Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2009 ONFSCDRS 119
Appeal P09-00024
OFFICE OF THE DIRECTOR OF ARBITRATIONS
PARITOSH BHADA
Appellant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Respondent
BEFORE:
Delegate Lawrence Blackman
REPRESENTATIVES:
Mr. Gary Mazin for Mr. Paritosh Bhada
Mr. Alexander Lempp for Security National Insurance Co./Monnex Insurance Mgmt. Inc.
HEARING DATE:
By written submissions received August 31, 2009
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The July 17, 2009 Notice of Appeal herein from a preliminary or interim expense order is rejected, without prejudice to either party advancing, within the requisite time limits, a further appeal upon the issuance of the Arbitrator’s decision on entitlement to and the quantum of legal expenses.
September 3, 2009
Lawrence Blackman Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
In his January 23, 2009 decision, Arbitrator Leitch (the “Arbitrator”) determined the entitlement of Mr. Bhada (the “Appellant”) to payment of benefits claimed under the Schedule.1 The Arbitrator stated, in part, that the parties were to advise within thirty days if they could not agree on legal expenses.
The Appellant’s August 31, 2009 written appeal submissions state that the parties could not agree on legal expenses and that an initial arbitration expense hearing was scheduled for June 19, 2009. The Arbitrator subsequently gave written notice that he might make an expense order personally against the Appellant’s counsel, Mr. Gary Mazin, under subsection 282(11.2) of the Insurance Act, R.S.O. 1990, c. I.8, and provided Mr. Mazin an opportunity to provide submissions in this regard.
Mr. Mazin advised that he required the transcript of the arbitration hearing before making his submissions. The Arbitrator’s July 3, 2009 letter stated that “any transcript of the arbitration hearing will not form part of the record as the reporter was not sworn,” citing N.I. and Allstate Insurance Company of Canada, (FSCO P07-00024, December 2, 2008).
The July 17, 2009 Notice of Appeal appealed the Arbitrator’s July 3, 2009 order and requested an order that the Respondent “provide their consent to ordering the transcript and the contact details of the reporter.” The Appellant further asked that the expense hearing be stayed until the transcript could be reviewed. The Notice of Appeal failed to advise that an initial expense hearing had been held and that the hearing was scheduled to resume.
Upon this office’s receipt of the Response to the Notice of Appeal on August 17, 2009, I wrote the parties that I had been appointed the Director’s Delegate in this matter. I indicated that:
exercising my discretion under Rule 56.5 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the “Code”), I would be deciding on the basis of written submissions (a) whether to stay the Arbitrator’s July 3, 2009 order, and (b) whether to allow this appeal from a preliminary or interim order to proceed;
the parties had until August 31, 2009 to file any additional submissions upon which they intended to rely. The submissions were to include any documentation the parties submitted should form part of the appeal record;
I had not been provided with the Arbitrator’s July 3, 2009 order and requested a copy of same; and,
if there was urgency requiring an earlier resolution of these issues, I was to be advised by return e-mail.
The Appellant responded by written submissions received August 31, 2009, advising for the first time that on July 31, 2009 the parties had provided their submissions regarding Mr. Mazin’s personal liability for legal expenses.
Hence, both parties agree that the issue of the requested stay is now moot.
As to whether the appeal from the Arbitrator’s preliminary expense order should be accepted, the Appellant, citing Allstate Insurance Company of Canada and Torok, (FSCO P01-00021, May 29, 2001), argued that there was apparent strength in the appeal, that the circumstances herein were unique and that rejecting the appeal would prejudice Mr. Mazin.
The Appellant’s written submissions alleged that the Respondent had failed to respond to his request for the court reporter’s place of employment. The August 14, 2009 Response to Appeal identifies the court reporter as Professional Court Reporters.
The Respondent’s August 31, 2009 written submissions submit that the parties are now awaiting the Arbitrator’s expense decision. If legal expenses are not awarded against Mr. Mazin personally, then this entire appeal from a preliminary or interim order will be moot.
I agree.
Accordingly, exercising my discretion pursuant to Rules 50.2 and 51.2(c) of the Code, I reject the July 17, 2009 Notice of Appeal as being from a preliminary or interim expense order that does not finally decide the issues in dispute. This order is without prejudice to either party advancing, within the requisite time limits, a further appeal upon the issuance of the Arbitrator’s decision on entitlement to and the quantum of legal expenses. In accordance with the reasoning in Torok, I am persuaded that such a result will “… facilitate the most cost-effective resolution of disputes by minimizing the time and money spent on procedural or collateral matters.”
Neither party addressed the legal expenses of this appeal proceeding and I make no order in this regard. This is without prejudice to either party seeking their expenses of this appeal from a preliminary or interim order, should a further appeal be initiated.
September 3, 2009
Lawrence Blackman Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.