Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 140
FSCO A04-001685
BETWEEN:
GURDIP SINGH
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Suesan Alves
Heard: By written submissions received by July 13, 2009.
Appearances: Tal Eshel for Mr. Singh
Keri Wilson for Guarantee Company of North America
Issues:
The Applicant, Gurdip Singh, was injured in a motor vehicle accident on July 28, 1999. He applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended in relation to his claims for medical and rehabilitation benefits payable under the Schedule.1 Guarantee disputed that Mr. Singh required these benefits as a result of the accident or that they were reasonable or necessary. Guarantee also raised a limitation defence which it subsequently withdrew.
Guarantee requests a stay of the arbitration, and an Order that the Applicant’s representative be required to pay its expenses. In a third motion, Ms. Eshel requests a determination that she is not Mr. Singh’s representative, or in the alternative an order removing her as Mr. Singh’s representative.
The issues in this hearing are:
Should this arbitration be stayed?
Is the Insurer entitled to an award of expenses?
Should Ms. Eshel be removed as Mr. Singh’s representative?
Result:
The arbitration should not be stayed.
The Insurer is not entitled to an award of expenses.
The further motion by Ms. Eshel for a determination that she is not Mr. Singh’s representative, or in the alternative for an Order removing her as Mr. Singh’s representative is adjourned for Ms. Eshel to serve these materials on the Applicant.
EVIDENCE AND ANALYSIS:
Mr. Singh applied for arbitration in relation to his claims for medical and rehabilitation benefits as a result of a motor vehicle accident in July 1999. There are three motions before me: The first is Guarantee’s request for a stay of the arbitration. The second is Guarantee’s request that the Applicant’s representative be required to pay its expenses—be that Ms. Eshel, or her employer, Canadian Injury Centres. In the third motion, Ms. Eshel requests a determination that she is not Mr. Singh’s representative, or in the alternative an Order removing her as Mr. Singh’s representative. I will deal with each of these motions in turn.
Evidentiary concerns
Both parties filed materials which contained written submissions and documents for use on these motions. While the rules of evidence are somewhat more relaxed at this Commission than in a court setting, given the nature of the relief requested by each party, it would have been preferable to have Affidavit evidence. For example, if granted, a stay would stop Mr. Singh’s claims from proceeding to a hearing. This would be a serious intrusion on the Applicant’s right to have his claims adjudicated on the merits.
Ms. Eshel’s materials contain a letter addressed to her client, dated June 28, 2009, in which she makes statements which are prejudicial to Mr. Singh’s interests and confirms her advice to him. Those communications are privileged for the reasons given by Master Dash in Chancey v. Dharmadi, 2007 CanLII 28332 (ON S.C.) which I adopt.2
The privilege belongs to Mr. Singh and there is no indication that he agreed to waive it. Waiver requires informed consent. The circumstances of this case suggest that it is entirely possible that Mr. Singh did not receive the letter contained in the brief before it was filed on July 2, 2009.
The letter from Ms. Eshel addressed to Mr. Singh purports to have been sent by registered mail on June 28, 2009, a Sunday. The earliest date on which Ms. Eshel could have registered that letter was on Monday, June 29, 2009. This left June 30, 2009 for a possible delivery to Mr. Singh, since July 1, 2009 was a statutory holiday. As noted earlier, the brief was filed with the Financial Services Commission of Ontario on July 2, 2009.
I disregarded the contents of Ms. Eshel’s materials in determining the Insurer’s stay application for two reasons: firstly because of my duty to disregard the contents of that letter and secondly because the written submissions contain factual inaccuracies.
In Bell v. Smith, 1968 CanLII 17 (SCC), [1968] S.C. R. 664, Justice Spence cited with approval, a passage of Lord Chancellor Eldon in the case of Beer v. Ward (1821), Jacob 77, 37 E.R. 779, at p. 80:
. . . it would be the duty of any Court to stop him if he was about to disclose confidential matters . . . the Court knows the privilege of the client, and it must be taken for granted that the attorney will act rightly, and claim that privilege; or that if he does not, the Court will make him claim it.
In my view, it would be improper in these circumstances to use the contents of Ms. Eshel’s letter to Mr. Singh as evidence against him in these proceedings.3
The conflated and confused sequence of events, particularly at paragraph 9 in Ms. Eshel’s written submissions, is contradicted by documents in the Commission’s arbitration file. In Ms. Eshel’s materials, events which took place in 2006 and 2007 are stated to pre-date the application for arbitration which was filed in 2004.
- Request for a stay
The Insurer sought an order that the Applicant is precluded from proceeding with this arbitration based on his delay in these proceedings; his failure to provide Guarantee with his OHIP records and clinical notes and records of his family physician, both from three years pre-accident; and his failure to attend insurer examinations. For the reasons which follow, I am not persuaded that a stay should be granted.
Delay
According to my review of the arbitration file, Mr. Singh’s application for arbitration was filed in August 2004. A pre-hearing was held in February 2005. In June 2005, counsel for the Insurer advised the Commission that the parties had settled the issues in dispute and the Commission cancelled the July 2005 arbitration hearing dates.
In August 2005, Ms. Eshel advised counsel for Guarantee that the Applicant would not accept the settlement and the arbitration would have to be rescheduled.
In May 2006, a further pre-hearing was held. At that time, dates were set for a resumption of the pre-hearing in July 2006; for a preliminary issues hearing in August 2006; and for a substantive issues hearing in November 2006.
In July 2006, at the resumed pre-hearing discussion, the parties’ representatives advised they had settled the preliminary issue. A settlement discussion took place with respect to benefits. Guarantee agreed that failing settlement, the further treatment plan would be added to the issues to be arbitrated. A resumption of the pre-hearing was scheduled for August 2006 to resolve any outstanding production problems and to identify any additional witnesses to be called at the November 2006 hearing.
In July 2006, the Applicant’s representative served a report of Dr. G. Lee, chiropractor. Dr. Lee opined that Mr. Singh suffered from chronic post-traumatic headaches; chronic bilateral TMJ dysfunction; chronic low back, left hip, left knee and left ankle joint dysfunction; and de-conditioning. He recommended a neuropsychological evaluation, a consultation with a dental specialist, enrolment in a chronic pain program and physical therapy sessions to relieve his pain.
At the August 2006 resumption of the pre-hearing, the Applicant’s representative relied on Dr. Lee’s report with respect to additional treatment claims for her client. Counsel for the Insurer advised that it wished to conduct an insurer’s examination in relation to the chronic pain issue.
In light of these developments, the parties’ representatives agreed to vacate the existing hearing dates and set fresh hearing dates for April 2007.
The parties’ representatives agreed on further productions. An interest was expressed in settlement and a resumption of the pre-hearing was scheduled to allow the insurer examination before those discussions took place.
The pre-hearing resumption was scheduled for February 2007. In February 2007, the Applicant’s representative requested an adjournment. Counsel for the Insurer consented to the adjournment.
She advised that although she requested treatment plans and reports she had only received one report. The parties’ representatives agreed to vacate the April 2007 hearing dates and instead have a settlement discussion in April 2007 by teleconference call.
In September 2007, the Commission wrote to Mr. Singh to advise that his representative had not complied with the regulation for statutory accident benefits representatives. He was offered a chance to confirm that Ms. Eshel met the new filing requirements; to proceed without a representative; or to obtain different representation. He was informed that if he did not respond, the Commission would assume that he wished to proceed without a representative. The Case Administrator also contacted Ms. Eshel to advise that she was shown on the Commission’s records as someone who had not as yet complied with the new regulation.
In October 2007, counsel for the Insurer wrote to the Applicant’s representative and advised that Mr. Singh failed to attend a section 42 assessment it arranged with Dr. McKean, a dentist, on May 15, 2007, and expressed concern that its many requests for OHIP records and clinical notes and records of Mr. Singh’s family physician remained unanswered.
In April 2008, the Case Administrator inquired of the parties’ representatives whether the matter had settled and if it had not, she wished to get the matter back on the rails. Counsel for the Insurer advised that the Applicant had left Canada; the case had not settled; and it fell to the Applicant’s representative to bring this matter forward. In June and in August 2008, counsel for the Insurer wrote to the Commission in follow-up.
A notice of rescheduled pre-hearing issued by the Commission on April 28, 2008, shows the Applicant’s representative as Tal Eshel, 19 Beaumont Place. Formerly, the Applicant’s representative was shown as Ms. Tal Eshel, Canadian Injury Centers.
A resumption of the pre-hearing took place on November 21, 2008. At that time, counsel for the Insurer advised that it intended to bring a motion to stay these proceedings. The parties’ representatives agreed to timelines for serving and filing their materials and to a hearing date of May 4, 2009. Guarantee filed its materials and met its deadline; Ms. Eshel did not file her materials which were due on March 2, 2009.
Ms. Eshel represented the Applicant in a settlement discussion before Arbitrator Miller on April 21, 2009.
On May 1, 2009, Ms. Eshel requested an adjournment of the preliminary issues hearing so that Mr. Singh could obtain a new representative. Counsel for the Insurer opposed the request. As far as I can determine, this is the first occasion on which the Insurer opposed an adjournment request initiated on behalf of the Applicant.
On May 4, 2009, Ms. Eshel submitted that she was not the Applicant’s representative. She submitted that Mr. Singh retained her employer, Canadian Injury Centres, which closed in February 2009. She represented that she had now retrieved Mr. Singh’s file, and that there was a retainer agreement between Mr. Singh and her employer, which she could file with the Commission.
When asked how she could have conducted settlement negotiations without authority, Ms. Eshel stated that she was just trying to help Mr. Singh. She was given the opportunity to regularize her status by June 2, 2009. However, she did not file the retainer agreement with her employer. Instead, she brought a motion for an Order that “Tal Eshel-Berkman has withdrawn and no longer represents the Applicant, Mr. Gurdip Singh, in this matter.”
Her materials described her as Legal Representative for Mr. Gurdip Singh. Paragraph 3 of her Affidavit in support of that motion stated: “I have acted for Mr. Singh in relation to this matter, but I am unable to continue acting on Mr. Singh’s behalf, due to the breakdown of the relationship between Mr. Singh and me.” This sworn statement conflicted with her oral submissions on May 4, 2009. The motion was refused as Mr. Singh did not agree that there had been a breakdown in their relationship; because of her outstanding obligation to file submissions by March 2, 2009; and because Mr. Singh had 56 days remaining in which he could assert claims for medical and rehabilitation benefits. The timing of the withdrawal could therefore be prejudicial to Mr. Singh’s assertion of such claims, particularly those which might be in progress.
Conclusion on delay
Guarantee submitted that there had been inordinate delay and that numerous adjournments had been afforded the Applicant to obtain and produce relevant documentation and to attend section 42 assessments.
This arbitration proceeding was commenced in 2004. A pre-hearing was held, hearing dates were set and the matter was “settled” in June 2005. However, Mr. Singh did not sign the releases and the matter “unsettled” by August 2005.
Once a fresh pre-hearing date was obtained in 2006, adjournments have been requested, usually on behalf of the Applicant and were granted with the Insurer’s consent. Resumptions were scheduled for specific purposes and were also arranged on consent. Both parties bear a cost for the preparation time and attendance on each resumption or proceeding. Although the hoped for result was not always achieved, when these steps were taken on consent I am not persuaded that blame for delay should be attributed to either party. As far as I can determine the first and only adjournment request which the Insurer contested was that in May 2009.
I accept there has been some delay while Mr. Singh was out of the country at some point in time or times, perhaps during part of 2007 and 2008. There was institutional delay of about a year for which neither party can be faulted.
Delay can be prejudicial to an insurer because the interest awarded on overdue benefits continues to accumulate. In this case, the Applicant waived both interest and expenses at the initial pre-hearing in 2005. I am not persuaded that his delay in this case has been such that a stay should be granted. Rather, the matter should be pushed on to a hearing on the merits.
Productions
The Insurer alleged that the Applicant failed to provide Guarantee with his OHIP records and clinical notes and records of his family physician, both from three years pre-accident.
The pre-hearing discussion at which these documents were requested took place in August 2006. Counsel for the Insurer sent numerous letters to the Applicant’s representative requesting these records commencing October 2006 without a response. In October 2007, Guarantee’s claims examiner wrote directly to Mr. Singh asking him to provide a decoded OHIP summary or clinical notes and records from his family physician from three years pre-accident to present. Guarantee advised that if he failed to co-operate, Guarantee reserved its right to require him to submit to an examination under oath. The letter was copied to Ms. Eshel. Neither of the records requested was provided.
The Insurer submitted that it had suffered prejudice as medical records, such as family physician’s notes and decoded OHIP summaries, may no longer be available for the relevant time periods.
Conclusion on productions
These productions were agreed to since August 2006. It is unacceptable that they have not as yet been provided. It would appear from Ms. Eshel’s oral submissions on May 4, 2009 that Mr. Singh had once provided authorizations to obtain this information; however, they were now more than six months old and stale dated. It is unclear whether the productions were not obtained because of the Applicant, because of his representative, or both.
In my view, the appropriate remedy is to order the Insurer to provide the Applicant with fresh releases, order the Applicant to sign them so that the Insurer can obtain the productions and provide the Applicant with copies of the documents obtained pursuant to those authorizations. If some of these records are in fact no longer available, the Insurer can make the argument as to any actual prejudice to the hearing arbitrator, who can fashion an appropriate remedy.
Insurer examinations
Guarantee alleged that Mr. Singh had failed to attend two insurer examinations which it reasonably required.
Section 42 of the Schedule imposes a number of requirements on an insurer with respect to the arrangements for an insurer examination. Some of these requirements are based on the case law which has developed. In my view, on a stay request based on an insured person’s failure to attend an insurer’s examination, the Insurer must establish more than the fact that the Applicant did not attend the examination. It is also obliged to show that it complied with the requirements which are imposed on an insurer in arranging such examinations by section 42 of the Schedule.
These requirements include establishing that the examination was required to assist it in determining entitlement to a benefit; that the insured person was given notice in a timely fashion; that the notice set out the reasons for the examination, the type of examination, informed him that his attendance was required, and provided the names and qualifications of the examiner. In addition, the Insurer should show that it made reasonable efforts to schedule the examination for a day and time that were convenient to the insured person; and that the location for the examination was within the distance prescribed by section 42, or was otherwise reasonable.
Based on the material which was filed, I am unable to determine whether the Insurer complied with the notice requirements of section 42 of the Schedule.
In July 2006, Ms. Eshel served a report of Dr. Gary Lee, chiropractor, and advised Guarantee that further treatment plans would be forthcoming from Dr. Lee. The matter was adjourned so that the Insurer could obtain a chronic pain assessment. I have no information as to whether this assessment was arranged and if so, whether or not Mr. Singh attended this assessment.
The Insurer filed a report from Dr. T. W. McKean, a dentist, dated May 18, 2007. It appears from that report that at some point the Applicant’s representative provided Guarantee with a report from Dr. Laibovitz, a dentist, dated January 6, 2007, with respect to Mr. Singh’s claims for treatment for a TMJ disorder. Guarantee arranged a section 42 examination.
Dr. McKean reported that Mr. Singh did not attend an examination before him on May 15, 2007. According to a letter from counsel for the Insurer, Guarantee rescheduled the appointment before Dr. McKean in November 2007, however, Mr. Singh did not attend.
Conclusion on insurer examinations
I accept that the Insurer has established that an examination by a dentist was reasonable on its face in relation to Mr. Singh’s claims for treatment of a TMJ disorder. It has also established that Mr. Singh did not attend examinations arranged in May and November 2007.
However, I have no evidence as to whether and when notice was given to Mr. Singh regarding either appointment. For these reasons I am not persuaded that the Insurer has established that it complied with the notice requirements of section 42 of the Schedule.
Conclusion on stay request
I have rejected each of the grounds Guarantee raised to support its request for a stay. I have also considered whether the three grounds taken together should result in a stay of the arbitration and conclude that they should not.
Mr. Singh’s claims for medical and rehabilitation benefits are now capped as the ten-year period since the date of the accident during which he could assert claims for those benefits has now elapsed.
The Case administrator will contact the parties to schedule a further resumption of the pre-hearing. The Commission will again make arrangements and pay for an interpreter to assist Mr. Singh at the resumed pre-hearing.
- Insurer’s claim for expenses
Guarantee claimed its arbitration expenses from the date it filed its Response in August 2004. Guarantee submitted that Ms. Eshel had been Mr. Singh’s representative throughout this proceeding and that she should pay those expenses.
Ms. Eshel submitted that an award of costs should not be made against her personally and that she had “at all times, acted in good faith, diligently, and conducted myself in accordance with all appropriate and reasonable standards of the profession.”
According to the initial pre-hearing report in March 2005, the Applicant’s representative waived claims for interest and for expenses. Counsel for Guarantee “advised that the insurer is not claiming its expenses of the arbitration.” I am not persuaded that in these circumstances I should award arbitration expenses to either party.
- Removal of the Applicant’s representative
In her brief, “Tal Eshel’s Reply to the Insurer’s Written Submissions” filed on July 2, 2009, Ms. Eshel asked this tribunal to recognize that she is not Mr. Singh’s legal representative in relation to this matter. In the alternative, she renewed her request to be removed as Mr. Singh’s representative. Given these requests, those materials should have been served on her client. I have nothing to indicate that is the case. I adjourn her motion so that she can serve Mr. Singh.
The contents of the brief raised a concern as to whether the Applicant’s representative understood her duty of confidentiality to her client or her duties as an advocate. In addition to the issues raised at pages 3 and 4 of this decision, she made entirely unfounded allegations of “sharp practice” against counsel for the Insurer.
I have considered whether I should order Ms. Eshel excluded as an agent under section 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended. Under that section, arbitrators at the Financial Services Commission of Ontario once had the power to exclude anyone, other than a barrister and solicitor, from a hearing if he or she found that the person was not competent to represent a party or did not understand and comply with the duties and responsibilities of an advocate.
That provision was amended in 2006 to provide that “A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act.” Ms. Eshel is a licensed paralegal under the Law Society Act, and therefore I cannot order her excluded from these proceedings on either basis.
It is, of course, open to Mr. Singh to agree with Ms. Eshel that she should not represent him, retain a new representative, or decide that he wishes to represent himself.
October 16, 2009
Suesan Alves
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 140
FSCO A04-001685
BETWEEN:
GURDIP SINGH
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The request for a stay of the arbitration is dismissed.
Guarantee Company of North America shall provide Mr. Singh and his representative with authorizations in suitable form to permit it to obtain Mr. Singh’s OHIP records and the clinical notes and records of his family physician from 1996 forward, within 15 days. Mr. Gurdip Singh shall sign those authorizations and return them to the insurer within a further 10 days.
The request for expenses by Guarantee Company of North America is dismissed.
Ms. Eshel’s motion is adjourned for service on Mr. Singh.
October 16, 2009
Suesan Alves
Arbitrator
Date
Master Dash went on to consider whether the communications were protected on the basis of case by case privilege. After examining each of the four Wigmore criteria, he concluded that the communications between client and paralegal were protected and should be excluded. The criteria were
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation
Master Dash held that the first criterion was met because of affidavit evidence of the paralegal and the client “that each expected the communications between them would remain confidential and not be disclosed” … “Clearly most clients would expect their legal representative, be it lawyer or paralegal, to treat their discussions as confidential.”
The second criterion was met because “the element of confidentiality is essential to the full and satisfactory maintenance of the relation between client and paralegal.... and is now specifically mandated by the Paralegal Rules of Conduct” which deal with confidentiality.
The third criterion was met because “Paralegals provide access to justice and legal representation to clients who would otherwise proceed unrepresented. Such persons would not have the treatment and benefit of the law equal to those who could afford to retain a lawyer. ... Access to justice is obviously a goal to be sedulously fostered by the community. It promotes the right of every person embodied in s. 15 of the Charter to equal treatment and benefit of the law. ... The Paralegal Rules of Conduct provide that the Rules be interpreted in a way that recognizes that “a paralegal, as a provider of legal services, has an important role to play in a free and democratic society and in the administration of justice.” ...The failure of the court to protect as confidential communications between paralegal and client sends a message to the public that there is a “two-tier” justice system in effect. Clearly the community has recognized that the relationship between a paralegal and client must be sedulously fostered.”
The fourth criterion was met because “the relationship between paralegal and client would suffer substantial injury if the client could not be assured that his communications with his paralegal would be held in confidence.... it would be a rare case where the benefit gained for the correct disposition of the litigation would outweigh the very significant detriment to the relationship between paralegal and client.”
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Master Dash held that there was no principled reason why communications between paralegals and their clients should not be protected by a class privilege which he termed paralegal-client privilege; however, he declined to make such a finding without a proper factual matrix.
- See also the reasons given in Double-E, Inc. v. Positive Action Tool Western Ltd. 1988 CanLII 9464 (FC), [1989] 1 F.C. 163; 21 F.T.R. 121; 20 C.P.R.(3d) 195 (T.D.) “this Court is unwilling to accept the incredibly unjust notion, which includes just any means of obtaining evidence, including the illegal, to be a proper jurisprudential basis for overcoming solicitor client privilege... the notion is no longer fit for Canadian jurisprudence.”