Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 147

FSCO A08-000172

BETWEEN:

HAMIDREZA DARYOOSH ADAMI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before: William J. Renahan

Heard: Written submissions received by August 14, 2009

Appearances: Raymond Watt for Mr. Adami

Donald G. Cormack for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Hamidreza Daryoosh Adami, was injured in a motor vehicle accident on February 22, 2002. In a decision dated June 10, 2009, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders:

Mr. Adami is entitled to income replacements benefits from March 15, 2002.
The amount of income replacement benefit from March 15, 2002 to July 15, 2002 is $329.35 per week less a deduction under subsection 6(2) of the Schedule to account for gross weekly income of $109.37. The amount of income replacement benefit from July 16, 2002 to August 11, 2004 is $329.35 per week less a deduction under subsection 6(2) to account for gross weekly income of $55. The amount of income replacement benefit from August 12, 2004 is $329.35 per week.
Mr. Adami is entitled to interest on overdue weekly income replacement benefits from June 25, 2003 in accordance with section 46 of the Schedule.
Mr. Adami is not entitled to a special award.
The issues of entitlement to and amount of expenses is deferred.

The issue in this further hearing is:

Is either party entitled to expenses incurred in respect of this arbitration hearing?

Result:

Neither party is entitled to expenses in respect of this arbitration hearing.

EVIDENCE AND ANALYSIS:

Mr. Adami seeks expenses of the arbitration proceeding. Wawanesa did not ask for expenses of the proceeding.

The criteria I should consider in determining entitlement to expenses of the arbitration proceeding are set out in section 12 of Ontario Regulation 664, R.R.O. 1990, as amended, at the time the application for arbitration was filed. I consider each of the six criteria in order.

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

Mr. Adami succeeded on the issue of entitlement to an income replacement benefit and established an amount. Wawanesa succeeded in defending the claim for a special award. Success on the issues was mixed. The award, including interest, is approximately $300,000. The parties have not yet agreed on an exact calculation of the amount of interest. Mr. Adami achieved significant financial success.

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

By letter dated April 15, 2009, five days before the commencement of the hearing, Mr. Adami offered to settle the issues of the arbitration for $286,233.30 plus costs and disbursements. The award exceeds this amount. Wawanesa would have benefited financially if it had accepted this offer of settlement.

Whether novel issues are raised in the proceeding.

The most significant legal issue in the hearing was how to construe the word “legitimate” in section 4(3) of the Schedule. I followed arbitration case law. The factual issues were straightforward. No novel issues were raised.

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.

Overall, both parties co-operated to narrow the issues. Wawanesa did not seriously contest issues of disability or causation. The main issue was whether the contract of employment between Hamid Adami and his brother’s trucking company was “legitimate.”

In the Reasons for Decision I noted that Wawanesa requested information concerning the alleged contract of employment in order to adjust the claim. On July 15, 2003, Wawanesa asked

Mr. Adami for documentation:

supporting that you qualify for the purported job. What degrees, certificates, qualifications, skills, licensing do you possess to carry out the job described to Immigration Canada? What is you education background? What is your job history?

I found that the request was reasonable and that the information was clearly identified and in the possession of Mr. Adami. The request was made about six years before the hearing, and much of the probative information was produced either shortly before the hearing or at the hearing. At the hearing, Wawanesa did not object to the late production of the evidence and did not dispute its reliability. I found the evidence straightforward and relied on it in making my decision.

Following is some of the relevant evidence which I found probative of whether the contract of employment was legitimate and the date the evidence was produced:

(a) a cancelled cheque from Gholam Adami’s company to his brother, Hamid Adami, for work Hamid did from March 1 to March 15, 2002. This was followed by a second cheque which was partly gift and partly for work done by Hamid. Mr. Cormack saw these cheques on the first day of the hearing. It was part of a package sent to Wawanesa’s accountants in relation to Gholam’s claim for accident benefits.

Gholam’s claim was scheduled to be heard with Hamid’s claim. The parties advised me that Gholam’s claim was settled. In preparation for Gholam’s claim, Mr. Cormack found the cancelled cheques in Gholam’s banking records which included 30 sheets of cancelled cheques. The accountants who worked on Gholam’s claim had asked Gholam several times who “H.R. Adami” was and received no response.

(b) Mr. Adami’s immigration application form and documents submitted to Canada Immigration to support the application included translations of documents which described Mr. Adami’s experience in Iran in the trucking industry. Mr. Adami has had possession of these documents since 1999. Mr. Watt referred me to a letter dated May 14, 2008 in which Mr. Cormack acknowledged receipt of the Immigration File. On the first day of the hearing, Mr. Cormack said that he received a further series of documents in support of Mr. Adami’s application to enter Canada. I find that these are the translated documents which set out Mr. Adami’s work history in the trucking industry in Iran and which I refer to in my decision. Mr. Watt also referred to Mr. Cormack’s failure to follow up on the offer of Mr. Adami’s previous representative to full access to Mr. Adami’s Immigration File. I agree with the reasons expressed in Bali and AXA Insurance (Canada), FSCO A03-000698, November 9, 2004, that if an insurer does not agree to proceed by way of authorizations, the applicant has the obligation to satisfy production requirements and that it is incumbent on parties to an arbitration to collect and present evidence to support their claims.

(c) Mr. Adami produced a copy of his Iranian driving licence which authorized him to drive trucks in Iran. He produced this 11 days before the hearing.

(d) Mr. Adami received an air brake endorsement on his Ontario driver’s licence on June 17, 2003. He produced this during his testimony.

I found this evidence highly probative of the issue of whether the contract of employment was legitimate and that it was not produced to Wawanesa until shortly before the hearing or at the hearing itself.

Further, Wawanesa could not have calculated the amount of any income replacement benefit because Mr. Adami did not provide evidence of his post-accident income until he testified at the hearing, even though Mr. Cormack requested that information more than a year before the hearing.

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

The evidence and information upon which I found that Mr. Adami had a legitimate contract of employment was straightforward and not seriously contested. Wawanesa requested much of this information and similar information six years before the hearing.

Although the settlement offer was very close to the entire amount in dispute, it was reasonable because it was less than the final award. However, Wawanesa could not have known that the offer was reasonable until it was aware of the documentary evidence which Mr. Adami produced at the hearing.

This proceeding was unnecessary and the parties could have avoided it if Mr. Adami had provided the information concerning his work history when Wawanesa asked for it.

Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42(10) of that regulation.

This criteria is not applicable.

Conclusion:

Having regard to all the criteria, I find that Mr. Adami is not entitled to expenses of the arbitration proceeding.

October 29, 2009

William J. Renahan

Arbitrator

Date