Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2010 ONFSCDRS 1
FSCO A09-000397
BETWEEN:
ZEESHAN JAFRI
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Fred Sampliner
Heard: Written submissions received November 13 and 27, 2009
Appearances: Alon Rooz for Mr. Jafri
Alexander Lempp for Security National Insurance Co./Monnex Insurance Mgmt. Inc.
Issues:
Mr. Zeeshan Jafri’s claims for accident benefits under the Schedule1 with Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security”) arise out of a motor vehicle accident on December 18, 2007. His claims are scheduled for an arbitration hearing at the Financial Services Commission of Ontario (“FSCO”) on August 9, 10 and 11, 2010 under authority of the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Security’s Response to Mr. Jafri’s Application for Arbitration requested dismissal of this proceeding as frivolous, vexatious or bad faith, which falls under Rule 68 of the Dispute Resolution Practice Code (“Code”). During the October 14, 2009 prehearing conference before me, the parties agreed to a timetable for written submissions respecting Security’s motion.
Shortly after the prehearing and before written submissions were due, Mr. Jafri requested me to step down from deciding Security’s motion on the basis that I did not have jurisdiction and I had demonstrated bias against him. Both parties made written submissions on bias and jurisdiction.
The preliminary issues are:
Do I have authority to decide Security’s motion to dismiss this arbitration?
Does Mr. Jafri have a reasonable apprehension that I am biased against him respecting Security’s motion?
Result:
I have jurisdiction under the Insurance Act to decide Security’s motion to dismiss this arbitration.
Mr. Jafri does not have a resonable apprehension that I am biased against him in deciding Security’s motion.
EVIDENCE AND ANALYSIS:
Jurisdiction:
Security’s motion claims that Mr. Jafri’s accident benefits claims against this Insurer in this arbitration at FSCO should be joined with his accident benefits against this Insurer in a lawsuit in the Court system. Security wants this arbitration dismissed as a frivolous, vexatious or bad faith matter under Rule 68 of the Code.
Mr. Jafri contends I do not have jurisdiction as the prehearing arbitrator to decide the dismissal issue. The analysis begins with subsection 282(3) of the Insurance Act (“Act”), which confers on an arbitrator broad authority to determine all issues in dispute, whether raised by the insured person or the insurer. The subsection does not differentiate between the authority of an arbitrator presiding at the prehearing or at the hearing.
Sub-rule 33(d) of the Code clearly directs the arbitrator presiding at the prehearing discussion to expeditiously deal with preliminary issues. There is no language in either the legislation or Code that specifically prohibits or limits the prehearing arbitrator’s authority respecting preliminary issues.
Mr. Jafri cites no contradictory statutory or case authority to the general statutory authority and specific rule for prehearing arbitrators to efficiently case manage and decide preliminary issues. On the law, Mr. Jafri’s argument respecting jurisdiction is without merit.
There are practical reasons to reject Mr. Jafri’s jurisdictional argument as well. Two categories of preliminary issues come before an arbitrator presiding at a prehearing. Decisions about procedural matters such as production orders or insurer examinations are quite routine, and not finally dispositive of a specific benefit or of the entire arbitration proceeding. Usually the prehearing arbitrator also decides factual and legal questions that can determine whether the entire arbitration process continues, such as time limitations and jurisdictional questions.
Accepting Mr. Jafri’s argument that the prehearing arbitrator is limited to deciding process matters only would undermine the design of the arbitration system to provide consumers with an efficient expedient process. Thus, Mr. Jafri’s position contradicts the practical aim of the arbitration system as well as the broad jurisdiction granted under the Act. I am compelled by law and practicality to reject Mr. Jafri’s argument that I do not have jurisdiction to decide the motion in issue.
Bias:
Mr. Jafri must have a factual basis to support his contention that he has a reasonable apprehension I am biased. The question is whether an informed person would realistically and practically conclude that I consciously or unconsciously would not fairly decide the issue.2
Mr. Jafri submits I should not preside on a motion that could determine the arbitration outcome where there were settlement discussions at the prehearing that could prejudice my decision.3
Mr. Jafri alleges in his Affidavit there were settlement discussions in my presence, but there is no official record to support his statement.
My recall, which is accorded deference without an official record4, is that the parties specifically rejected entertaining any settlement discussions because they wanted Security’s motion disposed of beforehand. Thus, I find there is no factual basis to support Mr. Jafri’s argument I heard settlement discussions that could potentially taint a decision.
At the outset of the prehearing, I outlined the issues in Mr. Jafri’s Application for Arbitration and Security’s Response, which contained its request for dismissal of the arbitration under Code
Rule 68. Mr. Jafri submits that my raising of Security’s issue implies bias. However, it is quite clear that arbitrators are obligated to clarify the parties’ issues. Therefore my mention of Security’s Rule 68 issue does not, in my view, show any bias.
In Mr. Jafri’s Affidavit, he maintains that my statement at the prehearing that Security’s motion would be decided in the same “manner” as another case indicates bias. The word “manner” is defined in the Concise Oxford Dictionary as, “a way a thing is done or happens.”5 My use of the word conformed to the dictionary definition in my suggestion that the parties argue the matter on written submissions in similar manner to the dismissal motion these same law firms argued in another recent prehearing before me. I do not accept that my use of the word “manner” to propose the process for deciding the motion indicates the result favours Security.
Mr. Jafri requested that I provide him with the result of the Tharmabaskaran6 decision concerning a dismissal motion where these same law firms had made written submissions to me after a prehearing. I had not released this decision at the time of the prehearing, but Mr. Jafri maintains that my refusal to give him the result indicates bias.
FSCO arbitration decisions do not become final orders until the arbitrator confirms his or her decision in writing pursuant to subsection 282(13) of the Act. I would be outside my authority by privately releasing a decision to Mr. Jafri prior to its publication. I cannot accept the notion that my refusal to provide Mr. Jafri with an unreleased decision somehow gives the appearance I am biased against him.
Security stated at the prehearing that the Tharmabaskaran facts are similar to Mr. Jafri’s arbitration. I explained to the parties they should set out the factual differences and similarities between Mr. Jafri’s situation and other precedents in their written submissions. There is no question that case precedent forms a cornerstone of the law and I see no factual basis for
Mr. Jafri’s contention that my request for precedent indicates bias.
Lastly, I have taken it on myself to review my October 14, 2009 prehearing letter to determine whether Mr. Jafri could entertain a reasonable apprehension I am biased from the documentary record of that proceeding. The only contentious issues that I ruled on were the document exchanges. I agreed with Mr. Jafri in deciding against Security on its request for Mr. Jafri’s complete employment file, limiting Security to the relevant medical, attendance records and job description information.
A reasonable person reading the prehearing letter would conclude that I took an even-handed approach to the contentious portion of the prehearing. Mr. Jafri could not entertain bias from the result of my decisions at the prehearing.
I find there is no factual basis to support Mr. Jafri’s claim that I showed prejudice towards him at the prehearing, and that he is without a reasonable apprehension of bias.
EXPENSES:
Security’s request for its expenses of this preliminary motion is deferred.
January 5, 2010
Fred Sampliner
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2010 ONFSCDRS 1
FSCO A09-000397
BETWEEN:
ZEESHAN JAFRI
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Jafri’s motion to disqualify me from deciding Security’s motion is dismissed.
Security’s motion for its expenses in this matter is deferred.
January 5, 2010
Fred Sampliner
Arbitrator
Date
(FSCO A08-002341, October 16, 2009)
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369
- Rule 33 of the Code
- S.S. and Allstate Insurance Company of Canada (FSCO A07-001223, September 26, 2008)
- Eighth Edition 1990
- Tharmabaskaran and Security National Insurance Co./Monnex Insurance Mgmt. Inc.