Julie Wilson v. Liberty Mutual Insurance Company, 2004 ONFSCDRS 102

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2004 ONFSCDRS 102 Appeal: P04-00007

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JULIE WILSON Appellant

and

LIBERTY MUTUAL INSURANCE COMPANY Respondent

Before: David R. Draper

Representatives: Julie Wilson, representing herself R.W. Howard Lightle for Liberty Mutual

Hearing Date: By written submissions, filed to June 15, 2004

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 and the Arbitrator’s order, dated February 27, 2004, is confirmed.

2. Julie Wilson shall pay Liberty Mutual’s appeal expenses, fixed at $250, payable forthwith.

July 2, 2004

David R. Draper Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

By letter dated February 27, 2004, the Arbitrator denied Mrs. Wilson’s request that Ms. Carolyne Champaigne be allowed to participate in the arbitration process as her “facilitator.” He found that Mrs. Wilson had the mental capacity to conduct her own case, and that Ms. Champaigne’s appropriate role was as a witness. Mrs. Wilson appeals, claiming the Arbitrator erred in law and violated her rights under the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. For reasons that follow, the appeal is dismissed.

II. BACKGROUND

Mrs. Wilson was injured in an automobile accident on April 27, 1997. She applied to Liberty Mutual Insurance Company (“Liberty Mutual”) and received accident benefits under the SABS-1996.¹ Later, disputes developed. According to the arbitration pre-hearing letter, dated October 9, 2003, Mrs. Wilson claims various medical benefits and income replacement benefits (“IRBs”) after July 15, 2000. Liberty Mutual is seeking repayment of some of the benefits based on an alleged miscalculation of the IRBs.

At a follow-up pre-hearing on February 27, 2004, Liberty Mutual asked for clarification of Ms. Champaigne’s role. The Arbitrator explained his ruling in a letter dated the same day:

Mr. Lightle [on behalf of Liberty Mutual] requested clarification of the role Ms. Carolyne Champaigne plays in this arbitration. Mrs. Wilson indicated that Ms. Champaigne was a “facilitator.” She was not a representative and did not have authority to negotiate on her behalf.

Mrs. Wilson said that she had trouble hearing when people spoke softly or more than one person spoke at the same time. She said that she had “cognitive and communication problems” and that Ms. Champaigne interprets for her to ensure that she understands what is going on. She said that Ms. Champaigne can speak on her behalf because “she knows what I’m trying to say.”

Mr. Lightle also raised the issue of mental competency. Mrs. Wilson spoke quickly and intelligently. She spoke about the difference between her tort action and her SABS proceeding. She referred to the Charter of Rights, bad faith actions and production of documents and files. She said that she was handling her accident benefits claim on her own. Although Mrs. Wilson often interrupted Mr. Lightle and myself, she argued extensively and intelligently. At this point, I am satisfied that Mrs. Wilson has the mental capacity to conduct her own case.

Although Mrs. Wilson may call Ms. Champaigne a “facilitator,” the role she described is that of a witness. Accordingly, if Ms. Champaigne understands Mrs. Wilson and knows what she wants to say, Ms. Champaigne can testify about such matters, including her expertise in the matter. As a witness, Liberty Mutual will have an opportunity to cross-examine Ms. Champaigne after she testifies.

If Ms. Champaigne will express any opinion, then such opinion is governed by Rule 42 of the Dispute Resolution Practice Code. That provision is summarized in my pre-hearing letter to the parties dated October 9, 2003. I direct the parties in particular to the last paragraph under the heading “Witnesses.”

Mrs. Wilson appealed, claiming the Arbitrator erred in law and violated her rights under the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. Although the appeal is from a preliminary or interim order, Liberty Mutual agreed that it should proceed before the arbitration hearing, which is currently scheduled to start on July 14, 2004.

The appeal raised a number of preliminary issues. In a letter dated April 7, 2004, I dealt with them as follows:

1. I confirmed Mrs. Wilson’s position that she was representing herself in the appeal, and that Ms. Champaigne was not acting as her representative.

2. I directed that all communications from the Commission and Liberty Mutual in respect of this appeal were to be directed to Mrs. Wilson, not Ms. Champaigne.

3. I advised Mrs. Wilson that she would not be entitled to pursue any constitutional arguments, including arguments based on the Canadian Charter of Rights and Freedoms, unless she complied with Rule 80 of the Dispute Resolution Practice Code by providing notice to Attorney General of Canada and the Attorney General of Ontario.

4. I held that the appeal would be decided on the basis of written submissions, with the timing of the submissions governed by Rule 54 of the Practice Code.

5. I accepted the following documents, attached to Mrs. Wilson’s Notice of Appeal, as part of the appeal record:

(a) Letter to Ms. Marva McLean dated February 12, 2004;

(b) Letter to Ms. Marva McLean dated March 1, 2004;

(c) Initial Speech and Language Assessment Report of Annick Côté, Speech-Language Pathologist, dated September 8, 2003; and

(d) Neuropsychological, Cognitive and Personality Assessment of Dr. M. A. Persinger, dated April 15, 2001;

6. I invited Mrs. Wilson to file additional evidence from Ms. Champaigne — which could be in letter or report format – addressing the following:

(a) Ms. Champaigne’s professional qualifications; and

(b) Whether Ms. Champaigne is assisting Mrs. Wilson in her professional capacity and, if so, the source of any referral, the scope of her professional services, and the source of any funding for those services.

7. I indicated that if Liberty Mutual wanted to file any new material, it should seek leave by writing to me, copied to Mrs. Wilson, describing the material and setting out its submissions on why this new material should be admitted for purposes of the appeal.

Mrs. Wilson provided notice of constitutional question and written submissions. Attached to the submissions was the following additional material:

• Letter from Dr. James E. Deacon, dated April 21, 2004;
• Report of Annick Côté, Speech-Language Pathologist, dated September 8, 2003;
• Report of Dr. M.A. Persinger, Psychologist, dated April 15, 2001;
• Article from the British Journal of Social Work: (1999) 29, 841-860, The Care Programme Approach: Dimensions of Evaluation, Angela Downing and Barbara Hatfield;
• World Health Organization, International Classification of Functioning, Disability and Health (ICF), 22 May 2001.
• Letter from Ms. Champaigne, dated May 5, 2004.

Before Liberty Mutual filed its submissions, Mrs. Wilson provided a report of an “MRI of Brain,” conducted on March 17, 2004, showing “Multiple nonspecific white matter lesions.” Liberty Mutual then filed its submissions, including the following additional medical reports:

• report of Dr. Henry Berry, Psychologist, dated September 25, 2003;
• report of Dr. N.C.S. Doxey and Dr. Philip C. Miller, Psychologists, dated August 12, 2003.

I accepted these reports as part of the appeal record, but gave Mrs. Wilson an opportunity to file reply submissions. She did so on June 14, 2004, including yet more material:

• Letter from J. Van Pelt, Manager, Ministry of Health and Long-Term Care, dated October 20, 2003, and enclosure (Call Details Report);
• CT scan report, Mount Sinai Hospital, dated January 27, 2004;
• Consultation note from Dr. Ralph Kern, Wasser Pain Management Centre, Mount Sinai Hospital, dated January 28, 2004;
• X-ray report dated March 15, 2004.

The presentation of new evidence by both parties raises some concerns. However, given the issue under appeal and the nature of the evidence, I concluded that the most expeditious and fairest course was to consider all of the fresh evidence, which I have done.

III. ANALYSIS

While arbitration hearings are less formal than court, they are adversarial proceedings that must be conducted fairly. They are subject to legislation, rules of procedure and common law principles of natural justice and fairness. It is up to the arbitrator to apply these rules and, more generally, control the process. Defining the roles of the various participants is central to that function.

The procedures that govern arbitration hearings contemplate a number of different roles, which I would describe as follows:

• Party: the “insured person” and insurer involved in a claim for accident benefits.
• Person acting on behalf of a party: someone who makes a claim for accident benefits on behalf of a minor or mentally incapable person [Rule 10].
• Representative: someone who pursues or responds to a claim for accident benefits on behalf of a party based on instructions provided by the party [Rule 9].
• Witness: someone who provides evidence at a hearing [Rule 41].
• Expert witness: someone who provides opinion evidence at a hearing [Rule 42].
• Interpreter: someone who translates the proceedings for someone who otherwise would not be able to understand them [Rules 5.3-5.5].

It may be appropriate to add one other, less formal role – support person. In some cases, the insured person brings someone who takes no part in the proceedings, but is there simply to provide emotional support.

The fundamental problem in this case is that Mrs. Wilson wants Ms. Champaigne to act in a capacity that does not fall neatly into any of these categories. Instead, she wants Ms. Champaigne to take on aspects of many of the different roles.

Mrs. Wilson does not suggest, nor did the Arbitrator find, that she is incapable of making her own decisions. On the contrary, he specifically found that she had the mental capacity to conduct her own case. Therefore, it would be inappropriate for Ms. Champaigne to act on her behalf (the second category, above).

Ms. Champaigne could act as Mrs. Wilson’s representative. That is a defined role, with clear responsibilities. To act as a representative, Ms. Champaigne would need to file with the Commission as a SABS Representative, or act without compensation, as defined in s. 19(1) of Ontario Regulation 664.² In this role, Ms. Champaigne would be subject to all of the rules that apply to representatives, including the possibility that she could be ordered to pay Liberty Mutual’s arbitration expenses personally.³ Mrs. Wilson has made it clear, however, that she wants Ms. Champaigne to act as a facilitator, not a representative.

The Arbitrator found that Ms. Champaigne’s most appropriate role was as a witness. This would allow her to give evidence about any matters relevant to Mrs. Wilson’s condition and her entitlement to accident benefits. If she qualified as an expert witness, she would also be able to present opinion evidence. While Mrs. Wilson could call Ms. Champaigne as a witness, that is not what she wants to do.

In my view, the role of interpreter is closest to the description of facilitator provided by Mrs. Wilson and Ms. Champaigne. Typically, interpreters deal with language differences, but the real concern is communication. Everyone involved in an arbitration proceeding, assuming they are competent, must be able to engage in the communications process that is central to a fair hearing. There are many people who are mentally capable, but need assistance understanding or communicating in the context of an arbitration hearing held in one of the official languages. Examples include the deaf person who uses a non-standard version of sign-language, or the physically disabled person who relies on some form of communication aid, such as a Bliss Board. I find it plausible, therefore, that a competent but communication-impaired person might need some form of interpretation. The key, however, is that the arbitrator must be confident that the interpreter is limiting his or her involvement to interpreting what is being said by others, and not becoming involved in the substance of the hearing. For reasons set out in more detail below, I am not persuaded that the services proposed in this case are needed, or that Ms. Champaigne is prepared to limit her role to interpretation.

Appeals are limited to questions of law.⁴ While I accept that access to justice is an important principle, and that non-discrimination is a fundamental right in Canadian law, the Arbitrator’s decision turns on the facts of this case. He asked whether Mrs. Wilson needed someone to speak on her behalf, and found that she did not. His decision must be given deference – it was his job to make this determination and he had the opportunity to hear from both Mrs. Wilson and Ms. Champaigne in the course of two pre-hearing discussions.

In my view, the Arbitrator’s decision was within his authority. There was evidence to support his conclusion and, therefore, I find no error of law. Nor am I persuaded that the additional evidence changes the result. On the contrary, I reach the same conclusion.

There are real issues about the nature of Mrs. Wilson’s disabilities and the extent to which they compromise her ability to participate in an arbitration hearing. She claims that she suffered various injuries as a result of the accident, including a traumatic brain injury (“TBI”) and a related anxiety disorder. As a result, she says that she has “impaired dichotic word listening and impaired memory, organization and cognitive-communication skills, with a below average neurocognitive proficiency.”

The diagnosis of TBI apparently comes from the report of Dr. M.A. Persinger, dated April 15, 2001. Other assessments, including two reports prepared for the lawyer representing Mrs. Wilson in a tort claim arising out of the same accident, reach a fundamentally different conclusion. Not only do they find that Mrs. Wilson has not suffered any permanent brain injury, they make it clear that, in their opinion, her recovery has been compromised by her belief, supported by others including Ms. Champaigne, that she is brain injured.

Dr. Henry Berry, in a report dated September 25, 2003, describes Dr. Persinger’s approach to the assessment of Mrs. Wilson’s brain function as “unconventional and, although perhaps of research interest, it is not an established method of diagnosis.” (p. 16) He concluded that the diagnosis of brain injury was wrong, and that Mrs. Wilson could be “reassured that she has not suffered any permanent brain injury and that her physical condition is of a type that can benefit from increasing activity.” (p. 25)

Mrs. Wilson submits that although Dr. Berry may not have endorsed the diagnosis of TBI, he agreed that she was disabled. While this is true in a technical sense, it is an incomplete reading of the report. Dr. Berry accepted that Mrs. Wilson had ongoing symptoms, but attributed them to a somatoform disorder – “pseudodementia” – which he described as a well-recognized condition that can resemble brain damage, but has an emotional basis. Dr. Berry made it clear that, in his opinion, the diagnosis of TBI contributed to Mrs. Wilson’s symptoms and remained an impediment to her recovery (pp. 23-25). In my opinion, Dr. Berry’s report stands in opposition to the kind of assistance provided by Ms. Champaigne.

In another report prepared for Mrs. Wilson’s tort lawyer, dated August 12, 2003, Drs. Neville Doxey and Philip Miller also reject the diagnosis of TBI. They found that Mrs. Wilson’s intellectual functioning “was solidly within the average range” and that “her academic skills are still well preserved, and she demonstrates all the essential vocational strengths to be able to return to work of this kind [a sedentary job, such as being an accountant once again] and function at a competitive level.” The main obstacle, in their opinion, was Mrs. Wilson’s “deeply held belief, obviously supported by some members of the Brain Injury Association and perhaps some of her practitioners, that she has a serious brain injury and that she has been left with permanent and irreversible impairments that will not only preclude her from returning to work, but even will leave her forever in need of assistance to cope with the day-to-day demands of life.”

Mrs. Wilson criticizes the reports of Dr. Berry and Drs. Doxey and Miller for various reasons, including their reliance on incomplete and flawed information. In my view, these criticisms are not particularly strong. These doctors had access to a great deal of medical information, which is discussed in their reports and, presumably, was provided by her tort lawyer.

Even if Dr. Persinger’s assessment is accepted, which I am not persuaded it should be, the need for a facilitator is not obvious. He found that Mrs. Wilson’s levels of intelligence and memory were within the average range:

According to a series of subtests by which psychologists infer cognitive flexibility, this woman’s levels of verbal and performance intelligence were within the average range. There were no significant discrepancies between the scores for the subtests that would suggest any particular weakness or strength within the classic domains defining intelligence. Ms. Wilson’s standardized scores for general memory capacity and educational achievement were within the average range and congruent with her level of intelligence.

Although one might have expected standardized scores for levels of intelligence and memory at least one standard deviation above her actual performance, considering her level of education, the magnitudes of these scores were not necessarily below the range expected for a person who specializes in a technical vocation. Ms. Wilson’s understanding and expression of language were within the average range. In summary, she displayed the intellectual and memory capacities of an average person. (p. 9)

Commenting on Mrs. Wilson’s functional limitations, Dr. Persinger reported that her condition “would be sufficient to affect her comprehension of language within noisy settings or during multiple conversations,” but would not be evident when she was “engaging in single conversations or listening to discussions within a quiet setting” (pp. 10-11). Like the Arbitrator, I am not persuaded that this level of impairment requires the involvement of a facilitator, as described by Mrs. Wilson and Ms. Champaigne.

The next question is whether allowing Ms. Champaigne would do any harm. Mrs. Wilson argues that Liberty Mutual would not be adversely affected by permitting her to use a facilitator. There is a similar tone in the letter from her family doctor, Dr. James E. Deacon, who supports the use of a facilitator. In this letter, dated April 21, 2004, Dr. Deacon states:

I am writing this letter to express my opinion about her [Mrs. Wilson’s] need to have someone who knows her well assist her in her representations before any sort of tribunal or in any process where she is having to present information and receive information and respond to it. Julie is describing such a person as a ‘facilitator’. I do not know if this is a recognized and defined terminology but it does make sense to me . . .

I think that Julie would be at a major disadvantage if she were required to present her position to a tribunal or board and respond to questions and other presentations without the benefit of her ‘facilitator’. We would not expect a hearing impaired or visually impaired person to function without appropriate assistance and I do not understand why one would ask a brain injured person to function without needed help.

In my view, this letter does not address the hard questions. Ms. Champaigne’s involvement is not a neutral step that might help, but can do no harm. First, Dr. Deacon does not comment on the view held by other medical practitioners that Mrs. Wilson’s recovery is being impeded by her belief, which they regard as sincerely held but incorrect, that she suffers from a brain injury – a belief that is supported by members of the Sudbury & District Brain Injury Association and Ms. Champaigne, who met Mrs. Wilson through a common acquaintance involved in this organization.

Second, Dr. Deacon does not address Ms. Champaigne’s ability to act as a facilitator, or even mention her name. She does not claim any professional training in this area or a connection to any recognized service organization.⁵ Rather, she describes her role as a facilitator as evolving as a result of helping a friend who was having trouble accessing accident benefits. Despite her lack of training, Ms. Champaigne analyzes the medical reports and expresses opinions on Mrs. Wilson’s injuries and medical needs. She clearly views her role as including advocacy. While this may be well-intentioned, it substantially blurs the line between Mrs. Wilson’s communication needs and her need for representation.

Many insured persons decide that they need assistance in deciphering the Statutory Accident Benefits Schedule and in presenting their case effectively. An insured person who does not speak English or French may need an interpreter, but the interpreter does not give evidence or advocate on his or her behalf. In my view, these distinctions are not mere formalities, but serve the fairness of the hearing and are reinforced by the new restrictions on representing insured persons in accident benefits claims, discussed below.

Reviewing the material before me, I find that Ms. Champaigne is not simply helping Mrs. Wilson communicate with others; she is providing representation. The definition of facilitator presented in Mrs. Wilson’s submissions specifically includes advocacy. It is also difficult to ignore the fact that Mrs. Wilson’s submissions are from “Julie Wilson/Carolyne Champaigne” and refer to Mrs. Wilson in the third-person. As well, at least one of the paragraphs uses “we” to refer to the source of the submissions. Any doubts about Ms. Champaigne’s advocacy role are removed by her description of how she became involved in Mrs. Wilson’s case.

Ms. Champaigne explains that she originally got involved when another friend’s lawyer was unable to obtain accident benefits for her. Similarly with Mrs. Wilson, she has stepped in when her lawyer has been unavailable or ineffective. The following paragraphs provide some insight:

Throughout this time, in the role of facilitator, I was attempting to assist Karen [Ms. Champaigne’s friend for whom she acted as a facilitator and who was acting as a facilitator for Mrs. Wilson] in breaking down the information Karen was obtaining while advocating for Julie, without the benefit of a copy of the rules and being able to read them. While learning about their impairments and attempting to clarify their entitlement to benefits and sharing independent spirit, Julie and Karen kept the two copies. Once a third copy was received, Karen, Julie and I spent hours breaking down the information and attempting to overcome the various systemic barriers. Julie was still unable to follow-through with the information we had assisted her in organizing and we then assisted her in finding a lawyer. Unfortunately, after retaining counsel, Julie found herself again in the position of having to advocate for herself and being unable to do so without assistance. By the fall of 2002 it became apparent that there was no system in place to assist Julie and Karen and I agreed to include Julie in our facilitation process, as many of the barriers were the same.

Ms. Jill Stevens, a friend of Julie’s facilitates for Julie on a regular basis and deals with most matters requiring facilitation, with the exception of presentation in the dispute resolution process and communication with Julie’s lawyer. Ms. Stevens is not comfortable with either process at this time.

The Insurance Act restricts the right to negotiate accident benefits claims on behalf of another person.⁶ Superintendent’s Bulletin No. A-06/03 suggests that these restrictions are quite broad, covering the following activities:

• advising another person about his or her rights under the SABS;
• completing or assisting in completing application forms;
• discussing and negotiating with an insurer or adjuster;
• attending dispute resolution proceedings; or
• negotiating the settlement of SABS claims.

The Insurance Act also includes restrictions on providing representation in the dispute resolution process.⁷ Ms. Champaigne states that she has not charged any fee for her services and, therefore, I do not cite these provisions to suggest that she has acted illegally. I do find, however, that she has been acting as a representative without accepting that role. Liberty Mutual and the Commission need to know if Mrs. Wilson is represented and, if so, by whom. If she is represented, that person is expected to take on certain responsibilities that allow the process to move ahead in an orderly and fair manner. As noted above, the representative also faces penalties if he or she acts improperly.

In summary, I agree that Mrs. Wilson is not entitled to have Ms. Champaigne participate in the arbitration process as her facilitator, as they define that role. She may want Ms. Champaigne to be involved in some other capacity, but that role must be clarified.

Finally, Mrs. Wilson raised arguments under the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. She does not challenge the legislation, but objects to its application in her case. In my opinion, the Arbitrator’s decision turned on this evaluation of the facts. Mrs. Wilson’s rights have not been ignored. Rather, a determination has been made that her condition does not warrant the kind of accommodation she is seeking.

For these reasons, the appeal is dismissed.

IV. APPEAL EXPENSES

The criteria for awarding expenses are found in Ontario Regulation 664, as recently amended:

12. (2) An arbitrator shall, under subsection 282(11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

13. Each party’s degree of success in the outcome of the proceeding.

14. Any written offers to settle made in accordance with subsection (3).

15. Whether novel issues are raised in the proceeding.

16. The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.

17. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

Success clearly favours Liberty Mutual. It asks for expenses fixed at $2,000. In my view, Mrs. Wilson must bear some responsibility for Liberty Mutual’s expenses. However, I conclude that she raised a legitimate issue of sufficient novelty that the amount should be minimal. I fix the amount at $250, all inclusive.

July 2, 2004

David R. Draper Director of Arbitrations

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2According to s. 19(2), “a person shall be considered to be representing a party for compensation if the person receives or is entitled to receive, directly or indirectly from any source, a financial benefit in connection with the representation of the party, whether the financial benefit is wages, fees or another form of consideration or remuneration.”
3. 3Insurance Act, s. 282(11.2).
4. 4Insurance Act, s. 283(1).
5. 5Letter from Ms. Champaigne, dated May 5, 2004.
6. 6Insurance Act, s. 398.
7. 7Insurance Act, s. 284.1