sheets that identify a number of addressees, including arbitrators, Director’s Delegates, the Director, the Insurance Ombudsman, and the Superintendent, and refer to a number cases in which the motion is being put forward. This has led to a great deal of confusion as to which submissions are being put forward in which proceedings. Mr. Spiegel’s Notices of Constitutional Question provided to the Attorneys General are similarly generic, making it difficult to ensure the Attorneys General do not wish to intervene in this appeal. I explained the need for case-specific Notices in my letter of December 17, 2001, but this had no effect on the Notices issued by Mr. Spiegel on January 4, 2002.

I agree with Delegate McMahon that "an agent is not to be held to the standard of a lawyer."¹⁴FSCO 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,¹⁵ 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. Mr. Spiegel's conduct was obstructive and extremely discourteous in both motions - the attendance on November 28, 2001 and the telephone conference on January 17, 2002. Despite my repeated admonitions, he interrupted me repeatedly and spoke in a loud and angry voice throughout both discussions. I am most troubled, though, by his open contempt for this tribunal and his expressed refusal to accept its orders. This conduct would necessitate his exclusion even if I had no other concerns.

But I must also exclude Mr. Spiegel because he refuses to take any further step in the appeal, and persists in three contradictory requests for relief, none of which accord with the options I have offered him:

• he insists on an oral hearing of the bias motion (presumably before me), and an indefinite adjournment in order to collect evidence and prepare for the hearing;

• he asserts that I have no authority to proceed, and that the matter should be "put in abeyance" until his client is financially able to proceed in the courts; and

• he refuses to participate any further, but when asked for clarification, states he is neither withdrawing the bias motion or the appeal, or withdrawing as Mr. Dhawan’s representative.

I accept Mr. Kirby's submission Mr. Spiegel's participation "threatens to reduce these proceedings to utter chaos." That would not be fair to Mr. Dhawan or State Farm, and it would bring the administration of justice into disrepute. Accordingly, Mr. Spiegel is excluded from the appeal in order to preserve the integrity of these proceedings.

Mr. Dhawan will have 30 days from the day this decision is released to notify the Commission whether he wishes to proceed with the appeal. If he does not provide notice of his intentions within that time, I will deem the appeal abandoned. Whether or not Mr. Dhawan chooses to proceed with the appeal, I am favourably inclined to order him to pay State Farm's appeal expenses to date. If Mr. Dhawan wishes to show cause why I should not do so, he must advise the Commission accordingly within the 30 days allotted.

February 1, 2002

Nancy Makepeace Director's Delegate

Date

(a) These Rules apply effective May 31, 2001, to all applications for dispute resolution, whenever commenced. (b) Despite Rule 1.6(a), these Rules do not apply to an arbitration proceeding in which a pre-hearing was held prior to May 31, 2001, unless the parties agree or an arbitrator orders that they apply. There is no dispute in this case about which edition of the Code applies, and it makes no difference to my analysis.

1.1 These Rules will be broadly interepreted to produce the quickest, most just and least expensive resolution of the dispute. 1.2 Where something is not specifically provided for in these Rules, the practice may be decided by referring to similar Rules in this Code. 1.3 A defect in form or other technical breach will not make a proceeding invalid. See also Rule 79, "Waiver of Procedural Requirements."

Footnotes

1. 1(FSCO P00-00041, July 3, 2001). This was a motion to admit affidavit evidence led by Liberty Mutual. Further preliminary issue rulings were made on November 21, 2001 (dismissing Mr. Spiegel's application for intervenor status) and January 3, 2002 (admitting affidavit evidence led by the Minister of Finance, an intervenor).
2. 2The Fourth Edition of the Code took effect on May 31, 2001. Rule 1.6 of the new Code is as follows:
3. 3This is a reference to an arbitration hearing unrelated to the present matter.
4. 4Regulation 664, R.R.O. 1990, as amended by O.Reg. 464/96, made under the Insurance Act, s.12. The Expense regulation is appended to the Dispute Resolution Practice Code as Section F. An insured person may also be ordered to pay an additional assessment under s.272(11.2) of the Act if the adjudicator finds that he or she commenced an arbitration that is 'frivolous, vexatious or an abuse of process." [footnote in original]
5. 5(FSCO A00-000027, September 19, 2001), under appeal.
6. 6At p.6 of the decision of July 3, 2001 in Persofsky and Liberty Mutual, and p. 6 of Tanzos and State Farm, (FSCO P01-00017, November 21, 2001).
7. 7Rule 80 of the Fourth Edition of the Code is identical to Rule 78 of the Third Edition.
8. 8(FSCO P00-00041, November 21, 2001).
9. 9(FSCO P01-00002, December 24, 2001).
10. 10The Director rejected this argument in Pocoute and Zurich, in his letter of November 2, 2001. Noting that he had rejected Mr. Spiegel's s.282(12) argument "at least three times," the Director found that "this displays an inability or unwillingness to abide by the rules that may be taken into account in any eventual consideration of expenses in this matter."
11. 11Rule 9.9 of the Fourth Edition of the Code.
12. 12(FSCO P01-00002, March 7, 2001).
13. 13Director Draper considered this issue in Persofsky and Liberty Mutual. He exercised his discretion to hear the case because he found the insurer's failure to raise the issue at arbitration was not tactical.
14. 14At p.9 of the decision of March 7, 2001.
15. 15The first three paragraphs of the Code reflect FSCO's commitment to "everyday justice:"