Alexander Maryasin (The Estate of) v. ING Insurance Company of Canada, 2009 ONFSCDRS 45

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2009 ONFSCDRS 45

Appeal P08-00011

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ALEXANDER MARYASIN (THE ESTATE OF)

Appellant

and

ING INSURANCE COMPANY OF CANADA

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. Gary Mazin for Alexander Maryasin (The Estate of) Ms. Rita Urbonavicius for ING Insurance Company of Canada

HEARING DATE:

By written submissions received by March 1, 2009

PRELIMINARY ISSUES APPEAL ORDER

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

1. The Appellant is granted leave to expand the March 14, 2008 Notice of Appeal, as requested. The Respondent is at leave to serve and file further written submissions, if it so chooses, by Thursday, May 7, 2009, at 4:45 p.m. In any event, both parties shall serve and file, by Thursday, May 7, 2009, at 4:45 p.m., any additional case law upon which they intend to rely at the May 12, 2009 appeal hearing.

2. The Appellant’s request to file fresh evidence in this appeal proceeding is denied.

3. The Respondent shall confirm forthwith with the Appellant whether any will to which it referred on July 20, 2007 is the same will contained in the Respondent’s July 16, 2007 Arbitration Brief. If there is an additional will of the late Alexander Maryasin in the possession of the Respondent, the Respondent shall produce that will, forthwith.

4. Ms. Urbonovicius is not removed as counsel for the Respondent.

Financial Services Commission of Ontario

Maryasin (The Estate of) and ING

Appeal Order P08-00011

5. Neither Ms. Hector nor Ms. Urbonavicius are required to attend as witnesses at the appeal hearing.

6. Included in the Appeal Record are items 1 to 14 listed on pages 18 to 19 herein.

7. As Mr. Mazin’s affidavits are not being allowed into evidence, there is no need for Mr. Mazin to be removed as counsel of record for that reason.

April 17, 2009

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

Minor errors on pgs. 4, 6, and 19 corrected on May 14, 2009 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

I. NATURE OF THE APPEAL AND ANALYSIS

The late Mr. Alexander Maryasin was involved in a motor vehicle accident on October 29, 2005. By Application for Accident Benefits dated November 17, 2005, Mr. Maryasin applied to the Respondent, ING Insurance Company of Canada, for statutory first-party automobile accident benefits payable pursuant to the Schedule.¹

A dispute arose as to Mr. Maryasin’s entitlement to certain benefits. Mr. Maryasin thus applied for mediation by Application dated January 25, 2006. The Report of Mediator, issued June 20, 2006, noted the issues remaining in dispute as attendant care, medical and housekeeping benefits, as well as interest. Subsequently, an Application for Arbitration dated July 19, 2006 under the name of Alexander Maryasin was filed with the Commission. The Application, signed by Mr. Gary Mazin as representative, set out the issues in dispute those enumerated in the Report of Mediator, as well as legal expenses and a claim for a special award.

Mr. Maryasin, however, had died on April 1, 2006. By Application dated May 6, 2006, Ms. Faina Maryasin, Mr. Maryasin’s daughter, applied to the Respondent for payment of death benefits (noting the deceased’s dependence on her) and funeral expenses. By Explanation of Benefits dated January 24, 2007, the Respondent denied the $35,000 death benefit and $6,000 funeral benefit claims, stating that “[t]he proof of Death Certificate does not indicate the cause of death. The hospital records do not support an mva related cause of death. The benefits are not payable.”

In the interim, an Application for Mediation dated August 23, 2006 was filed with the Commission. The Application, under the name of Ms. Faina Maryasin, was signed by Mr. Mazin as representative. A Report of Mediator, issued January 5, 2007, indicated that the issues remaining in dispute were Ms. Maryasin’s entitlement to a death benefit of $35,000 pursuant to

section 25 of the Schedule, $6,000 for funeral benefits under section 26 of the Schedule and interest on overdue payments.

I am unable to discern that a second Application for Arbitration was filed with the Commission. Rather, a pre-hearing discussion was held on January 26, 2007. In the confirming pre-hearing letter dated January 26, 2007, the pre-hearing arbitrator set out the title of proceedings as “Mr. Alexander Maryasin (The Estate) and ING Insurance Company of Canada.” The pre-hearing letter states that the issues in dispute were identified and agreed as follows:

1. Is Mr. Maryasin (The Estate of) entitled to death benefits pursuant to section 25 of the Schedule?
2. Are funeral benefits payable pursuant to section 26 of the Schedule?
3. Is ING liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Maryasin (The Estate)?
4. Is ING liable to pay Mr. Maryasin (The Estate’s) expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
5. Is Mr. Maryasin (The Estate) liable to pay ING’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
6. Is Mr. Maryasin (The Estate) entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

The pre-hearing arbitrator set hearing dates of August 14, 15 and 16, 2007.

By letter dated July 6, 2007, counsel for Alexander Maryasin (The Estate of) (the “Appellant”), requested an adjournment of the arbitration hearing on the basis that Ms. Faina Maryasin, whom he noted as the Appellant’s representative, was out of town and would not be returning for a few months. This adjournment request came before Arbitrator Wilson (the “Arbitrator”).

The Arbitrator’s letter of July 24, 2007 confirmed that an adjournment hearing and case conference was held on July 20, 2007. The Arbitrator noted that the Respondent did not consent to the adjournment. He also noted that although Mr. Maryasin had died prior to the filing of the Application for Arbitration, “no attempt had been made to appoint anyone as either trustee or administrator of the estate of the deceased.” The Arbitrator further stated that:

As well, the original pre-hearing letter indicates that the primary issues for arbitration are death benefits and funeral expenses, of which only the latter has the potential of directly involving the estate.

The Arbitrator’s letter further stated, in part, that:

1. “While Mr. Mazin initially advised that a grant of administration was imminent, he later conceded that he is unaware of the status (if any) of any application to appoint an estate representative, and is not involved in the appointment process or the administration of the estate.”
2. There had been significant delays by Mr. Mazin regarding production requests. Mr. Mazin advised that Ms. Maryasin had “disappeared,” and that he was unable to (a) complete productions due to her absence and (b) proceed with the arbitration hearing due to a need to have her examined by a medical practitioner.
3. Mr. Mazin had no instructions, either from a valid representative of the estate or from Ms. Maryasin personally, other than his original retainer.

The Arbitrator noted that the section 25 death benefit appeared to be personal to the dependent person. He stated that “[w]ithout the presence of an authorized representative of the estate, to give instructions regarding the amendment of the claim, it is likely that the claim for death benefits would fail.” Citing the prejudice to Ms. Maryasin if she were denied an adjournment, the Arbitrator stated that:

Consequently I ordered that the hearing be adjourned sine die to permit Mr. Mazin to attempt to obtain instructions from Ms. Maryasin. I also ordered that the adjournment would be subject to conditions, including a possible award of expenses, of which I remain seised.

I also ordered that the parties attend for a further pre-hearing before me on November 2, 2007, at 10:00 a.m at the Offices of the Financial Services Commission of Ontario. It is incumbent upon Ms. Maryasin to be present for this resumption.

Mr. Mazin shall have until September 30, 2007 to advise whether he has reached his

client and obtained further instructions, as well as to take the necessary steps to amend the Application for Arbitration to properly reflect the claims and the identity of the claimants in this arbitration, and the authority under which that part of the claim involving the estate of Mr. Alexander Maryasin is proceeding.

Providing that Mr. Mazin has taken the appropriate steps to regularize the Application for Arbitration that is the subject of this arbitration on a timely basis, the resumed pre-hearing will deal with the issue of expenses arising from this adjournment, together with the scheduling of dates for a new substantive hearing.

Otherwise, should Mr. Mazin fail to address the issues referred to above by September 30, 2007, ING shall be entitled to serve and file [a] motion for dismissal of this arbitration, which may be returnable on the date set for the resumption of the pre-hearing.

Given the concerns expressed concerning the manner in which this arbitration has been brought and whether the solicitor had the authority to bring an action in the name of the estate, it is possible that Mr. Mazin’s actions in bringing this arbitration may be brought into question as well. Mr. Mazin is consequently advised that should he be in breach of his warranty of authority, he may be expected to bear part or all of any ensuing expense award relating to this adjournment.

The Insurer should serve appropriate notice on Mr. Mazin at least 30 days prior to the scheduled resumption, including particulars of any conduct relied upon, should it wish to avail itself of the provisions of section 282 (11.2) of the Insurance Act.

[emphasis in the original]

By letter dated October 1, 2007, Mr. Mazin wrote that, not withstanding numerous attempts, his firm had been unable to reach Ms. Maryasin.

In the arbitration file is a separate letter of the same date from Mr. Mazin’s firm to the Case Administrator, stamped received October 2, 2007, advising that Mr. Mazin’s office wished to amend the Application for Arbitration to change the name of the Applicant from Alexander Maryasin to Faina Maryasin. Attached to this letter is “the first page of the Application for Arbitration with the proper corrections.” In the latter, the name “Alexander” is crossed out and replaced by “Faina,” and the form of address “Mr.” is crossed out and replaced by “Ms.” The letter does not refer to any filing fee, nor does it refer to the document as a fresh application.

However, in the Respondent's motion record of November 13, 2007 there is a somewhat different letter of October 1, 2007 from Mr. Mazin’s office, addressed to the Case Administrator and copied to the Respondent. A different attached and complete “correct Application for Arbitration” with the only the name “Faina Maryasin” as applicant is noted as being signed on October 2, 2007 by Mr. Mazin as representative. The letter does not refer to any filing fee, nor does it refer to the document as being a fresh application. I do not see this letter does not appear in the correspondence brad of the arbitration file.

By letter dated October 2, 2007, the Arbitrator acknowledged an amended Application for Arbitration and that Mr. Mazin advised that he could not locate Ms. Maryasin. The Arbitrator confirmed the November 2, 2007 resumption of the pre-hearing discussion.

By letter dated November 6, 2007, the Arbitrator confirmed that the November 2, 2007 pre-

hearing discussion had been held. He noted that the Respondent would not consent at that time to any amendment of the Application for Arbitration and had moved that the application from the Estate of Alexander Maryasin be dismissed as frivolous, vexatious and an abuse of process. The Arbitrator held that:

Given the lack of formal notice for this motion, and the serious consequences to the Applicant, I put over the hearing of the motion until Friday, November 23, 2007 at 10:00 a.m. at the offices of the Financial Services Commission. Since the authority of Mr. Mazin to continue this arbitration has been put into question by the Insurer, it shall be incumbent upon Mr. Mazin to produce his client for the upcoming hearing, and consequentially, Ms. Faina Maryasin is ordered to attend. Mr. Mazin should also advise in advance if a translator is required.

I should remind Mr. Mazin that the Insurer’s claim for dismissal may bring his own actions into question, and indeed the Insurer has advised that it will be claiming that any order of expenses made in its favour be payable by counsel personally. If Mr. Mazin intends to provide any evidence in this matter, either by way of affidavit or testimony, he should make the necessary arrangements to have alternative counsel appear. [emphasis in the original]

By letter dated November 5, 2007, Mr. Mazin wrote the Respondent and the Commission that his office was unable to locate Ms. Maryasin and wished “to abandon this claim without

prejudice to Ms. Maryasin’s rights.” By letter dated November 7, 2007, Mr. Mazin wrote the Respondent, copied to the Commission, seeking the Respondent’s consent “to withdraw Ms. Maryasin’s claim and be removed as solicitors of record.” However, the next day Mr. Mazin wrote the Respondent and the Commission that he was retracting his request to withdraw “our client’s claim and be removed as solicitors of record as we have just been in contact with

Ms. Maryasin and she wishes to proceed with the claim.”

By letters of November 9 and 15, 2007, the Arbitrator extended the time lines for submissions, as requested by both parties.

By motion dated November 13, 2007, returnable November 23, 2007, the Respondent sought an order dismissing the arbitration proceeding pursuant to Rule 68.1 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003). In addition, the Respondent sought its legal expenses against Ms. Faina Maryasin and Mr. Gary Mazin.

The Appellant filed a Response to the motion, dated November 19, 2006, that stated, in part:

Counsel for the Insurer, at Tab 11, has provided a copy of a letter dated October 1, 2007 and a copy of an amended Application for Arbitration. Therefore, it is our position that the Application for Arbitration is in the correct name of Ms. Maryasin and that the Insurer will not be prejudiced in any manner if the application is allowed to continue.

In his February 22, 2008 decision, the Arbitrator dismissed the Appellant’s claim “without prejudice to the right of any legitimate claimant to advance an accident benefit claim within the time-limits specified by the legislation.” The Arbitrator further determined that Mr. Mazin was to pay the Respondent its assessed costs and disbursements in the amount of $4,256.37.

The Commission received the Notice of Appeal herein on March 14, 2008. Upon completion of the exchange of pleadings and written submissions, an oral appeal hearing was set for December 2, 2008.

Several preliminary issues arose at the beginning of the appeal hearing. I concluded that it was best to adjourn the hearing to address all of the preliminary issue so as to avoid any further adjournment. The parties having no objection to determining these preliminary issues by written submissions, I held that they would be so determined, in accordance with Rule 67.6 of the Code.

Considerable time was spent at the initial appeal hearing in identifying all of the preliminary issues in dispute. Seven preliminary issues were confirmed in my letter of December 3, 2008, in addition to two oral rulings given on December 2, 2008. My letter advised that if either party had concerns with my recitation of the preliminary issues, they should advise in writing, copied to the other side, forthwith. No correspondence in this regard was received.

My December 2, 2008 rulings were confirmed in my December 3, 2008 letter, as follows.

1. A representative in this appeal cannot both give evidence and continue as counsel of record. As noted by counsel, Rule 4 of the Rules of Professional Conduct of the Law Society of Upper Canada provides as follows:

Submission of Testimony

4.02 (2) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.

Commentary

A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

I was not persuaded that there was any substantive difference between a lawyer giving evidence or giving “observations.” In both, I find, the intent is for a lawyer to, “in effect appear as an unsworn witness or put the lawyer’s own credibility in issue.”

2. This proceeding is not rejected as an appeal from a preliminary or interim order. Rule 50.2 of the Code provides that unless the Director decides otherwise, a party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided. The Respondent acknowledged that it was raising this concern for the first time at this hearing. I held that the Arbitration order was final, the Arbitrator having dismissed this claim of this Appellant. If I was in error in this regard, I chose to exercise my discretion as the Director’s Delegate to allow this appeal to proceed. If the appeal were not allowed to proceed at this time, it was unclear at what subsequent point in time it could be allowed to proceed.

I will now address the further seven preliminary issues in dispute, in turn.

1. Should the Appellant be given leave to expand the March 14, 2008 Notice of Appeal?

The Notice of Appeal herein, under the section entitled “Actions Sought from the Appeal,” states “Revocation of the cost assessment against Mr. Gary Mazin.” Under “Reasons for the Appeal,” the Appellant states “Reasonable Apprehension of Bias. Error of Law.”

The Appellant requests leave to expand the relief sought in this appeal to include the following:

(1) Amending the applicant in the Application for Arbitration from Alexander Maryasin (Estate of) to Faina Maryasin;

(2) Reversing the cost award against Mr. Gary Mazin in favour of an award in favour of Gary Mazin and Faina Maryasin for both arbitration and appeals; and,

(3) An order that the Arbitrator not preside over further events in this proceeding.

The Appellant relies on Delegate McMahon’s decision in Welsh and Economical Mutual Insurance Company, (FSCO P02-00024, April 23, 2003) that “if the Director has a broad discretion to grant an extension of the time to file an initial Notice of Appeal, it follows that he has at least as broad a discretion to allow a party to amend an existing appeal, even if it involves a fresh challenge.” Delegate McMahon continued:

Some guidance can be gained by referring to the way our civil courts have addressed the issue. Rule 61.04 of the Rules of Civil Procedure stipulates that an appeal must be commenced within 30 days of the date of the order. However, Rule 61.08 provides that a notice of appeal may be amended "without leave" before the appeal is perfected, and thereafter with leave. Given the time to perfect an appeal, a party may amend its notice of appeal "without leave" even after the expiry of the 30-day time limit for initiating an appeal, and in some cases months after the release of the order. On the question of "leave," the Court of Appeal allowed an amendment in DaCosta v. DaCosta (1992), 1992 CanLII 7749 (ON CA), 89 D.L.R.(4th) 268, on the grounds that the responding party was not prejudiced. The Court did not refer to any other factors.

I take from these Rules and the DaCosta decision, that the expiry of the time for initiating an appeal is not determinative, and that the major factor to be considered is the existence or absence of prejudice. I would add that by prejudice I mean prejudice that cannot be addressed by expenses or other relief.

Beyond the question of potential prejudice, the substance of the proposed amendment should be examined to ensure that it raises a question of law. The length of the delay may also be a factor, together with any excuse for the delay, although I would not weigh these as heavily as the existence or absence of prejudice. Frequently these factors will overlap. For example, the longer the delay, the more likely the prejudice. In my view, all the factors should be weighed together. Finally, the overriding principle set out in Rule 1.1 of the Code should be kept in mind — "These Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute."

The Appellant also referred to Driver and Traders General Insurance Company, (FSCO P03-00006, November 18, 2003), wherein Delegate Makepeace agreed with the approach taken in Welsh.

The Appellant submits that its Notice of Appeal was filed in time and there is no prejudice to the Respondent. The Appellant further argues that the delay in this case was very short, the Respondent being given notice of the additional issues by the Appellant’s letter of March 28, 2008, five days after the deadline for the Notice of Appeal, and in the April 17, 2008 written submissions, 25 days after the deadline for filing. The Appellant submits that the Respondent was 33 days late in providing its written submissions.

The Appellant further submits that the reason for the delay in advancing the further grounds for appeal was that it was “only upon reflection that the importance of having allowed the Application for Arbitration to be amended to Faina Maryasin as opposed to resubmitting a new Application, since denying an amendment further causes Faina Maryasin to be exposed to more processes” that would aggravate her grief in reliving her father’s death, her only close relative, through litigation.

The Respondent submits that the additional issues should not be allowed as they were not

advanced within the prescribed time. The Respondent asks that the appeal be dismissed as it has been brought in the name of a non-existent entity and there has been no appeal of the Arbitrator’s order that the Application for Arbitration at first instance was void. Further, it is argued that there has been no information as to who is providing instructions and who has the authority to provide instructions on the part of the deceased.

The Appellant replies that Mr. Mazin has authority to represent Ms. Maryasin, in her personal capacity, in claiming death and funeral expenses. In any event, the Appellant submits that the Respondent has in its possession a will from the deceased in which Ms. Maryasin is named as Estate Trustee.

I grant the Appellant leave to expand the March 14, 2008 Notice of Appeal, as requested.

I agree with the analysis in Welsh and Driver. If an appellate officer has broad discretion under subsection 283(3) of the Insurance Act to extend the time for requesting an appeal, there is even a stronger basis for allowing a Notice of Appeal to be amended after the thirty day time period provided by subsection 283(2). In this case, the Respondent does not plead any prejudice. Further, whatever the concerns regarding the strength of the explanation provided for the delay, there is no dispute that the additional grounds of appeal were brought early to the Respondent’s attention.

Further, the expanded issues of legal expenses and the further involvement of the Arbitrator in this proceeding flow from the initial Notice of Appeal. Regarding the additional issue as to whether the Application for Arbitration should have been amended, this is a question of law that the Arbitrator analyzed at pages 15 to 18 of his decision.

The Appellant has not requested further written submissions from the Respondent. The Respondent has not requested an opportunity to provide further written submissions in the event that I allowed the Appellant leave to expand its prayer for relief. The Respondent is at leave to serve and file further written submissions, if it so chooses, by Thursday, May 7, 2009, at 4:45 p.m. In any event, both parties shall serve and file, by Thursday, May 7, 2009, at 4:45 p.m., any

additional case law upon which they intend to rely at the May 12, 2009 appeal hearing.

2. Should the Appellant be allowed to file fresh evidence in this appeal proceeding?

The Appellant seeks to file the following fresh evidence in this appeal proceeding:

(1) the affidavit of Vikram Kapur sworn April 16, 2008;

(2) the affidavit of Shanna Mittleman sworn April 17, 2008;

(3) the affidavit of Faina Maryasin sworn April 16, 2008;

(4) the affidavits of Gary Mazin, sworn January 5 and 6, 2009; and,

(5) the Will of Alexander Maryasin shown at the July 20, 2007 pre-hearing discussion and a letter with fax confirmation from Mr. Mazin, dated August 7, 2007.

The Appellant refers to the decision in Budd and Personal Insurance Company of Canada,

(FSCO P99-00032, January 8, 2000), wherein Delegate McMahon adopted the following criteria regarding whether to allow fresh evidence on appeal:

• The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

• The evidence must be credible, in the sense that it is reasonably capable of belief;

• The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and

• The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The Appellant submits that four of the affidavits pertain to what transpired during the pre-hearing discussions and hearing held in these matters. As there was no court reporter present, no written transcribed record of the proceedings exists.

The Appellant submits that the Affidavits are credible because they are sworn and it is an offence to have false statements in affidavits. Further, it is submitted that the affidavits provide relevant information, including:

(1) that a will was shown during the pre-hearing discussion;

(2) that Ms. Maryasin did not comply with all requests due to her depression resulting from her father’s death, the deceased being her only close relative;

(3) particular actions and impressions of the Arbitrator;

(4) that Ms. Faina Maryasin confirmed through her representative, that she had provided Mr. Mazin with authority to change the Arbitration from the Estate of Alexander Maryasin to herself personally; and,

(5) that the Arbitrator was told that Mr. Mazin had authority to represent Ms. Maryasin.

The Appellant queries whether the will is indeed fresh evidence as a will was included in the Respondent’s July 16, 2007 Arbitration Brief. The Appellant requests confirmation from the Respondent that this is the same will the Respondent is said to have noted at the July 20, 2007 discussion, or if not, that the further will be produced. The Appellant submits that this is relevant to what it submits is the Arbitrator’s error in finding that the deceased did not leave a will.

The Appellant submits that its August 7, 2007 letter requesting that the Respondent consent to amending the name of the applicant on the Application for Arbitration contradicts the Respondent’s submission in its November 13, 2007 motion material that Mr. Mazin had not taken any steps to amend the Application. The Appellant submits that the reason the August 7, 2007 letter was not put before the Arbitrator may have been that the letter was written by one lawyer while a second lawyer dealt with the motion to dismiss. The Appellant submits that this evidence is credible and relevant, specifically to the Arbitrator’s cost award.

The Respondent submits that it is not the function of an appellate officer to retry the issues in dispute and that the Appellant is attempting to present evidence not provided on the motion to dismiss. The Respondent argues that the hand-printed will in question has not been authenticated; in any event, it has no bearing to the proceedings, and should not be allowed as fresh evidence. Further the letter of August 7, 2007 was in the Appellant’s possession and could have or should have been submitted at the arbitration hearing.

The Appellant replies that while the Arbitrator erred in finding that there was no will, he should not have concerned himself with whether there was a will, but rather should have allowed the name of the applicant to be changed from the Estate of Alexander Maryasin to Faina Maryasin, the latter being “the rightful recipient of the funeral and death benefits” and “the person who paid the funeral expenses.”

I am not persuaded that the requested fresh evidence should be allowed in this appeal proceeding.

Regarding the letter of August 7, 2007 signed by Mr. Gary Mazin, which was not copied to the Commission, the covering letter of the Appellant’s November 19, 2007 Response to the motion to dismiss is also signed by Mr. Mazin, as is the three-page document itself. I am not persuaded that the document could not, by due diligence, have been adduced at the dismissal hearing. In any event, the Arbitrator’s letter of November 2, 2007 noted that the Respondent would not consent to any amendment of the Application for Arbitration to the name of Faina Maryasin. I am not allowing the August 7, 2007 letter to be introduced as fresh evidence.

Regarding the affidavits submitted:

(a) They pertain, in significant part, to the existence of a will. As noted below, I am including the will found in the Respondent’s Arbitration Brief in the appeal record. More fundamental, however, is the relevance of the will.

The Arbitrator found that the Estate, no matter how it brought forward a claim, had no right to the benefits claimed, death benefits not being payable to the estate of a deceased and, as noted on page three of his decision, “[a]t the hearing of the dismissal motion, Ms. Faina Maryasin confirmed that the funeral expenses were in fact paid by her personally, not the estate of Mr. Maryasin.” The Appellant does not appeal the Arbitrator’s findings in this regard. The Appellant does not seek an order that it be allowed to continue the arbitration proceeding. Rather, the Appellant conceded in its written submissions that Faina Maryasin was “the rightful recipient of the funeral and death benefits” and “the person who paid the funeral expenses.”

(b) They contain information that, with due diligence, could have been adduced at the motion to dismiss, such as the psychological condition of Ms. Maryasin;

(c) They present a limited and, sometimes subjective, view of the proceedings.

(d) Both parties were at liberty, certainly for the motion to dismiss, to retain a court reporter and request that same be affirmed to report the evidence and proceedings faithfully, in accordance with subsection 22(3) of the Insurance Act.

(e) To allow these affidavits into evidence would, in fairness, require allowing the Respondent an opportunity to submit its own affidavits. Given the Appellant’s requests below, this would mean allowing the adverse party an opportunity to cross-examine the deponents. While this would certainly lead to a significantly greater expenditure of time and legal costs, I am not persuaded, to use the Respondent’s words, that these “dueling affidavits” would meaningfully assist me in determining the issues in appeal.

(f) To allow such affidavits as fresh evidence sets an unwelcome precedent, including using affidavits to remedy to a party’s failure to properly adduce oral or documentary evidence at an arbitration proceeding.

Regarding the will itself, I am not persuaded that it is fresh evidence, as discussed below.

3. Whether the will or a copy of the will shown during the pre-hearing of July 20, 2007 should be produced?

The Appellant requests that the Respondent either identify the will to which it allegedly referred at the July 20, 2007 pre-hearing discussion as the same as the will contained in the Respondent’s Arbitration Brief, or if there is a different will, to produce same.

The Appellant submits that it sent five letters between June and November 2008 to the Respondent requesting the will that was in the latter’s possession and that the Respondent has had ample time to respond. The Appellant submits that the Arbitrator’s finding that there was no

will formed the basis of his decision.

The Respondent submits that at no time during the arbitration proceeding did the Appellant request the will in question and, in any event, the will should be in the Appellant’s possession.

It will assist in clarifying matters for the Respondent to confirm, forthwith, with the Appellant whether any will to which it referred on July 20, 2007 is the same will included in the Respondent’s July 16, 2007 Arbitration Brief. If there is an additional will of the late Alexander Maryasin in the Respondent’s possession, the Respondent shall produce that will forthwith.

4. Whether Ms. Urbonovicius should be removed as counsel for the Respondent in order to require her to give evidence at the appeal hearing?

The Appellant asks that Ms. Urbonovicius be removed as counsel of record for the Respondent, in accordance with Rule 4.02(1) of the Rules of Professional Conduct noted above, as the Appellant wishes to call her as an adverse witness at the appeal hearing. An area of intended examination will concern her allegedly showing the Arbitrator a will on July 20, 2007.

The Respondent submits, in part, that there is no allowance in the Code for a representative who attends a pre-hearing discussion to then be asked to give evidence against their principal.

Rule 1.1 of the Code provides that these Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute. Rule 56.4 provides that the appellate officer may decide the appeal (a) on the record (b) by way of an oral hearing or an electronic hearing, or (c) in any manner considered appropriate.

It may be that there are extraordinary circumstances where oral evidence at an appeal hearing may be both reasonable and necessary. This is not such a case.

I have noted above my question as to the extent of the relevance of the will. In any event, the identified will is being included in the appeal record and any additional will shall be produced.

I see no need to require Ms. Urbonovicius to be removed as counsel for the Respondent.

5. Whether Ms. Roxanne Hector of ING and Ms. Urbonovicius both be required to attend at the resumed appeal hearing as witnesses and that they be found to be adverse in interest to the Appellant?

The Appellant wishes to have Ms. Hector, the adjusting representative of the Respondent, and

Ms. Urbonovicius compelled to attend the Appeal Hearing as adverse witnesses regarding the allegations that there was a reasonable apprehension of bias and an error of law.

The Appellant specifically wishes to examine these witnesses regarding (1) the will alleged to

have been shown to the Arbitrator on July 20, 2007, and (2) that Mr. Kapur of Mr. Mazin’s office stated on November 23, 2007 that Mr. Mazin had authority to represent Ms. Maryasin and to change the title of proceeding of the arbitration from the Estate of Alexander Maryasin to Ms. Faina Maryasin.

The will is being included in the appeal record. As to the issue of authority, I again note that the Arbitrator, in his letter of November 6, 2007, stated regarding the hearing of evidence at the motion to dismiss, that:

If Mr. Mazin intends to provide any evidence in this matter, either by way of affidavit or testimony, he should make the necessary arrangements to have alternative counsel appear.

Mr. Kapur attended the dismissal motion as the Appellant’s representative. He did not attend as a witness. As noted, Rule 4 of the Rules of Professional Conduct of the Law Society of Upper Canada provides that a “lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue.” I am not persuaded that either Ms. Hector or Ms. Urbonavicius should be required to attend as witnesses at the appeal hearing.

6. What should be included in the Appeal Record, in accordance with Rule 56.4 of the Code?

The Appellant lists 35 items it submits should be part of the Appeal Record. These can be

identified as follows:

1. Items 1-3, being the Arbitration Briefs of the parties.
2. Items 4-9, being correspondence in the arbitration proceeding.
3. Items 10-11, being the motions records of the parties respecting the Respondent’s motion to dismiss.
4. Items 12 to 29, being correspondence in appeal.
5. Items 30-33 and 35, being the affidavits the Appellant now wishes to introduce as fresh evidence; and,
6. Item 34, being the will shown at the July 20, 2007 pre-hearing discussion.

The Appellant submits that subsection 283(4) of the Insurance Act provides an appellate officer

with great latitude as to what is to be included in the appeal record.

The Respondent submits that the Appellant provides no specificity regarding why each of the 35 items should be included in the appeal record. The Respondent argues that no arbitration hearing occurred in this matter; rather, there was a motion in accordance with Rule 68 of the Code. The Respondent submits that briefs should not be included in the appeal record as they “were never referred to in any proceeding to determine an outcome, no arbitration hearing [having] occurred given the motion to dismiss the matter without a hearing.”

The Respondent submits that the Appeal Record should consist of the following:

1. The Respondent’s motion book, served on or about November 13, 2007 and the Appellant’s Response, served on or about November 19, 2007.
2. The Notice of Appeal and the Response to Appeal.
3. The Arbitrator’s Case Conference Report dated November 6, 2007.
4. The written submissions of the parties, with the exception of the requested fresh evidence.

Rule 56.4 of the Code provides that the appeal record includes the Notice of Appeal, the Response to Appeal, the written submissions of the parties and the record of the arbitration hearing, including all arbitration exhibits and, if it is filed, the transcript of the arbitration hearing.

There is no dispute, and in accordance with Rule 56.4 of the Code, I find that the appeal record firstly includes:

1. The Notice of Appeal, dated March 14, 2008;
2. The Response to Appeal, dated April 1, 2008.
3. The Appellant’s written submissions dated April 17, 2008, excluding the requested fresh evidence.
4. The Respondent’s written submissions, dated June 9, 2008.
5. The Appellant’s January 6, 2009 submissions regarding the preliminary issues.
6. The Respondent’s February 17, 2009 submissions regarding the preliminary issues.
7. The Appellant’s March 1, 2009 reply submissions regarding the preliminary issues.

Rule 3.1 of the Code provides that a “hearing” means “the opportunity to state one’s case before an adjudicator in the context of an oral, written or electronic hearing.” I find that the motion to dismiss was a hearing. I do not see that any exhibits were marked at the dismissal hearing. Section 20 of the Statutory Powers Procedure Act, R.S.O. c. S.22, provides that a tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,

(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and

(f) the decision of the tribunal and the reasons therefor, where reasons have been given.

I include in the appeal record the following documents filed with the Commission, which I

am persuaded are relevant to this appeal, were before the Arbitrator and were, in part, directly or indirectly referred to by the Arbitrator:

1. The Respondent’s motion record, dated November 13, 2007.
2. The Appellant’s Response to the motion to dismiss, dated November 19, 2007.
3. The Respondent’s Arbitration Brief, dated July 16, 2007.
4. The pre-hearing letter of January 26, 2007.
5. The letters from the office of the Appellant’s counsel dated July 6, October 1 (as noted above), November 5, 7, and 8, 2007.
6. The Arbitrator’s letters of July 24, October 2, November 6, 9 and 15, 2007.
7. The Arbitrator’s decision dated February 22, 2008.

I am not including the Appellant’s Arbitration Brief, as it pertains to Mr. Alexander Maryasin’s personal claims for medical, housekeeping and attendant care benefits, which are not relevant to this appeal. The Respondent’s Medical Brief is likewise excluded.

7. Whether Mr. Mazin should be removed as counsel of record for the Appellant, to allow him to give evidence in this proceeding?

The Appellant submits that Mr. Mazin should be removed as counsel of record, in accordance with Rule 4.02(1) of the Rules of Professional Conduct, as he seeks to have his affidavits of January 5 and 6, 2009 be admitted as evidence, and an advocate cannot, at the same time, be a witness.

As I am not allowing Mr. Mazin’s affidavits into evidence, there is no need for Mr. Mazin to be removed as counsel of record for that reason.

II. EXPENSES

The legal expenses of this preliminary issues hearing are deferred to the conclusion of this appeal proceeding, subject to any further or other order of the Director or a Delegate.

April 17, 2009

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.