Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2003 ONFSCDRS 17

Appeal P00-00023

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MS. Z

Appellant/Respondent

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Respondent/Appellant

Before:

Nancy Makepeace

Counsel:

Ms. Z representing herself

Joan Takahashi for Dominion

Hearing Date:

March 11, 2002

APPEAL ORDER

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

1. The appeal is dismissed. The cross-appeal is allowed, and the arbitration order, dated March 7, 2000, is varied by the addition of the following paragraph:

Ms. Z shall repay to Dominion $17,371.20, being the interim benefits paid between September 25, 1998 and July 22, 1999.

2. The parties shall bear their own appeal expenses.

February 14, 2003

Nancy Makepeace Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Z was involved in a car accident on January 8, 1993, when she was hit from behind while stopped at a red light. Although initial assessments indicated she suffered soft tissue injuries of her neck and back, she has not returned to work. Her doctors have diagnosed chronic pain syndrome, depression and post-traumatic stress disorder. The severity and cause of these chronic problems were the main issues in the arbitration hearing.

In a decision dated March 7, 2000, the Arbitrator found that Ms. Z was entitled to weekly income benefits to July 15, 1997, but not beyond that date. He dismissed Ms. Z's claims for a functional home assessment and occupational assessment. He ordered her to repay $21,752.50 of the $80,935 Dominion had paid for psychological counselling by Dr. Judith Schachter. He denied Ms. Z's claim for a special award.

Both parties appeal the decision. Ms. Z submits that the Arbitrator erred in dismissing her claims for ongoing weekly income benefits, a functional home assessment and occupational assessment, the entire cost of her treatment by Dr. Schachter, and a significant special award. She also appeals the Arbitrator's order suspending the interim benefits Dominion had been paying pursuant to an order made by another arbitrator. In its cross-appeal, Dominion seeks an order that Ms. Z repay the weekly benefits it paid in accordance with that order.

While Ms. Z's appeal challenges almost every aspect of the arbitration decision, I conclude it has little merit, and accordingly I will address only the submissions that directly affect the outcome. Dominion is entitled to the repayment order it seeks.

II. THE APPEAL HEARING

The appeal hearing was scheduled for June 12, 2001. However, most of that day was spent hearing the parties' submissions on a number of preliminary issues. I ruled on those issues in my preliminary issue decision, dated September 11, 2001. The most significant issue had to do with Dr. Schachter's testimony. Dominion had produced a transcript of Dr. Schachter's cross-examination and re-examination, but resisted Ms. Z's request that it pay to have her examination-in-chief transcribed. I ruled that the transcript must be produced.

Dominion promptly complied. I instructed the Appeals Administrator, Sudesh Sharma, to contact the parties to schedule an agreed date for resumption of the appeal. Dominion provided several possible dates for March 2002. Ms. Z could not be reached by telephone. On September 25, 2001, Ms. Sharma wrote to the parties, advising that she had been unable to reach Ms. Z, and that unless Ms. Z contacted the Commission by October 26, 2001, the hearing would be scheduled for March 11 and 12, 2002. When Ms. Z did not respond, Ms. Sharma confirmed the March dates by letter of October 29, 2001. Formal Notice of Hearing was issued on November 9, 2001. All correspondence was addressed to the most recent address provided by Ms. Z. The hearing was arranged for London, Ontario for the convenience of Ms. Z.

Ms. Sharma tried to reach Ms. Z by telephone the week before the hearing to remind her that the hearing would proceed on the scheduled dates. Attempts to reach Ms. Z at all known telephone numbers were unsuccessful.

On the morning of March 11, 2002, Ms. Z did not appear. I telephoned all known telephone numbers, without success. A call to a number provided by Directory Assistance was equally futile.

After satisfying myself that Ms. Z had been given reasonable notice of the hearing, I ruled that the hearing would proceed in accordance with Rule 37.7 of the Dispute Resolution Practice Code and s. 7 of the Statutory Powers Procedure Act ("SPPA").¹ The hearing commenced at 11:00 a.m. on March 11, 2002, and ended at 1:50 p.m. that day.

On January 7, 2003, I wrote to the parties to advise that I expected to release my decision by mid-February. In response, Ms. Z wrote on January 17, 2003, saying, "I am writing in response to the letter, but also, because I was unable to present my case in person." In an earlier voice-mail message left with Ms. Sharma, Ms. Z stated that she would take any decision I make to court, because the process is incomplete, and she has not had an opportunity to have any input.

My January 7, 2003 letter, to which Ms. Z responded, was mailed to the same address as the Notice of Hearing. This provides further support for my confidence that Ms. Z received reasonable notice of the March 11, 2002 hearing.

Ms. Z's communications with the Commission, both before and after release of my decision of September 11, 2001, suggest that she feels the process is unfair, and wishes to seek relief in the courts. She applied for judicial review in the spring of 2001, but I am unaware that any further steps have been taken. In the absence of a court order staying these proceedings, I am persuaded that fairness requires me to proceed.

In her recent letter, Ms. Z raises several procedural issues. First, she submits that she did not sign an Application for Arbitration, and therefore was not obliged to participate in this process. Ms. Z's application was signed by her then counsel, Barbara Legate. After April 1999, Ms. Z pursued the appeal represented by Vicki Edgar, another lawyer.

Ms. Z commenced this appeal almost three years ago. The Notice of Appeal was signed by John Watson, who was then her counsel. By the time Dominion cross-appealed, Ms. Z had confirmed that she would represent herself. She prepared and signed the Response to Dominion's cross-appeal herself. Since then, she has argued her case vigorously through numerous letters and phone calls to the Commission, as well as oral and written submissions. At no time has she moved to withdraw. If she had, her motion would likely have been denied because of the lengthy history of the appeal. Moreover, Dominion is entitled to final resolution of its cross-appeal.

Ms. Z also alleges that I denied her request to present her case over several short hearings, rather than one long one, to accommodate her pain, fatigue, and difficulty concentrating. This refers to the first day of the appeal hearing, on June 12, 2001. I see the sequence of events differently. After starting at 10:00 a.m., the morning and early afternoon that day were taken up with the parties' submissions on the preliminary issues raised by Ms. Z. A mid-morning break and lunch break were provided. Ms. Z began her submissions about the merits of her appeal at 2:10 p.m., finishing just before 4:00 p.m. I indicated we would then take a break, and asked the parties how far we would get today. Dominion's counsel indicated she would not complete her submissions that day, but wished to address certain specific points made by Ms. Z. It was at this point that Ms. Z stated she was in pain.

Ms. Z's request to stop the hearing came after she had completed her submissions for the day. She had made serious allegations against Dominion and its counsel, including an accusation of colluding with the court reporter to produce inaccurate transcripts. In my view, fairness required that I allow Dominion and its counsel to respond to those accusations, and to do so promptly, without waiting several months until the hearing could be resumed.²

After the break, Dominion's counsel spoke for about a half hour, and we ended the hearing for the day at around 4:45 p.m. At that time, Ms. Z requested that the resumed appeal hearing be held over two mornings. I agreed, and the hearing was rescheduled for March 11 and 12, 2002. As stated earlier, Ms. Z did not attend.

III. THE APPEAL

A. Scope of the Appeal

As Ms. Z's Application for Arbitration was filed after November 1, 1996, her appeal is restricted to questions of law.³ However, the main issues in her appeal relate to the Arbitrator's assessment of the medical evidence. Dominion challenges the accuracy of many of Ms. Z's statements about the oral evidence given at the arbitration hearing. Apart from Dr. Schachter's evidence, I do not have a transcript of the hearing. This means I have no basis for second-guessing the Arbitrator's description of the oral evidence. My review of the arbitration record reveals no error of law.

B. Causation and Duration of Entitlement

Arbitrator Blackman's decision deals with five main issues: causation, disability, assessments (functional home assessment and occupational therapy assessment), psychological treatment, and special award.

The first issue was causation. The Arbitrator rejected Dominion's submission that Ms. Z's problems are unrelated to the accident. He concluded that while her impairments "are attributable to a complex interaction of factors, . . . . this accident materially contributes to Ms. Z's continuing psychological and physical condition," satisfying the causation test adopted by the Commission.⁴

The next issue was whether Ms. Z was entitled to ongoing weekly benefits after July 15, 1997, when Dominion terminated them. Before the accident, Ms. Z was a social services caseworker. The Arbitrator accepted the evidence of Ms. Z's employer that this was a full-time position with "light physical demands."⁵ Because Ms. Z claimed benefits after 156 weeks of disability, s.12(5)(b) of the SABS-1990⁶ required her to prove that her injuries continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. The Arbitrator was not persuaded she met that test.

Ms. Z submits that the Arbitrator erred in considering evidence about her medical and personal history prior to three years pre-accident. It is clear she was offended by his references to her difficult childhood. Ms. Z also submits that Dominion began questioning the cause of her impairments only when medical experts agreed she was severely disabled. By that time, Dominion had been paying benefits beyond the 156 week mark. Ms. Z argues that the burden of proof is reversed in these circumstances, so that the Insurer must justify its decision to terminate benefits. Further, she submits that the Arbitrator, having accepted that she was impaired as a result of the accident, had no basis for limiting her entitlement to July 1997. She claims this was beyond his authority.

As I understand Ms. Z's position, she recognizes that she has faced some serious personal challenges in her life. She feels she worked hard to overcome them before the accident, and had some success. The Arbitrator's finding that the accident materially contributed to her impairments indicated his acceptance of her evidence on this important point. But this made his finding that she stopped being disabled in the summer of 1997 difficult for Ms. Z to understand, because she believes she is still disabled by the same accident-related impairments she suffered from between 1993 and 1997.

While s. 12(5)(b) gives rise to questions as to who bears the evidentiary burden of proving whether suitable alternative jobs are available to a disabled insured person in any given case, the insured person bears the ultimate legal burden of proving entitlement before and after the 156-week mark.⁷ This does not means insurers can terminate benefits automatically at 156 weeks of disability. The decision to terminate benefits - whether before or after the 156-week mark - must be based on a good faith assessment of all the available evidence.⁸ However, an insurer is not bound by the reasons for termination given in its initial notice, and may develop a different position as new evidence becomes available, subject to requirements of fairness.⁹

Dominion's Assessment of Claim, dated June 6, 1997, states, "[a]ny continuing disability is a result of factors other than the mva., i.e. not a result of injuries sustained in the mva." The Arbitrator's decision can be read as an endorsement of Dominion's assessment. In this case, the causation and disability issues overlap. This is not unusual because common sense indicates the causal contribution of an accident will tend to decline over time, absent permanent injury. Although it may be difficult to pinpoint the time when an insured person's accident-related injuries cease to make a material contribution to any impairments, the Arbitrator must make that decision based on the evidence.¹⁰

There was a great deal of evidence that Ms. Z has serious long standing psychological difficulties that are unrelated to the accident. Because it can be difficult or impossible to sort out the complexities of another person's private life, arbitrators often prefer to rely on objective evidence of the person's level of functioning before the accident. That is what the Arbitrator did in this case:

In 1989, Ms. Z resumed her education, attending a local college and receiving honour roll marks. She subsequently obtained employment as a social services caseworker the year before the January 1993 accident. Ms. Z's hope was that this position would secure her financial independence, allowing her to leave her husband. Ms. Z's thirty-year marriage had been in a state of conflict for several years. Ms. Z's husband is alleged to have been suffering from a psychiatric ailment. Ms. Z states that she was the victim ofspousal physical and psychological abuse. The marriage ended after the accident.

Two months before the accident, Ms. Z admitted herself to a local psychiatric facility. She is noted to have been "suicidal at admission." The medical records note Ms. Z's statements that her employer was trying to "get rid of her" and that the stress from work was the "icing on the cake." This is supported by evidence from her employer and her union. I find that by late July 1992 Ms. Z's employer had decided to document her work and progressively discipline her with the ultimate goal of ending her employment. Ms. Z was discharged from the psychiatric facility, against medical advice, after being hospitalized for more than two weeks.¹¹

This accurately summarizes the medical records relating to Ms. Z's psychological status at the end of 1992. In contrast, the accident did not require a hospital admission. Ms. Z's initial complaints of neck pain, left shoulder pain and headaches were typical of soft tissue injuries. Dr. Lorna Shewfelt, a psychologist who had started treating Ms. Z before the accident, did not mention the accident in her February 4, 1993 consultation note to Dr. Barnett, or her lengthy progress notes prepared between early February and mid-April 1993. Instead, she discussed Ms. Z's family and work problems in detail. On appeal, Ms. Z suggests alternative explanations for this, but gives no evidentiary basis for them. In any event, Ms. Z herself omitted any mention of the accident in a three-page letter she wrote to Dr. Shewfelt in early March, suggesting that her family problems were predominant in her mind.

Given the severity of Ms. Z's non-accident-related problems, another arbitrator might have concluded that the accident played a minor role in her prolonged disability. This was, to some extent, a judgement call. However, the Arbitrator heard the witnesses over a long hearing, and considered a great number of expert reports. He gave thorough and detailed reasons for concluding the accident played a material role. That issue is not under appeal, and I have no reason to second-guess the Arbitrator's assessment.

The Arbitrator rejected Dominion's submission, based on Athey v. Leonati,¹² that Ms. Z's benefits should be reduced because there was a measurable risk that her pre-existing condition would have deteriorated even if the accident had not happened:

While this submission may apply to tort compensation, which allows greater flexibility in fine-tuning appropriate compensation, the issues I must decide arise from a statutorily mandated contract of insurance. I find that the particular provisions in issue in this hearing do not allow benefits to be reduced by the percentage that non-accident factors contribute to any subsequent disability or expense. When assessing causation, the provisions in question require an "all or nothing" approach.¹³

Contrary to Ms. Z's submission, this was not sufficient to establish her entitlement to the benefits claimed. She also had to prove that she was still disabled after July 15, 1997, when her benefits were terminated. Ms. Z relied on the evidence of Dr. Ronald E. Berry, her family doctor, Dr. Robert W. Teasell, a treating physiatrist, and Dr. Schachter.

Ms. Z submits that the Arbitrator disregarded Dr. Berry's opinion. A number of his reports were admitted in evidence, along with his clinical notes and records, and confirmation letters from a rehabilitation counsellor retained by Dominion. Dr. Berry reported that Ms. Z's pre-accident depression did not interfere with her ability to work. In contrast, she was severely depressed after the accident, and suffered from chronic soft tissue pain.

The Arbitrator did not reference Dr. Berry's opinion in his decision. This does not, of course, mean he failed to consider it. Based on my review of Dr. Berry's reports, I expect the Arbitrator found them unpersuasive. One problem is that Dr. Berry did not see Ms. Z until October 1994, almost two years after the accident. Another problem is that Dr. Berry's reports seem to rely mainly on Ms. Z's complaints about her symptoms. I am not persuaded Dr. Berry's evidence was important to the outcome of this case. An arbitrator is not required to refer to every piece of evidence in his reasons:

An arbitrator's statutory duty to give reasons for his or her decision includes an obligation to provide a reasonable explanation for finding a person's testimony unreliable or unbelievable. The reasons must disclose the reasoning process used to arrive at the result. [footnote omitted] That does not mean an arbitrator must detail all the evidence or address every inconsistency. That would not be practical or in keeping with his or her mandate to deal with disputes expeditiously. However, the arbitrator's reasons should provide a coherent explanation why he or she reached the decision, acknowledge important evidence presented by the parties and attempt to resolve serious conflicts in the evidence.¹⁴

Stronger support for Ms. Z's case came from Dr. Teasell and Dr. Schachter. The Arbitrator gave detailed reasons for his findings with respect to their evidence.

Ms. Z submits that the Arbitrator erred in refusing to admit Dr. Teasell's report of January 7, 1999. I disposed of this issue in my preliminary issue decision, finding that while this was a judgement call, there was no error. In any event, I was not persuaded it would have affected the outcome, since Dr. Teasell relied on Ms. Z's subjective perception of disability, and last saw Ms. Z for a January 1997 assessment which was the subject of a report in September 1997. I find no error in the Arbitrator's treatment of Dr. Teasell's evidence:

An examination by Dr. R. Teasell ...in 1997 indicated subjective complaints of tenderness, but a generally good range of motion. Dr. Teasell opined that Ms. Z would have difficulties with prolonged sitting and standing, amongst other activities. Dr. Teasell, however, felt that it was important that Ms. Z try to go back to work, but stated that "she is going to have to accept her pain limitations and appropriately pace and that adaptation process is going to take time. Successful return to work will depend on the workplace environment and improved coping mechanisms."

Dr. Teasell noted that Ms. Z had returned to school (which was actually on a part-time basis). He did not note that in May 1997 she had also begun working part-time doing research for a professor. I find that Dr. Teasell's opinion regarding the Applicant's disability was largely based on Ms. Z's subjective complaints and her opinion as to the limits of her endurance.¹⁵

The Arbitrator also considered the opinion of Dr. O. Maryniak, a physiatrist, who saw Ms. Z at Dr. Berry's request in November 1998. Dr. Maryniak stated that Ms. Z suffered from chronic pain syndrome as a direct result of the motor vehicle accident. However, he recognized there was no known organic explanation for the pain, and that medicine does not know the cause of the syndrome. He did not consider the disability test set out in s. 12(5)(b) of the SABS-1990.

There was ample evidence for the Arbitrator's finding that "there is little, if any, objective evidence of disability." For example, the medical consensus was that Ms. Z did not suffer a brain injury. Further, the diagnostic imaging of Ms. Z's cervical spine after the accident revealed only pre-existing degenerative changes, without any evidence of a new injury.

The lack of objective evidence of injury did not mean Ms. Z was not disabled, but that the Arbitrator, like the doctors who assessed her, had to depend on her description of her problems. As a result, Ms. Z's credibility became important. The Arbitrator's approach on this point was consistent with a long line of Commission cases.¹⁶

Ms. Z argues that the Arbitrator erred in finding her not to be credible with respect to her claimed level of disability, given his acknowledgement that "this may be due to a significant degree to non-accident related psychological factors beyond her control."¹⁷ She states that Dominion's adjuster, Lynn Shuryn, admitted under oath that documentation in Dominion's file proved Ms. Z's co-operativeness, honesty and consistency. Dominion's counsel disputes the accuracy of Ms. Z's account. The Arbitrator does not refer to any such testimony in the decision. Absent a transcript, I am unable to rely on Ms. Z's account of the oral evidence. Anyway, I am not persuaded this would have affected the Arbitrator's finding, which was based on numerous discrepancies in Ms. Z's account given to various doctors.¹⁸

It is important to note that the Arbitrator did not question Ms. Z's honesty or character. He concluded she did not have an accurate understanding about her condition, perhaps because of psychological factors.¹⁹ Not every discrepancy undermines a party's credibility, but in Ms. Z's case, the discrepancies all point in one significant direction: "Ms. Z's tendency to idealize her pre-accident employment and to project her fears about returning to employment onto this accident."²⁰ In contrast, the Arbitrator found that Ms. Z tended to omit or understate her non-accident-related stressors when she described her situation to doctors who assessed her, including Dr. Schachter.

Dr. Schachter's evidence provided important support for Ms. Z's case, and it was the focus of her appeal. It was Dr. Schachter's opinion that a "severe, suicidal clinical depression was precipitated by the accident's impact on Ms. [Z's] body and mind." The Arbitrator's assessment is amply supported on the evidence:

What is notable in Dr. Schachter's report is the understating, or in some cases, the omission of Ms. Z's very troubled non-accident history both before and after this accident. It appears that Dr. Schachter was not fully aware of all of these facts (in part due to Ms. Z's selective memory). Hence, I give little weight to Dr. Schachter's opinion about causation.²¹

Although the Arbitrator was ultimately satisfied that the accident materially contributed to Ms. Z's impairments, this comment suggests he may have approached Dr. Schachter's reports with caution. Later, when discussing the frequency of treatments, he found Dr. Schachter to be "a caring therapist and, if anything, overprotective and defensive of Ms. Z."²² Dr. Schachter's letters to Dominion, her reluctance to produce her clinical notes, the tone of her reports, and her attempt to alter or explain her testimony after release of the Arbitrator's decision, supported this assessment.

The most important discrepancy bore directly on Ms. Z's physical condition in the summer of 1997, when her benefits were terminated:

This is notable in Ms. Z's June 1997 Questionnaire For Disability Benefits under the Canada Pension Plan. The Applicant stated that she could not work due to "depression, post-traumatic stress disorder, chronic pain, fibromyalgia, neck + spine injury, injuries to head," that she was "unable to stand, sit, lift or move for any length of time," or do any volunteer work, hobbies or even socialize. She stated that she was unable to concentrate due to head injuries and pain and, on doctor's orders, could not lift, reach or bend. She was unable to even concede that she was able to see, hear or breathe normally. She stated that she was using a neck brace, crutch and cane and that the doctors believed that "there [would] be no improvement but slow deterioration over the years."

Ms. Z did not advise the Canada Pension Plan in her Questionnaire that she had returned part-time to university the year before and was achieving respectable marks (a considerable achievement given that she had last attended university more than thirty years before). She also did not advise that she was working part-time for a professor who was satisfied with her performance. Her claim to be using assistive devices is not supported by surveillance conducted in April 1997, which shows her walking without the use of any cane or crutches. The investigator also specifically noted that she was not using a cervical collar.

Ms. Z's evidence noted above is highly exaggerated. It specifically contradicts the evidence of her treating psychologist, Dr. J. Schachter. I found Dr. Schachter to be a caring therapist and, if anything, overprotective and defensive of Ms. Z.

Dr. Schachter testified that it was Ms. Z's physical condition that prevented her from working. I find that Dr. Schachter, as a psychologist, has little, if any, expertise in this area. Her opinion was largely based on her observations as a layperson. I give little weight to her opinion.²³

After finding that he could not rely on Dr. Schachter's evidence about Ms. Z's physical impairments, the Arbitrator considered her evidence about Ms. Z's psychological problems. His main reason for not accepting that Ms. Z was psychologically disabled after the summer of 1997 is found in the following paragraph:

In response to the question "[f]or what period would you say that [Ms. Z] was disabled as a result of her psychological condition caused by this accident?", Dr. Schachter stated that it was perhaps a year and a half until "she got going with her studies and so on." In answer to the question as to what year and when in that calendar year that would take us to, Dr. Schachter thought out the period aloud stating that Ms. Z "started [her sessions] in November of '95, so November '96, April or May, maybe the summer of '97." I accept Dr. Schachter's opinion that Ms. Z was not psychologically disabled after that time. Weekly income benefits were terminated by Dominion July 14, 1997. I am not persuaded that Ms. Z was "continuously prevented from engaging in any occupation for which [she] is reasonably suited by education, training or experience" after that date by reason of any psychological or emotional disability.²⁴

Ms. Z submits that the Arbitrator misstated and misinterpreted Dr. Schachter's evidence. This argument is easily answered. The transcript of Dr. Schachter's testimony establishes that the Arbitrator was accurate in his understanding of her testimony. This exchange followed Ms. Legate's re-examination of the witness:

The Arbitrator:

And for what period would you say that [Ms. Z] was disabled as a result of her psychological condition caused by this accident?

Dr. Schachter:

I don't know that I could say it was continuous. Perhaps if I had to give you a time frame maybe a year and a half, till she got going with her studies and so one.

The Arbitrator:

And when would that take us to? What year and where in that calendar year?

Dr. Schachter:

Well. I started with her in November of '95, so November '96, April or May, maybe the summer of '97. But again, I have to say that I'm kind of artificially telling you this time frame. Certainly in the first year it was really impossible, it would've been impossible. And then, you know, gradual increases in strength and stamina and memory and concentration, although they still get easily disrupted I think that when the stresses are eliminated she would be able to work you know, full-time if it was not for the pain, just on the basis of her functioning.

The Arbitrator:

Just so I'm clear, are you saying that in the summer of 1997 [Ms. Z] would've been able to work but for the pain she was experiencing?

Dr. Schachter:

If we're talking about the depth of the depression, by that time it had lifted, but it was a reaction to the accident, the severity of it. I mean there had been - you know, she may, she may have had - she had depression as was, you know, there. That's undeniable. But it was fleeting, it was more like the common variety depression that most people have from time to time. Didn't prevent her from working then. [Arbitrator's questioning of Dr. Schachter, January 28, 1999, pp. 40-41.]

Ms. Z relies on Dr. Schachter's letter of January 4, 2000 to the CPP Review Tribunal, in which she says her testimony was misconstrued. In my preliminary issue decision, I refused to admit this letter because it was "an attempt to repair or amend oral evidence given under oath." That decision ended with my ruling that no further submissions would be accepted on any of the issues disposed of in that decision. The issue is closed.

Making a somewhat contradictory argument, Ms. Z submits that Dr. Schachter was not paying close attention to the questions posed by Dominion's counsel, because of her concern about production of her clinical notes and the effect this would have on her therapeutic relationship with Ms. Z. Dr. Schachter's remarks in this exchange do not strike me as absent-minded or distracted. On the contrary, they strike me as careful and well-considered, and they are consistent with the overall tenor of Dr. Schachter's testimony.²⁵

In any event, Dr. Schachter's testimony was not the only basis for the Arbitrator's decision. He relied on other persuasive evidence about Ms. Z's condition in the summer of 1997: Dominion's surveillance obtained in early 1997, the insurer examinations conducted in May 1997 by Dr. John O'Reilly, a physiatrist, and Dr. Donald Young, a neuropsychologist, and the fact Ms. Z had started university in September 1996 and begun working part-time for a professor in the spring of 1997. Although Ms. Z presented evidence going the other way, the Arbitrator had more than sufficient evidence to support his finding that Ms. Z did not prove her entitlement to ongoing benefits.

Two final submissions deserve mention.

Ms. Z submits that the Arbitrator's decision that she is not entitled to weekly benefits after July 1997 is inconsistent with his acceptance of her claim that she continued to need psychological therapy at that time. Pursuant to s. 6 of the SABS-1990, an insured person is entitled to all reasonable psychological expenses resulting from the accident within the benefit period. There is no need to prove disability. An insured person may be entitled to ongoing medical benefits, even after returning to work, in order to maintain or improve function or reduce pain and other symptoms. It is not unusual for insured persons to satisfy the requirements of s. 6 but not s. 12(5)(b). I find no error.

Finally, Ms. Z relies on the finding of the CPP Review Tribunal, dated May 1, 1999, that she has a "severe and prolonged" disability and is therefore entitled to Canada Pension Plan Disability Benefits. The decision was not put before the Arbitrator, but I admitted it as "fresh evidence" on appeal in my preliminary issue decision. In doing so, I stated I was "influenced by the fact that the evidence considered by the Tribunal was evidence that was also before the Arbitrator, apart from Dr. Teasell's January 7, 1999 report. The weight to be given the decision is a matter for submissions." As stated above, that last report by Dr. Teasell added nothing to his previous reports. The Review Tribunal relied on the opinions of Dr. Berry, Dr. Teasell and Dr. Schachter.

The Arbitrator considered the same evidence - and much more. It does not appear that Ms. Z's evidence before the Review Tribunal was subjected to cross-examination or challenged by evidence presented by an adverse party. For example, the Arbitrator relied on Dominion's surveillance evidence and evidence about Ms. Z's university studies in finding that Ms. Z had exaggerated her disability in the Questionnaire submitted in support of her application for CPP benefits. It does not appear the Review Tribunal had the benefit of this evidence. I am not persuaded the Review Tribunal decision warrants reversal of the Arbitrator's decision.²⁶

C. Dr. Schachter's Fees

Dr. Schachter treated Ms. Z from November 1995 until February 1999, seeing her about three times a week. Dominion paid Dr. Schachter's accounts pursuant to s. 6 of the SABS-1990, which says that an insured person is entitled to all reasonable psychological expenses resulting from the accident within the benefit period.

By letter dated June 4, 1997, Dominion gave notice that it would only pay for another four weeks of treatment, to allow Ms. Z to make the transition to treatment with her family doctor. Dominion took the position that Ms. Z needed psychological treatment because of characterological problems, not because of the accident, and that Dr. Schachter's treatment was not reasonable because it had not proven effective. By the time benefits were terminated in August 1997, Dominion had paid $45,817.50 to Dr. Schachter. Ms. Z continued to see Dr. Schachter three times a week. Dominion resumed paying Dr. Schachter's fees on February 16, 1998, eventually paying another $35,117.50 for Ms. Z's treatment from August 1, 1997. This was paid "pending resolution of the dispute" as required by s. 6(7) of the SABS-1990. Dominion sought repayment of all the fees it paid after August 1, 1997.

The Arbitrator accepted that Ms. Z continued to need treatment but concluded that the frequency of sessions was unreasonable. He found that it was reasonable for Ms. Z to see Dr. Schachter on a basis of decreasing frequency, averaging once a week between August 1, 1997 and February 18, 1999. This came to roughly 81 sessions, totalling $13,365. He ordered Ms. Z to repay the balance of $21,752.50. Since the repayment order was authorized by s. 6(7), rather than s. 27 of the SABS-1990, it did not attract interest.

Ms. Z submits that the Arbitrator lacked authority to order her to repay Dominion for fees paid to Dr. Schachter. She says the Arbitrator conceded that point, but went on to do it anyway. She submits this was inconsistent with his finding that Dominion should continue to pay for her treatment. She also argues the Arbitrator had no authority to decide what treatment she needed, and how often.

There is little merit to these submissions. Section 6 of the SABS-1990 requires insurers to pay for "reasonable expenses" for psychological treatment resulting from the accident. The choice of treatment belongs to the insured person and her treating practitioners. A different issue was before the Arbitrator - whether Dr. Schachter's fees were "reasonable expenses," obliging Dominion to pay them.

Referring back to his earlier causation ruling, the Arbitrator found that Ms. Z needed psychological treatment as a result of the accident. He also dismissed Dominion's submission that the treatment was not effective. He accepted that the relief of pain is a legitimate medical and rehabilitative goal. In any event, he found there were "objective standards of improvement," namely, Mr. Z's return to university and her part-time research job.

However, reasonableness also concerns the duration and frequency of treatment. The Arbitrator accepted that "some measure of ongoing treatment" was reasonable until February 1999, when Dr. Schachter stopped treating Ms. Z, but he concluded the evidence did not support a continued need for sessions three times a week. In my view, he had compelling evidence for this conclusion:

Dr. Schachter testified that by the summer of 1997, "the depth of [Ms. Z's] depression" had lifted. Dr. Schachter stated that, nonetheless, she continued treating her three times weekly because Ms. Z's gains needed to be consolidated, her functioning remained fragile and she was susceptible to suicidal depression.

I do not accept this explanation. Logically, one would have expected, with improvement, a "weaning" from Dr. Schachter's treatment. This certainly was the expectation of Dominion's experts who opined on Ms. Z's emotional condition. I find the more logical explanation as to why the treatments continued at the same frequency to be given by Dr. Young who testified that someone such as Ms. Z is very dependent, often insatiable and impossible to fulfill. When such a person does not achieve their sense of fulfilment, there may be an effort to manipulate, sometimes through suicide threats. Dr. Schachter's notes indicate that Ms. Z strongly resisted any reduction in the frequency of treatment or referral to a psychiatrist. The most dramatic illustration of this dependency was when Dr. Schachter gave Ms. Z two months warning that she would be going overseas for several weeks. Dr. Schachter's notes indicate Ms. Z being angry that this had been "sprung" on her and that she was unprepared. Ms. Z's son testified that the Applicant, as a result, in order to be able to e-mail Dr. Schachter overseas, bought a $5,000 computer that she had no capacity to understand and which I find she had little capacity to afford.

This suggests that Dr. Schachter lost control of the frequency of sessions to a patient with significant psychological problems. I share the concern of Dr. Travis that this level of treatment induced substantial iatrogenic dependency. [at pp. 23-24]

This finding left the Arbitrator with a difficult question - how many sessions would have been reasonable? Both parties made submissions. The Arbitrator's ruling involved an element of discretion, and another arbitrator might have concluded that Dominion was obliged to pay for more sessions - or fewer. However, I am satisfied the Arbitrator's conclusion was supported by the evidence, and Ms. Z has not persuaded me his decision was unfair.

The next issue was repayment of the overpaid fees. The Arbitrator found that Dominion had written Ms. Z's counsel in early June 1997, advising it would only pay for another four weeks of treatment. Despite this, Ms. Z continued to see Dr. Schachter on the same basis as before. The Arbitrator noted that Dominion reiterated its position in a letter to Ms. Z's counsel, copied to Dr. Schachter, in October 1997. Dr. Schachter testified before the Arbitrator that she understood she might have to give the money back. Dominion's request for repayment was also set out in the pre-hearing letter of August 14, 1998.

The Arbitrator found that he did not have jurisdiction to order Dr. Schachter to repay the overpaid amounts because she was not a party, and participated only as a witness. That is a correct statement of the law. He ordered Ms. Z to repay Dominion. Although insurers often make direct payments to treating practitioners, it is the insured person who receives the benefit of treatment and who is liable to repay any overpaid benefits. Any outstanding disputes between Ms. Z and Dr. Schachter are beyond the Commission's jurisdiction.

I find no error in the Arbitrator's repayment order.

D. Special Award

The Arbitrator was not satisfied that Dominion's delay in paying Dr. Schachter's bills between August 1997 and February 1998 warranted a special award, given that the outstanding accounts "were then paid and continued to be paid through to the arbitration hearing, despite Dominion's legitimate concerns . . ."²⁷ On appeal, Ms. Z restated the submissions she made at arbitration. I am not persuaded the Arbitrator erred.

More generally, Ms. Z submits that Dominion breached its contractual agreement with her by denying her claim for further benefits. She says that Dominion deliberately set out to destroy her credibility, falsely accusing her of being unco-operative and untruthful. She claims that Dominion's handling of the matter prevented her from obtaining early treatment and rehabilitation, and caused her condition to get worse.

Ms. Z also submits that Dominion is in contravention of the Canadian Charter of Rights and Freedoms in discriminating against her and endangering her life. The fatal objection to this submission is that Dominion is not part of the government.²⁸ In any event, while I can imagine circumstances in which denial of benefits could amount to discrimination, I am not persuaded that happened in this case. Dominion disputed Ms. Z's claim to ongoing benefits, as it was entitled to do. Ms. Z commenced arbitration, exercising her right under the Insurance Act. She bore the burden of proof. The Arbitrator considered all the evidence, but he was not persuaded that Ms. Z satisfied the SABS criteria for ongoing entitlement beyond July 1997.

Ms. Z alleges that Dominion conducted surveillance on her "for 4 years and more, with involvement of a dozen investigation firms." She says that "family, friends, teachers, lawyers, doctors and therapists were harassed, mislead [sic], pressured" and her life was made "a living hell." She alleges that Dominion used illegal means to deny her claim at any cost, and treated her like a criminal. Ms. Z has not established a factual foundation for these allegations.

Finally, Ms. Z alleges that Dominion's independent examination reports - by Drs. Young, Travis and O'Reilly - were obtained illegally and in contravention of the doctors' agreement with Ms. Z not to disclose the reports. Insurer examinations are authorized by s. 23(2) of the SABS-1990. This authority comes with limits and obligations, and the many Commission decisions about insurer examinations attempt to balance the insured person's right to privacy and the insurer's right to assess its insured's medical condition in order to adjust the claim. Turning to Ms. Z's specific allegations, Dr. Travis' report of December 18, 1998 indicates that he refused to proceed with the assessment in light of Ms. Z's attempt to impose this condition. There is no reference to any such agreement in the reports of Dr. Young and Dr. O'Reilly.

The Arbitrator also dismissed Ms. Z's claim that Dominion unreasonably terminated her benefits in March 1997. He found that while Dominion's Assessment of Claim referred to terminating benefits, this was just "an error in semantics": benefits had actually been suspended, not terminated. There was no error here, since Dominion did reinstate benefits, ultimately terminating them in July of that year.

An arbitrator's findings with respect to special award attract considerable deference because a finding of unreasonableness is "highly dependent on the arbitrator's view of the evidence."²⁹ Dominion's conduct of the claim fell short of perfection, but that is not the standard. Considering all the circumstances, I am not satisfied the Arbitrator erred.

E. Procedural Fairness and Bias

Ms. Z submits that the Arbitrator treated her unfairly and was biased against her. She argues that his bias was shown by his assessment of the evidence and by various orders he made in the course of the hearing. She relies on various sections of the Charter. Ms. Z's allegations are serious but unsubstantiated.

(i) April 26, 1999

Ms. Z submits that on April 26, 1999, the Arbitrator refused her request for an adjournment, in order to retain new counsel, and ordered her to represent herself. She says that he "fined" her for delaying the process, and cut her weekly benefits that day. She submits that he erred in proceeding with the case although she was without counsel.

The hearing record and the correspondence file support Dominion's history of the proceeding. When the hearing began in January 1999, Ms. Z was represented by Barbara Legate, a lawyer. The first two days of hearing were largely taken up with the dispute over Dominion's request for production of Dr. Schachter's clinical notes. The Arbitrator ordered Dr. Schachter to bring her notes when she appeared to testify when the hearing resumed. Dr. Schachter's evidence was completed on January 28, 1999, and the hearing was scheduled to resume on April 26, 1999. On April 23, 1999, Ms. Legate advised that Ms. Z had dismissed her.

On the morning of the resumed hearing, Ms. Legate moved to withdraw from the record. Rather than dealing with the motion himself, Arbitrator Blackman arranged to have it heard by Arbitrator Evans. Presumably, he did this to ensure that he would not hear any evidence about the breakdown of the relationship between Ms. Z and Ms. Legate that might affect his view of the merits of the arbitration. Arbitrator Evans granted Ms. Legate's motion to withdraw. When Arbitrator Blackman resumed the hearing, Ms. Z requested an adjournment to retain new counsel. This was granted, and May 14, 1999 was set as the date for a telephone conference to set new hearing dates.

Ms. Z retained new counsel, Vicki Edgar, a day or two beforehand. Ms. Edgar participated in the telephone conference, and the parties agreed the hearing would resume on June 1, 2 and 3, 1999. On May 17, 1999, Ms. Edgar requested an adjournment of these dates because Ms. Z would be unavailable. Although Arbitrator Blackman denied the request, another arbitrator later granted it, adjourning the hearing to June 7, 8 and 9, 1999. When the hearing resumed on those three days, Ms. Edgar represented Ms. Z. On June 22, 1999, Arbitrator Blackman heard the parties' closing submissions by telephone conference. Again, Ms. Edgar represented Ms. Z. In short, at no time was Ms. Z forced to proceed with the hearing without legal representation. Further, there is no record that Arbitrator Blackman imposed a "fine" on Ms. Z at any time.³⁰

(ii) Control of the Hearing

Ms. Z alleges that the Arbitrator interfered with Ms. Legate's ability to present her case by limiting the number of witnesses she could call. According to Ms. Z, her counsel wanted to call 22-26 witnesses on her behalf, but reduced the number to three under pressure from the Arbitrator. I am unable to verify this as I do not have a transcript of this conversation. However, I note that the hearing before Arbitrator Blackman extended over some ten days in person, as well as several motions by telephone conference. The exhibits and written submissions fill two boxes. In contrast, the average Commission arbitration hearing lasts two to four days.

This is not to suggest that Ms. Z forced an unduly lengthy hearing; Dominion also pursued its case vigorously, and the parties were unable to agree on much at any stage of this proceeding. As the hearing started, the Arbitrator was likely mindful that Ms. Z's Application for Arbitration had been filed a year earlier, and four other arbitrators had already been involved in pre-hearing conferences about the case. In addition, Dominion had appealed Arbitrator Palmer's interim benefits order. The procedural complications continued through the six months it took to complete the hearing before Arbitrator Blackman.

Arbitrator Blackman's job was to complete the hearing in the quickest, most cost-effective and most just way possible. Both by common law and pursuant to the Statutory Powers Procedure Act and the Dispute Resolution Practice Code, he had authority to make procedural orders as necessary to control the process. This included requiring the parties to present their evidence efficiently, and focussing the hearing to ensure both parties received a full and fair hearing. I am persuaded he did so.

(iii) Dr. Schachter

Ms. Z submits that the Arbitrator "bullied" Dr. Schachter into producing her clinical notes, and did so without a court order. She submits that he misled Dr. Schachter, telling her no one would see the notes and they would not be made an exhibit. She alleges the notes were then copied and distributed by Ms. Takahashi and Dominion's representative. The notes were entered into evidence as Exhibit 35. Ms. Z submits that the disclosure of the notes destroyed her therapeutic relationship with Dr. Schachter. I dealt with this matter exhaustively at pages 14-18 of my preliminary issue decision. I will not consider the issue further.

Ms. Z also alleges that Arbitrator Blackman harassed Dr. Schachter off the record. This is a serious allegation, but it was presented without particulars or proof. I am unable to confirm what was said off the record, but I have reviewed the transcript of Dr. Schachter's evidence in full. It reveals nothing remotely approaching harassment by the Arbitrator or anyone else.

This allegation is without merit.

(iv) Some General Comments on Bias

In May 1999, as the arbitration hearing neared its end, Ms. Z contacted Elisabeth Sachs, then Director of Arbitrations, asking that Arbitrator Blackman be removed from the case. Subsection 282(12) of the Act states:

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.

It appears that the immediate trigger for the application was Arbitrator Blackman's refusal of Ms. Z's adjournment request, as Ms. Sachs noted at the outset of her letter that the request had subsequently been granted. Ms. Z also objected to the Arbitrator's earlier order that Dr. Schachter bring her clinical notes with her to the hearing. Director Sachs dismissed the bias application, stating that "arbitrators have control of the process before them with discretion as to the amount and nature of evidence to be called and conduct of the action having regard to the principles of natural justice."

In her letter to Director Sachs, Ms. Z referred to Dominion's successful motion to remove Arbitrator Palmer from the proceeding as a precedent. Delegate Draper rejected Dominion's appeal, but found that "the combination of the procedural confusions, the rulings made by the arbitrator, and the contentious nature of the September hearing are sufficient to establish a reasonable apprehension of bias." The main problem was "the uncertain interaction between the arbitrator's role as the hearing arbitrator and her involvement with the preliminary issues."

Bias allegations tend to corrode all participants' confidence in the adjudicative process.³¹ Ms. Z has continued to allege bias on the part of Arbitrator Blackman and others who have been involved in her case. As Director Sachs stated in her bias ruling,

An allegation of bias is a serious matter and not to be made lightly, as noted in several appeal decisions beginning with Kahkesh and Lloyd's Non-Marine Underwriters, (OIC P-000378, August 19, 1992). Shortly put, the test is whether an arbitrator has closed his mind to being persuaded, or has prejudged the issues thus precluding acceptance of representations to the contrary, and thereby denied (or is likely to deny) a party a fair hearing.

Ms. Z may disagree with the outcome of her arbitration and appeal, but I do not accept that these decisions reflect any bias against her. On the contrary, Commission adjudicators have gone some distance to accommodate Ms. Z's concerns. For example, Arbitrator Blackman devoted a great deal of time in an effort to reach a creative resolution of the heated dispute about Dr. Schachter's clinical notes, which were clearly relevant to the issues in dispute. For my part, I reversed several of Delegate Naylor's earlier orders, including ordering Dominion to produce the transcript of Dr. Schachter's examination-in-chief. Although no one expects Ms. Z to be happy with the outcome of her case, she should know it reflects the honest efforts of various adjudicators to apply the law to the evidence after a full and fair hearing.

V. INTERIM BENEFITS: APPEAL AND CROSS-APPEAL

On September 25, 1998, Arbitrator Palmer allowed Ms. Z's motion for payment of interim weekly benefits of $434.28 per week. She found that Ms. Z had established, "on a prima facie basis, that is, at first glance, that she is entitled to ongoing weekly income benefits as a result of the accident." She ordered Dominion to pay the benefits, starting September 25, 1998, "until a further order of an arbitrator."

The arbitration hearing commenced on January 6, 1999 before Arbitrator Blackman. Oral evidence was concluded on June 3, 1999, final exhibits were entered on June 22, 1999, and statements of law were received on July 5, 1999. On July 8, 1999, Arbitrator Blackman suspended Arbitrator Palmer's interim benefits order, effective July 22, 1999.

In his final decision, dated March 7, 2000, Arbitrator Blackman dismissed Ms. Z's claim for weekly benefits after July 14, 1997, the date they were terminated by Dominion. However, he made no ruling with respect to repayment of the interim benefits Dominion had paid in accordance with Arbitrator Palmer's order. His decision does not refer to the issue, and it appears he did not hear submissions on it.

On appeal, Ms. Z submits that Arbitrator Blackman had no authority to reverse Arbitrator Palmer's order. In its cross-appeal, Dominion seeks an order for repayment of the $17,371.20 it paid pursuant to Arbitrator Palmer's order.

I do not find it necessary to address Dominion's submissions with respect to the equitable doctrine of unjust enrichment. Arbitral jurisdiction to order payment of interim benefits is found in s. 279(4.1) of the Act, which says:

The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.

Interim orders are, by their very nature, subject to an arbitrator's further or final order.³² Arbitrator Palmer cautioned the parties accordingly:

I emphasize to the parties that monies paid under interim orders are subject to the final order of an arbitrator and an arbitrator may order interim benefits to be repaid, after a full hearing on the matter.³³

The purpose of interim benefits orders is to protect the flow of benefits where the insured person can show she is likely to succeed in proving entitlement. They are appropriate, in these cases, because litigation delays might otherwise impose financial hardship on applicants with meritorious claims. They are subject to the final order of the arbitrator, who may, after hearing all the evidence, order repayment of interim benefits paid.³⁴ It is because of the risk of a substantial repayment order that interim benefits are awarded only in a few cases.

Ms. Z submits that Arbitrator Blackman should not have revisited Arbitrator Palmer's interim benefits order until he made his final order. She points to the wording of s. 279(4.1), which authorizes "interim orders pending the final order." [emphasis added] However, this does not prevent an adjudicator from reviewing an interim benefits order from time to time before his or her final decision on the merits of the case. In fact, changing circumstances may require a second look. For example, an insured person who refuses to comply with production obligations or otherwise delays the proceedings runs the risk of having interim benefits suspended. Similarly, an insurer who seeks a last-minute insurer examination, necessitating an adjournment of the hearing, may be ordered to pay interim benefits in the meantime. In this case, Arbitrator Palmer foresaw that it might be necessary to review her order. Her order is clear: "Dominion shall pay interim weekly income benefits to Ms. Z . . . until a further order of an arbitrator."

Ms. Z submits that Arbitrator Blackman's decision to suspend her interim benefits before he gave his final decision showed that he had closed his mind about the case and was biased against her. I do not agree. Far from rushing to judgement, the Arbitrator had heard all the evidence and submissions from both parties by the time he suspended the order. His letter of July 8, 1999 clearly indicated his findings on several key points, including "that Ms. Z is not a reliable witness specifically regarding her claimed level of disability." It was probably his anticipation of workload-related delays in issuing his final decision that motivated his decision to suspend the interim benefits order "to allow both parties an opportunity to put their affairs in order."

Ms. Z's appeal on this point is dismissed.

Turning to the cross-appeal, the only question is whether Dominion lost its opportunity to obtain a repayment order by failing to make the request before Arbitrator Blackman. There are two potential concerns. The first is ensuring that Ms. Z had reasonable notice and an opportunity to respond to Dominion's request. Though the issue did not arise in arbitration, Ms. Z was given an opportunity to make submissions on repayment, and did so on August 10, 2000, in response to Dominion's submissions in the cross-appeal.

A more pressing concern relates to the limits of the appellate role. In hindsight, this issue should have proceeded as an application under s. 284 of the Act, giving the parties an opportunity to argue the issue before Arbitrator Blackman. However, timing precludes making such an order now. Ms. Z's accident happened ten years ago, she applied for arbitration six years ago, and the appeal and cross-appeal were commenced in April 2000, almost three years ago. In my view, any further delay in finally resolving the parties' disputes would be unjust.

The arbitrator's order will be varied by the addition of a paragraph ordering repayment of the interim benefits paid.

Dominion seeks interest on the interim benefits, further to s. 27(4) of the SABS-1990, which states, "[t]he insurer may charge interest from the day the amount owing to the insurer under this section is determined at the bank rate on that day." As Arbitrator Blackman pointed out, s. 27(4) of the SABS-1990 authorizes insurers to charge interest only where benefits are repayable "under this section," namely s. 27. I am not satisfied that s. 27 applies. Repayment of interim benefits is ordered under s. 279(4.1) of the Act, which does not provide for an order of interest. The omission is consistent with the remedial purpose of that provision.

VI. EXPENSES OF THE APPEAL AND CROSS-APPEAL

Section 282(11) of the Act gives Commission adjudicators discretion to order payment of either party's expenses, based on prescribed criteria.³⁵

The outcome of the proceeding is an important consideration, especially on appeal. Both parties focussed heavily on Ms. Z's appeal, with Dominion's successful cross-appeal taking much less time. I find that Ms. Z's appeal had very little merit, but it was not frivolous. The problems with Dr. Schachter's evidence and the overlap between causation and disability issues raised legitimate, though fact-based, issues for Ms. Z.

Another relevant factor is conduct of a party "that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders." I find that Ms. Z's conduct of the appeal tended to prolong and obstruct the proceeding. For example, Ms. Z has by turns urged the Commission to expedite her case and refused to participate. She has refused to accept adverse rulings, instead making unsubstantiated bias allegations. However, it is my impression that Ms. Z's conduct relates to her psychological problems and is not entirely within her control. Moreover, Dominion's adversarial conduct of the case has not facilitated the most cost-effective resolution of it. For example, Dominion's position on the disputes I disposed of in my preliminary issue decision, especially the Schachter transcript, greatly offended Ms. Z and prolonged the appeal but made little difference to the outcome.

While access to justice continues to be an important consideration in awarding arbitration expenses, an unsuccessful appellant is at considerable risk of an expenses order in favour of the respondent. The reason for the different approach in appeals is that the parties, by that stage, have had the benefit of a full hearing before an arbitrator and a decision with written reasons. This does not mean access to justice has no place in appeal expenses. In this case, it is a significant consideration because of Ms. Z's psychological problems, her difficult personal situation, and the fact she did not have counsel on appeal. Given the substantial repayment orders Ms. Z now faces, I am not willing to penalize her further.

Considering all these factors, I decline to make an expenses order. The parties shall bear their own appeal expenses.

February 14, 2003

Nancy Makepeace Director's Delegate

Date

Footnotes

1. 1Section 7 of the SPPA states, "Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding."
2. 2I dismissed the allegations in my preliminary issue decision.
3. 3Subsection 283(1) of the Insurance Act. See, most recently, Coles and Dominion of Canada General Insurance Company, (FSCO P02-00018, December 18, 2002), at p. 3.
4. 4Arbitration decision, p. 10.
5. 5Arbitration decision, p. 11.
6. 6The Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, Ontario Regulation 672/90, amended by Ontario Regulations 660/93 and 779/93.
7. 7For example, Murray and Wawanesa Mutual Insurance Company, (OIC A-003224, August 23, 1996), Henriques and Motor Vehicle Accident Claims Fund, (OIC P97-00002, August 21, 1997) and H.K. and Canadian Surety Company, (FSCO P98-00041, February 29, 2000).
8. 8For example, Maas and State Farm Mutual Automobile Insurance Company, (OIC P96-00080, December 8, 1997).
9. 9Tesfai and Allstate Insurance Company of Canada, (FSCO P00-00048, December 21, 2001), at pp. 10-11.
10. 10A similar problem arose in Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company, (OIC A-003929 and A-005693, November 7, 1994). On appeal from my arbitration decision, the insured person claimed that none of the medical evidence admitted in the hearing supported the particular termination date I had ordered. Director's Delegate Draper confirmed my decision, (OIC A-003929 and A-005693, December 11, 1995), stating:
    The determination of disability cannot be done with absolute precision, particularly in cases involving limitations based on pain. Although entitlement to weekly income benefits must be based on the test established in the Schedule, there is scope for the arbitrator to consider all of the evidence and reach a result that is fair in the particular circumstances of the case. While the appellant may feel that the October 1, 1992 cut-off is arbitrary, I conclude that the result is just and should not be disturbed.
11. 11Arbitration decision, p. 4.
12. 121996 CanLII 183 (SCC), 140 D.L.R. (4th) 235 (S.C.C.)
13. 13Arbitration decision, p. 10.
14. 14Kasap and Allstate Insurance Company of Canada, (OIC P96-00071, March 13, 1998). Similar statements of the law are found in any number of court and tribunal decisions.
15. 15Arbitration decision, pp. 11-12.
16. 16See Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, September 29, 1997).
17. 17Arbitration decision, p. 12.
18. 18Arbitration decision, pp. 12-16.
19. 19See, for example, Delegate Naylor's statement of the law in Sacco and Zurich Insurance Company, (FSCO P96-00063, September 25, 1998), at p. 5:
    Arbitrators must deal with issues of credibility and the weight that should be given to the evidence. They may accept all, part or none of a person's evidence. Where witnesses disagree, the arbitrator must decide which version, if any, to accept. Assessing the reliability of evidence is a central aspect of the arbitrator's job. That is not necessarily a judgement on the witness' honesty, but includes consideration of such factors as powers of observation, judgement and memory, and interest in the outcome, which may, unconsciously, shade his or her testimony. [footnote omitted]
20. 20Arbitration decision, p. 13.
21. 21Arbitration decision, p. 6.
22. 22Arbitration decision, p. 15.
23. 23Arbitration decision, pp. 14-15.
24. 24Arbitration decision, p. 15.
25. 25For example, her answers to questions 737-749 on January 28, 1999 (pp. 142-144 of the transcript).
26. 26Though Ms. Z did not raise the issue, I considered whether the Review Tribunal decision bound me by virtue of the doctrines of res judicata or issue estoppel. I conclude it does not given that the two proceedings involve different issues and parties.
27. 27Arbitration decision, p. 28.
28. 28Subsection 32(1) of the Charter states: This Charter applies
    (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
    (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
29. 29Maas and State Farm, footnote 8 above.
30. 30On my review of the record, the only arbitration or appeal expenses order against Ms. Z to date, is Arbitrator Jones' order of July 3, 1998, that she pay arbitration expenses of $150 in any event of the cause, because of her failure to meet her production obligations.
31. 31For example, see Persofsky and Liberty Mutual Insurance Company and Insurance Bureau of Canada, Ontario Trial Lawyers Association and Ministry of Finance, (FSCO P00-00041, January 31, 2003) and the cluster of bias allegations brought in response to it: Tanzos and State Farm Mutual Automobile Insurance Company, (FSCO P01-00017, November 21, 2001); Dhawan and State Farm Mutual Automobile Insurance Company, (FSCO P01-00025, February 1, 2002) and (FSCO P01-00025, May 16, 2002); Bersteyn and Allstate Insurance Company of Canada, (FSCO P01-00049, July 29, 2002); Docoute and Zurich Insurance Company, (FSCO P01-00036, July 29, 2002); Sverdlik and Lombard General Insurance Company of Canada, (FSCO P01-00050, July 29, 2002).
32. 32See Sellathamby and Allstate Insurance Company of Canada, (FSCO P02-00009, December 17, 2002).
33. 33At p. 12.
34. 34See, for example, Dhaliwal and Gore Mutual Insurance Company, (OIC A-011188, June 22, 1995) and Bertsouklis and Liberty Mutual Fire Insurance Company, (OIC P-006499, May 28, 1996), confirming (OIC A-006499, June 28, 1995).
35. 35Subsection 282(11) reads: "The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations." The criteria and maximum amounts are set out in s.12(2) of Ontario Regulation 464/96, which is appended as a Schedule to the Dispute Resolution Practice Code.