Maryam Hezavian v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 29

Commission des services financiers de l’Ontario

Neutral Citation: 2003 ONFSCDRS 29

Appeal P02-00006

Appellant

and

Respondent

Before:

Stewart M. McMahon

Representatives:

Manoucher Baradaran for Mrs. Hezavian

Todd J. McCarthy for Allstate

Hearing Date:

February 21, 2003

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

The appeal is dismissed and the arbitration order dated February 8, 2002 is confirmed.
Mrs. Hezavian shall pay Allstate Insurance Company of Canada the expenses of the appeal fixed at $1,000.

March 5, 2003

Stewart M. McMahon Director's Delegate

Date

I. NATURE OF THE APPEAL

This appeal is essentially a complaint about the way the Arbitrator conducted the hearing. Mrs. Hezavian and her representative, Mr. Baradaran, allege that the Arbitrator was biased and did not give Mrs. Hezavian a fair hearing. The nature of these allegations is captured in the following excerpt from the Notice of Appeal:

From the beginning of the arbitration, [the Arbitrator] dealt and spoke with me [Mr. Baradaran] in an antagonistic and condescending manner, and apparently had no interest in adequately considering my arguments and the evidence of my clients in the making of her decisions.

II. ARGUMENTS AND ANALYSIS

An advocate must protect his client's interests fearlessly. He must also act responsibly and with integrity. The kind of allegations being made in this case are distinct from an ordinary assertion that an adjudicator erred. It is an attack on the individual's integrity. In addition, the subject of the allegation is not in a position to defend herself. In light of this, advocates contemplating a bias claim must be prepared to follow it through by collecting and presenting the evidence that supports the allegation.

The allegations in this case are all rooted in the hearing. Mrs. Hezavian alleges that the Arbitrator spoke to her representative in an antagonistic and condescending manner, ignored the arguments he made during the course of the hearing, and the testimony given by her husband. The evidence to substantiate these allegations, if it exists, would be found in the transcript of the proceeding. Mr. Baradaran indicated in the Notice of Appeal that he was ordering the transcript, but changed his mind when he learned the cost. When Mr. Baradaran advised the Commission that he was not ordering the transcript, I wrote to him, noting that the allegations of bias set out in the Notice of Appeal still had to be proven. He ignored this warning and pressed on with the appeal without ordering the transcript, or taking any other steps to acquire or present evidence in support of the allegations. In the absence of any supporting evidence, the appeal is dismissed.

Mr. Baradaran's decision to press on with the appeal, without any supporting evidence, represents a disturbing failure to recognize his obligations as an advocate. His conduct is all the more blameworthy given that it is apparent the appeal was prompted by the remarks in the Arbitrator's decision about Mr. Baradaran's competence.

I turn now to some brief comments about the specific complaints made by Mrs. Hezavian. In addition to the general argument that the decision is "one sided" she advances the following four arguments on appeal:

the Arbitrator erred by permitting Allstate to introduce into evidence a copy of the clinical notes and records of her family physician, Dr. M. Virani;
the Arbitrator erred by refusing to allow her to call a kinesiologist to testify;
the Arbitrator erred by allowing Allstate's counsel to make derogatory "off-the-record" comments;
the Arbitrator erred by ignoring her husband's evidence.

Mrs. Hezavian links the first two complaints, noting that both the rulings were in Allstate's favour. She argues this is proof of the Arbitrator's bias. Accordingly, it is useful to deal with these complaints together.

Allstate obtained a copy of Dr. Virani's clinical notes and records on the eve of the hearing. The Arbitrator admitted the notes into evidence over Mrs. Hezavian's objections. The Arbitrator briefly dealt with this ruling in her reasons. She stated that she accepted Allstate's submission that the records had not been obtained earlier because Mr. Baradaran had not co-operated with its attempts to obtain them in a timely fashion. She also noted that Mr. Baradaran insisted the records were not relevant, but had not explained why. On appeal, Mrs. Hezavian submits that an arbitrator should only permit the introduction of late evidence in "extraordinary" circumstances, and that it should not have been based on the mere submission that Mr. Baradaran had not co-operated.

In-hearing rulings are commonly made on the basis of statements, made by counsel and representatives, that are a combination of unsworn evidence and submissions. This is not ideal, but in most cases it represents a practical balance that allows the arbitrator to make reasonably informed rulings, and proceed with the hearing in a timely fashion. If necessary, counsel can ask the arbitrator for a more formal process. There was no suggestion that Mrs. Hezavian complained about the process at the time.

Although these type of in-hearing rulings are not immune from challenge, the arbitrator must be given a fair bit of scope to control the process. Consequently, appeal adjudicators should be slow to interfere unless the appellant can demonstrate the adjudicator proceeded on wrong principles or ignored crucial evidence or submissions.

Without the transcript, Mrs. Hezavian was unable to present a record of what evidence and arguments were put to the Arbitrator. Without this foundation, Mrs. Hezavian is in no position to argue that the Arbitrator ignored her representative's submissions, or otherwise erred in the exercise of her discretion.

The Arbitrator's ruling regarding Mrs. Hezavian's attempt to call a kinesiologist is not recorded in the written decision and, accordingly, I do not know what influenced her decision. Mr. Baradaran developed no argument about how the Arbitrator erred, other than to say that she had given him little opportunity to respond to Allstate's objection. Again, without the transcript, Mrs. Hezavian is not in a position to substantiate this allegation.

Finally, the mere fact that both rulings favoured the same party is not evidence per se of bias. Mrs. Hezavian offered no reason to believe the Arbitrator's rulings were based on anything other than the merits of the arguments made to her.

The third complaint relates to the evidence of Mrs. Hezavian's husband. The Arbitrator's comments regarding his evidence are quite brief. She noted that he offered little evidence that was relevant to the specific issues before her. Mrs. Hezavian submits that, contrary to the Arbitrator's comments, Mr. Hezavian's evidence was both relevant and extensive. She argues that the fact the Arbitrator ignored this evidence is further proof she was not interested in giving her a fair hearing. This submission is also undermined by the absence of a transcript.

Quite apart from allegations of bias, an arbitrator errs if she ignores crucial evidence. It should be self-evident that a party wanting to advance such an argument must first provide the adjudicator hearing the appeal with a record of the pertinent evidence. In this case, the evidence in question was testimony given during the hearing. Mrs. Hezavian offered nothing to establish what Mr. Hezavian had said during the hearing, and consequently failed to substantiate her submissions that he offered relevant and extensive evidence. It follows that she has failed to establish that the Arbitrator ignored crucial evidence.

The last of Mrs. Hezavian's complaints is that the Arbitrator erred when she allowed Allstate's counsel to make disparaging comments during an "off-the-record" discussion. It is quite inappropriate for advocates to argue their case off the record. However, Mr. Baradaran did not offer an affidavit, or any other form of evidence, and hence his comments about what was said are unsubstantiated. In addition, Mr. Baradaran did not tie the alleged comments to any defect in the decision.

In conclusion, Mrs. Hezavian's appeal is dismissed.

III. EXPENSES

At the same time that I warned Mr. Baradaran about the need to prove the allegations of bias, I also alerted him to the fact that "it is almost inevitable that unfounded allegations will attract sanctions, including an expense order in favour of the responding party." My letter was copied to Mrs. Hezavian, who also signed an acknowledgment which included a statement that "[a]s a named party in this proceeding, I am responsible for paying any order made in favour of the insurance company."

In light of these factors, I award Allstate its expenses.

In fixing these expenses, I note that prior to the appeal hearing, Allstate brought an unsuccessful motion to exclude Mr. Baradaran. Allstate is not entitled to the expenses associated with this motion.

Allstate's counsel estimated that he had spent approximately 20 hours on the appeal, including approximately 5 hours on the motion. I suspect that counsel's estimate may be off slightly. In the absence of transcripts, this was a pretty simple appeal from Allstate's perspective. In addition, the written materials on the motion are, if anything, more extensive than the materials prepared on the appeal proper. I also note that I did not call on Allstate's counsel at the conclusion of Mrs. Hezavian's submissions.

I award Allstate $1,000, inclusive of disbursements.

March 5, 2003

Stewart M. McMahon Director's Delegate

Date