Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 59

Appeal P06-00029

OFFICE OF THE DIRECTOR OF ARBITRATIONS

D. F.

Appellant

and

WAWANESA MUTUAL INSURANCE COMPANY

Respondent

Before:

David Evans

Representatives:

D. F., unrepresented

Ian D. Kirby for Wawanesa

Hearing Date:

May 17, 2007

APPEAL ORDER

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

Ms. F's appeal of the arbitration decisions dated August 23, 2006 and December 22, 2006 is dismissed.
If the parties are unable to agree about Wawanesa's expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 15, 2008

David Evans Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

D. F. appeals the arbitrator's order dated August 23, 2006, dismissing her claims under the SABS-1996¹ for income replacement benefits (IRBs) and medical-rehabilitation benefits and for a special award. She also appeals the arbitrator's expenses order dated December 22, 2006, awarding Wawanesa expenses of $15,344.05.

Ms. F made extensive submissions that the arbitrator's unfairness in the proceedings, failure to observe principles of natural justice, errors in fact-finding and insufficient reasons require me to either reverse the decision or remit it for a new hearing. However, for the reasons that follow, I am not persuaded that the process was unfair. Nor am I persuaded that the arbitrator erred in law in his findings of fact or in his reasons for decision.

II. BACKGROUND

Ms. F had suffered a work place injury in 1999 and was assaulted in 2000. The arbitrator accepted that, as a result of these incidents, Ms. F "was trying to put her life back together, as best she could, prior to the automobile accident involved in this case." On October 13, 2002, Ms. F was injured in a rear-end collision that, she testified, set back her recovery and resulted in her claims against Wawanesa.

The arbitrator denied the claim for IRBs because he found that there was no evidence Ms. F's pain disabled her from her pre-accident employment of acting, dancing and running a mobile massage business.

Ms. F also claimed the cost of a Tempur mattress and a laptop computer as a medical benefit under s. 14 of the SABS-1996 (an expense of a medical nature) or as a rehabilitation benefit under s. 15 (a measure undertaken to reduce or eliminate the effects of any disability or to facilitate reintegration into family, society or work). However, the arbitrator found the claimed expenses or measures did not meet the "reasonable and necessary" test under s. 14(2) or s. 15(2).

Ms. F claimed a neuropsychological re-assessment by Dr. Alina Kaminska, neuropsychologist, pursuant to s. 24 of the SABS. The arbitrator denied this claim because he was not satisfied Dr. Kaminska had shown that anyone would benefit from it and because a fast track Med Rehab DAC paper review conducted by a psychologist, Dr. Konstantine K. Zakzanis, in October 2005, found it was not necessary.

The arbitrator found that because he did not find that any benefits were payable to Ms. F, he had no basis upon which to order a special award under s. 282(10) of the Insurance Act.

Finally, the arbitrator considered Wawanesa's claims for repayment pursuant to s. 47 of the SABS with respect to an advance it had made on IRBs and an advance for bank records that were never produced. He found that because notice of the IRB repayment claim was made more than 12 months after payment [s. 47(3)] and the money advanced for the bank records was not a "benefit," he could not order repayment. However, he suggested that the bank record payment might be an arbitration expense.

In his expenses decision of December 22, 2006, the arbitrator found that Wawanesa was entitled to its expenses. As to the amount, the arbitrator disallowed some expenses, such as court reporter services, but did allow $2,000.00 Wawanesa paid to Ms. F for the bank records.

III. PRELIMINARY APPEAL ISSUES

Ms. F raised a number of preliminary appeal issues. In her Notice of Appeal, she asked for an order requiring Wawanesa to pay for the transcripts of the arbitration hearing. Wawanesa resisted this request for a number of reasons: Rule 74.3(c) of the Dispute Resolution Practice Code provides that a party ordering all or part of the transcript must "directly pay the person or agency providing the transcript"; the hearing lasted seven days; Ms. F's case was dismissed in its entirety; and, the documentary evidence filed during the hearing was sufficient for the purposes of determining the issues on appeal. I noted that appeals are only on questions of law,² not on the arbitrator's assessment of the evidence or his factual findings. In this case, the arbitrator wrote extensive reasons, setting out a number of factual findings. I noted that, unless there was no evidence to support those findings, they are not subject to review pursuant to s. 283(1). Accordingly, I was not persuaded that transcripts were needed or that the insurer should be required to pay for them.

Ms. F also asked to file a shoe box full of cassette tapes that she made of the arbitration and expense hearings (as well as answering machine messages). Although it is not mentioned by the arbitrator in his decisions, Ms. F had her own tape recorder at the hearings to make her own tapes.

In my letter of May 2, 2007, I advised the parties that I was not prepared to accept either the tapes or the transcripts prepared from them because the hearing was recorded by a court reporter and proper transcripts could be obtained from that reporter. I noted that The Dispute Resolution Practice Code in Rule 74.1 provides that a hearing may be recorded only by "a court reporter who has taken an oath or affirmation to report the evidence and proceedings faithfully." Ms. F's recordings for the main hearing and the expenses hearing were neither made nor transcribed by such a court reporter. I also held that, after reviewing the submissions, I was still not convinced that I should order the insurer to provide the transcripts. For instance, a great deal of Ms. F's submissions turned on process, and I failed to see how the transcripts would be determinative in that context.

IV. ANALYSIS

Procedural and Evidentiary Issues

As noted above, Ms. F submits that procedural unfairness or failures to observe principles of natural justice by the arbitrator were so extensive that a reversal or a rehearing is required. I will deal with this aspect first before turning to the substantive issues. However, to some extent the issues raised here are relevant to the substantive issues.

Ms. F submits that the arbitrator should have included a discussion of her testimony about what happened at the pre-hearing, her submissions about Wawanesa's handling of the file, and the steps she took to ensure the decision was anonymized. However, the arbitrator was not required to include in his decision these various procedural aspects unrelated directly to the consideration of the benefits, such as anonymization. As for the events at the pre-hearing and Wawanesa's overall handling of the file, that would only be potentially relevant if Ms. F had been awarded any benefits, in which case the arbitrator might have considered these events in determining whether a special award should be ordered. Finally, Ms. F submitted that the arbitrator did not discuss whether Wawanesa had appropriately responded to a treatment plan for the neuropsychological assessment. However, as noted, Dr. Zakzanis performed a DAC with respect to this claim, so I fail to see any error by the arbitrator.

Ms. F submits that she was hindered, prevented or continually interrupted and side tracked while trying to present her evidence during the hearing. She submits that she often felt like the arbitrator was not listening to her, or that he and counsel for the insurer engaged in banter or legalese and essentially excluded her from her own proceeding. Turning to a particular case, for instance – the monies forwarded for the bank records – Ms. F submits that the arbitrator unfairly helped the insurer by suggesting that, while the amount was not repayable as an overpaid benefit, it might be recoverable as an expense of the hearing. However, with respect to that last point, arbitrators have often clarified for the parties the distinction between a benefit and expenses.

More generally, I note that at several points in his decision, the arbitrator referred to the difficulties of this hearing. He wrote in the main decision:

I consciously extended Ms. F very broad latitude in direct examination, cross-examination and calling witnesses out of order to accommodate her self-representation. Ms. F was provided a full opportunity, unrestrained by many normal procedural formalities, to present the case supporting her claims and in response to Wawanesa's. This hearing took significantly longer than I would have expected if Ms. F had been represented. But I believe that honouring Ms. F's right to full access to justice justified spending the extra time involved.

I do not take his comment that Ms. F was "unrestrained by many normal procedural formalities" to mean that he did not try to control the proceedings. The arbitrator returned to what he called a procedural vicious circle in the expenses decision: "When I allowed Ms. F to simply say anything she chose to, the hearing was unnecessarily prolonged. When I intervened, or Mr. Kirby objected to anything she said, the hearing would be prolonged in reaction to the intervention."

Indeed, the arbitration hearing lasted considerably longer than the norm. The arbitrator had the discretion to control the proceedings. He was not required to let Ms. F proceed unfettered, and he was required to consider objections raised by counsel for Wawanesa. I note that Ms. F's submissions took up most of the appeal hearing, so that Wawanesa did not get to respond until around 3:00 p.m., in an appeal on issues that are reviewable only on questions of law. At that, Ms. F was not submitting evidence or calling witnesses, matters that the arbitrator would have had to deal with. Considering the length of the arbitration hearing, I find it difficult to conceive that the arbitrator placed so many roadblocks in her way that Ms. F suffered a breach of natural justice.

Ms. F submits that the arbitrator fettered her presentation of her case in other ways. For instance, she submits that she should have been allowed to file her entire binder of materials as evidence and that he unfairly required her at one point in the hearing to select what she wanted to present as evidence. However, the arbitrator had to determine what was evidence and he had a wide discretion in how to admit it. I note that Ms. F was allowed to file specific documents from her binder that were put into evidence, and on appeal she did not refer to anything in the binder that the arbitrator needed to make his decision. The binder is in the record, of course, since portions from it were accepted as evidence. Parts of the binder consist of case law, which is not evidence. Large portions of it are simply applications by Ms. F for payment for various items and responses by the insurer for items that were not in issue at the hearing, so they were irrelevant – as were the many items that are difficult to see as any sort of possible benefit claimable under the SABS, such as receipts for food or office supplies. I can well understand the arbitrator's frustration at trying to make head or tail of this binder. The arbitrator discussed the binder in his expenses decision: "I do find that Ms. F's refusal from time to time to co-operate regarding locating and noting documentation she was referring to was completely unnecessary. I am referring to her inability at times to find documentation in her binder but refusing to concede that the same document was easily referenced in the insurer's filed materials." I find the arbitrator was not required to accept the binder as a single exhibit.

Ms. F submits that the arbitrator improperly prevented her from creating a visual time line using a large calendar board. However, that was also entirely within his discretion, especially considering that arbitrators generally prefer to consider the best evidence, which in this case would be Ms. F's own testimony and not a time line.

Ms. F gave as another example of alleged impropriety the filing of the two statements of claim arising out of her earlier injuries. However, Ms. F knew about the claims, since they were her own, and I see no error in the arbitrator considering them to be relevant in light of her pre-existing injuries. I have no reason to find they were dealt with inappropriately.

Ms. F submits that in his decision the arbitrator made a number of comments that showed bias against her. For instance, she submits that his description of her wanting an extra long mattress because she might marry a tall spouse was outrageous and was based on a tangential remark that was misquoted and taken out of context. Ms. F submits that the arbitrator's reference to the lawyer who assisted her at the expense hearing as a "McKenzie friend" was insulting and a reflection of his attitude towards her. Ms. F submits that the arbitrator's comment that she "quite evidently has an artistic temperament" is unclear and was in any event unnecessary.

Indeed, the arbitrator did make a number of impressionistic comments in his decision that could have been omitted without affecting the substance of his decision. However, I fail to see any evidence of bias in them. Rather, some of them seem to have been an attempt to personalize Ms. F beyond just being a claimant, such as the "artistic temperament" comment, or his remark that she was quite eloquent and frequently demonstratively emotive in her descriptions of how her life had changed as a result of the automobile accident. I see the reference to the "McKenzie friend" as his attempt to describe the role of counsel who assisted Ms. F without representing her. As for the remark about the bed, if it came from a tangential remark by Ms. F, it was treated equally tangentially, since as discussed below, the arbitrator found the mattress was not reasonable or necessary, whatever its size.

In summary, Ms. F made many submissions about the events leading up to and during the proceeding. However, Ms. F was afforded a number of days for what should have been a relatively straightforward hearing on a few distinct issues. I am not convinced that Ms. F suffered a breach of natural justice or that procedural error so vitiated the decision that a re-hearing is required.

Income Replacement Benefits

I will now turn to the substantive issues. Ms. F submits that the arbitrator made a number of errors in his findings. However, since much of the arbitrator's decision dealt with the assessment of the facts, my jurisdiction to review is limited.

The arbitrator found that Ms. F's employment consisted of acting, dancing and running a mobile massage business. He noted that the disability test set out in s. 4(1)1 of the SABS—1996 for the first two years after the accident required Ms. F to prove a substantial inability to perform the essential tasks of her pre-accident employment. He then examined the individual aspects of that employment. He noted that Ms. F was engaged in occasional acting-related work prior to the automobile accident and that her evidence was that she continued to do this after the accident. He noted that the evidence relating to the mobile massage business was that Ms. F was devoting approximately "three plus" hours per week to it just prior to the automobile accident in an attempt to revive a business that was "almost in non-existence." He noted that Ms. F provided no evidence describing her employment as a dancer prior to the accident, but that following the accident she secured a job teaching dancing to senior citizens and elementary private school students. The arbitrator found the post-accident employment strongly correlated with the type of work she was doing pre-accident. In addition, Ms. F's evidence and that of M. P., her former boyfriend, was that she worked as a retail clerk in Yorkville, mostly from Friday through Sunday up to 20 hours a week, commencing sometime in 2004. The arbitrator concluded: "When I consider the totality of this evidence related to employment, the only reasonable conclusion I can draw from it is that, even though she may have been experiencing physical pain and psychological stress, Ms. F continued to be able to do the vast majority of what she was doing prior to the accident after it."

As support for this finding, the arbitrator relied on evidence that Ms. F's income from employment, as recorded in her income tax returns, remained relatively constant before and after the accident. He went on to find that, even if he was wrong on the disability issue, the deduction for post-accident income under s. 6(2) of the SABS meant that any IRB entitlement would be erased by the deduction, especially since he found that her business income went up after the accident, and concluded: "She did not lose any income which needs to be 'replaced' by an income replacement benefit."

Finally, the arbitrator considered the matter of Ms. F's banking records. Wawanesa advanced funds to Ms. F to obtain banking records for an accountant's use to calculate precisely the amount of possible IRBs. Despite receiving these funds, Ms. F did not provide these records to Wawanesa notwithstanding its numerous requests for them. The arbitrator found that these records would have been relevant and useful. Accordingly, he drew the adverse inference that the records would have confirmed that post-accident income, when deducted from any possible IRBs, would leave Ms. F with no entitlement to IRBs.

Since the arbitrator concluded that Ms. F did not qualify for IRBs under the pre-104 week test, he also found that she did not meet the more stringent post-104 week test in s. 5(2)(b) (complete inability to engage in any reasonably suitable employment). He therefore concluded she was not entitled to any IRBs.

As set out above, the arbitrator made findings of fact about the level of Ms. F's pre- and post-accident activity, and I have no grounds on which to overturn them. An important aspect of these findings is that they were made before the arbitrator turned to the evidence about Ms. F's income. He went on to use the income evidence to bolster his finding, and Ms. F submits that he made significant errors in doing so. However, he had the tax returns before him and thus had evidence upon which to reach his conclusions. He was also not required to simply accept the testimony of Ms. F's accountant on the basis that Wawanesa did not call its own accountant: what is relevant is that the arbitrator had evidence to conclude no IRB was payable. I therefore have no basis upon which to intervene.

Medical and Rehabilitation Benefits

The arbitrator wrote that Ms. F researched the Tempur mattress on the Internet and he described it as a mattress that moulds to the sleeper. In support of her claim, Ms. F submitted a prescription, dated October 8, 2004, signed by Dr. I. Mohamed, her family physician, as well as a treatment plan and report prepared by Dr. James Rennie, "a family physician, who testified that he restricts his practice exclusively to providing psychotherapy for his patients," dated January 21, 2005. The arbitrator found that the evidence from Dr. Mohamed only raised the possibility of some improvement, which was insufficient to meet the test. As for Dr. Rennie, the arbitrator found that he acted more in the capacity of a concerned advocate for Ms. F than as an objective health care provider, and Dr. Rennie also testified that he never conducted a physical examination, had no evidence to offer about Ms. F's physical condition, and really did not know anything about this specific mattress. The arbitrator preferred the evidence of Dr. Todd Levy, who conducted a medical and rehabilitation DAC regarding the mattress claim. He accepted Dr. Levy's evidence that there are currently no published clinical studies related to this specific mattress and that his physical examination of Ms. F did not reveal the need for any special sleep aids.

Ms. F submits that the arbitrator erred in not referring to all of Dr. Rennie's treatment plans with respect to the mattress and for apparently relying on the insurer's copy of Dr. Rennie's report, submitting that the second page was missing from the insurer's version of the report dated December 14, 2004, and so he should have relied on her copy.³ Even if Ms. F is correct, I have just noted the arbitrator's discussion of the difficulties with Ms. F's organization and presentation of her evidence, so it is understandable if he preferred to use the insurer's copies of the evidence, considering that they were better organized. More importantly, the arbitrator had the actual testimony of Dr. Rennie and considered it in his decision, as discussed below. Finally, although the second page of the report does indicate that Ms. F's anxiety and depression were more debilitating, Dr. Rennie only refers to therapy and medication, not the matters at issue before the arbitrator. Accordingly, it was within the arbitrator's discretion to refer to and rely on Dr. Rennie's testimony in the way he did, and it was not necessary for him to refer to all the treatment plans.

Ms. F submits that the arbitrator failed to understand the point of Dr. Rennie's evidence, in that Dr. Rennie was focused only on the psychological benefits of the mattress, whereas the arbitrator focused on Dr. Rennie's failure to pinpoint any physical benefits. However, the arbitrator did discuss the psychological aspect: "Dr. Rennie also did not testify that such a mattress was psychologically reasonable and necessary for Ms. F." Ms. F also criticized the weight the arbitrator gave to Dr. Levy's DAC report about the mattress, considering that he referred to Dr. Levy as an orthopaedic surgeon and Ms. F provided a screen shot from the College of Physicians and Surgeons web site to show that he is not listed as having any specialty. However, the arbitrator only mentioned Dr. Levy's qualifications in passing, Dr. Levy was qualified to conduct the DAC, and I can see nothing in the decision to suggest that the arbitrator placed undue weight on Dr. Levy's evidence merely because the arbitrator described him as an orthopaedic surgeon. In any event, the weight to be given to evidence is an aspect of fact-finding, so it is very difficult for a delegate to find that the weight given to certain evidence was inappropriate. Ms. F also submits that it was unfair for the arbitrator to draw out the evidence about the lack of published reports on the benefits of the mattress. However, arbitrators are entitled to ask questions during a hearing. While Ms. F submits that she was prevented in giving testimony about the benefits of the mattress because the arbitrator said he was familiar with that type of mattress, ultimately what matters is that the arbitrator had before him no medical opinion to support the need for the mattress except the prescription by Dr. Mohamed, who gave no reason in it why the mattress might be necessary. The arbitrator did have the med/rehab DAC by Dr. Levy who said it was not reasonable or necessary, and the arbitrator set out the reasons he preferred the evidence of Dr. Levy. I have no reason to intervene.

With respect to the replacement portable computer, Ms. F never clarified for the arbitrator why she needed it. The arbitrator inferred that she wanted one that was lighter than her current model and that its only role would be to generate bills for massage clients on the spot. He concluded that her current computer would be sufficient if it was necessary for her occupation. Neither of the occupational therapists called by Ms. F supported the claim: Ms. Lynne Kozina found the equipment to be a cost of doing business; Ms. Susan Gregory — whom Ms. F specifically sought out based on her expertise in dealing with adaptive computer technology — was "definitively unwilling to conclude that Ms. F had any accident related need for the computer which she was requesting." She was only prepared to assist in determining a good computer if it was found to be necessary. As for Dr. Rennie, "he had no idea about Ms. F's computer situation or how the computer she was requesting differed from the technology she already had." In the opinion of Dr. Levy, the med/rehab DAC assessor, that expense was not reasonable or necessary. The arbitrator noted that there were clearly cheaper and handier mobility solutions if that was truly necessary — a conclusion that he did not accept in any event. The arbitrator therefore had evidence to conclude the computer was not reasonable and necessary.

The Neuropsychological Re-evaluation

The arbitrator found that Ms. F personally decided that she would benefit from this re-assessment. In 2000, Ms. F had been assessed in relation to her pre-accident traumas by Dr. Alina Kaminska, a neuropsychologist. Ms. F then provided Dr. Kaminska with the occupational therapy report that was prepared by Ms. Gregory in 2004 and in which Ms. Gregory set out that a neuropsychologist had suggested Ms. F should have a psychological assessment.

However, simply based on Ms. Gregory's report, Dr. Kaminska recommended a neuropsychological re-assessment. As the arbitrator noted:

This was notwithstanding that in her original neuropsychological report on Ms. F Dr. Kaminska strongly recommended that Ms. F obtain psychological counselling, as her assessment results were not what one would expect to arise out of a mild brain injury, and that her severe emotional distress was "clouding" the neuropsychological assessment of the etiology of Ms. F's cognitive deficits.... [S]he nonetheless went ahead and recommended a neuropsychological re-assessment without even inquiring into what, if anything, had happened to Ms. F between her initial assessment in 2000 and Ms. F's new, self-referred, request. [Emphasis in the original.]

The arbitrator expressed concern because Dr. Kaminska did not testify about who would benefit from the assessment, since she had no interest in following it up and because she admitted that Ms. F's ongoing emotional challenges could compromise the assessment.

The arbitrator also noted that a fast track Med Rehab DAC paper review had been conducted by a psychologist, Dr. Konstantine K. Zakzanis, in October 2005 on this issue. Dr. Zakzanis concluded that Ms. F suffered no loss of consciousness or retrograde or post-traumatic amnesia, and that traumatic brain injury surfacing now was unlikely. He concluded that, in such circumstances, a neuropsychological re-assessment would be unnecessary.

The arbitrator thus set out the grounds why he was not convinced that the neuropsychological evaluation was required. The arbitrator had before him the report of Dr. Zakzanis, on which he was entitled to rely, and he explained why he was not satisfied with Dr. Kaminska's explanation for its necessity.

Special Award and Expenses

The arbitrator had no jurisdiction to order a special award since he found Ms. F was not entitled to any benefits.⁴

The arbitrator considered the criteria set out in the Expense Regulation, Regulation 664, R.R.O. 1990, as amended. He found that there were no novel issues, no relevant offers to settle, and no aspects of the hearing that were improper, vexatious or significantly unnecessary. However, he found that Ms. F was completely unsuccessful in any of her claims and that, while Wawanesa also unsuccessfully claimed repayment of advances on IRBs, its claim played a very minor role in the arbitration. He also found that Ms. F's conduct of the hearing unnecessarily prolonged the process, as set out over several pages of both decisions. In light of these two criteria, he found that Wawanesa was entitled to its expenses of the hearing.

Ms. F submits that it was not choice but necessity that led her to represent herself. Therefore, Ms. F submits that the arbitrator unfairly focused on her lack of representation as prolonging the hearing when he pointed out she was represented in the court tort claims, had assistance by counsel at the expense hearing, and even claimed expenses for lawyerly advice.⁵ Ms. F is in part referring to this passage from the expenses decision:

I find that it is important to make a distinction between a unrepresented applicant who cannot, for whatever reason, find a lawyer or paralegal to represent her in a hearing and decides to fend for herself, and a person who acts without legal representation but clearly is getting advice from lawyers in "off the record" sorts of ways. The latter is in effect an example of "unbundling" legal services, a process that is becoming increasingly common. I find that if a person picks and chooses which legal services they will engage a representative for, then they have to accept the responsibility that goes along with that choice.

Indeed, I am not convinced by the arbitrator's distinction between unrepresented persons with background legal assistance and those without. However, that does not help Ms. F in this case. The relevant criterion in the expense regulation to be considered in awarding all or part of the expenses incurred in respect of an arbitration proceeding is criterion 4: "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." No matter the level of assistance, an unrepresented person has to accept responsibility for conduct that tends to prolong, obstruct or hinder the proceeding. The arbitrator presided over the hearing, considered the expenses regulation in relation to the hearing, and applied it in finding that Ms. F prolonged the hearing.

As for the amount of the expenses, the arbitrator did not accept all the claims made by the insurer. Although Ms. F submits that the issue of the bank records was not mediated, mediation is only required for benefits and not for expenses, which is what the arbitrator found the monies paid to be. I see no error in his finding the monies advanced to be arbitration expenses, since they would have been used by Wawanesa's own accountant to determine the amount of the IRBs, and the amount of the IRBs were clearly at issue in this hearing. He also found that if the records had been produced the hearing likely would have been shorter, and he also found they were not simply the costs of adjusting the file. These are findings he was entitled to make. At the end of the day, the awarding of expenses is at the discretion of the arbitrator, as long as the relevant criteria are considered.

Since the arbitrator did consider the criteria, I have no reason to intervene.

Sufficiency of Reasons

Ms. F submits that the arbitrator's reasons were insufficient because he did not cite all the evidence and did not refer to the case law she cited.

However, reasons may be sufficient even if an arbitrator does not recite all the evidence. For instance, in State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099, the Divisional Court reversed the decision of a delegate. After noting that the delegate criticized the arbitrator's findings of credibility on the basis that some of the findings were based on factual errors or failed to consider all the evidence, the court stated: "Not reciting all the evidence does not mean the arbitrator failed to consider it." [Para. 3.] Furthermore, this was a very facts-oriented decision, turning as it did on the assessment by the arbitrator of the evidence presented by Ms. F. There was little obvious necessity to cite case law.

Ms. F relied on the delegate's decision in Kanareitsev and TTC Insurance Company Limited, (FSCO P05-00021, September 18, 2006)⁶ to support her submission that the arbitrator failed to provide sufficient reasons because he did not write for the loser. In that decision, the delegate noted that reasons must provide more than just a description of the evidence and the findings but must also explain the outcome. She added that, in practical terms, adjudicators should write for the loser. However, that is a suggestion and not a statement of law. Furthermore, I find that the arbitrator did write for the loser, in the sense that he sought to explain and support his decision in several ways; in fact, often he wrote more than he had to, adding obiter dicta comments — comments that were not necessary — that Ms. F devoted time in her appeal to rebutting. For instance, after the arbitrator found that Ms. F was not entitled to a special award because of a lack of entitlement, he added comments about how Wawanesa's adjuster had tried to help Ms. F and how Ms. F may have misconstrued the adversarial process. Since these comments were obiter, it is also unnecessary for me to deal with Ms. F's submissions on them.

Beyond that, the arbitrator did more than just describe the evidence and state a finding. He gave lengthy reasons for each claim made by Ms. F. Moreover, he did not have to engage in a detailed analysis of each and every aspect of the major points in issue: rather, it was sufficient for him to refer to the principal evidence he relied upon and provide a justification for his conclusions, and he did so.

Conclusion

I find that the arbitrator's decisions stand and that the appeal is dismissed.

V. EXPENSES

Although I had originally planned to have the parties make submissions on appeal expenses at the appeal hearing, I deferred that once it became clear that Ms. F's submissions were going to take up most of the day. However, in light of Ms. F's failure to succeed on her appeal, it is highly unlikely that she would receive her expenses. Ms. F appears to have recognized this herself, since on page 1 of her submissions she writes: "If Ms. F is successful she seeks her costs." Accordingly, any expense hearing, if it is required, will deal only with whether and to what extent Wawanesa should receive its expenses. If the parties are unable to agree about Wawanesa's expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.