Jaswant Kaur v. Personal Insurance Company of Canada, 2010 ONFSCDRS 153

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 153

FSCO A09-002515

BETWEEN:

JASWANT KAUR

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Denise Ashby

Heard: November 15, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Iqbal S. Bedi for Mrs. Kaur

Ryan M. Naimark for Personal Insurance Company of Canada

Issues:

The Applicant, Jaswant Kaur, was involved in a motor vehicle accident on April 21, 2007. She applied for a caregiver benefit from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal refused payment of the benefit. The parties were unable to resolve their disputes through mediation, and Mrs. Kaur applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

1. Is Mrs. Kaur entitled to be represented at the arbitration hearing by her son-in-law, Iqbal S. Bedi?

2. Is Mrs. Kaur entitled to participate in the arbitration hearing by teleconference from her home in India?

3. Is Mr. Bedi or Mrs. Kaur liable to pay Personal’s expenses in respect of the proceedings on November 15, 2010?

Result:

1. Mrs. Kaur may be represented at the hearing by Mr. Bedi provided he serves and files a Declaration Under Oath and Mrs. Kaur serves and files a written statement on or before February 14, 2011.

2. The issue of the format of the hearing is deferred to a date to be set on or before February 28, 2011.

3. Each party will bear its own expenses of the day.

REASONS:

Representation:

At the outset of the proceeding, I confirmed that Mr. Bedi is neither a lawyer nor a paralegal licensed by the Law Society of Upper Canada to provide legal services in Ontario. As well, I confirmed that Mrs. Kaur was in India and would not be attending the hearing. A hearing arbitrator has an obligation to preserve the integrity of the hearing process. As it was not clear to me that Mr. Bedi was someone authorized to represent Mrs. Kaur, I asked for submissions in respect of Mr. Bedi’s standing to represent Mrs. Kaur at the hearing.

Mr. Bedi submits that as Mrs. Kaur’s son-in-law he is entitled to represent her at hearing. Further, he submitted the Application for Arbitration on Mrs. Kaur’s instructions and has represented her since that time. Mr. Bedi’s representation of Mrs. Kaur included making written submissions in respect of Mrs. Kaur’s motion to participate by teleconference. As well, neither Mrs. Kaur nor he was given notice that the Commission might not permit him to represent her in this hearing.

Personal took no position with respect to this issue.

Although the Application for Arbitration has a signature purporting to be that of Mrs. Kaur there is no letter or other written authorization appointing Mr. Bedi as Mrs. Kaur’s representative on the Commission’s file.

On May 1, 2007, the Law Society Act amendments came into force expanding the Law Society’s authority to license persons providing legal services in the Province of Ontario. It empowered the Law Society of Upper Canada to make Rules and By-laws in respect of their governance.

By-law 4 deals with the licensing of individuals providing legal services. Part V of By-law 4 permits the provision of legal services by persons exempted from the licensing provisions in various circumstances including family members. By-law 30(5.1) provides:

An individual,

i. whose profession or occupation is not and does not include the provision of legal services, or the practice of law,

ii. who provides the legal services only for and on behalf of a related person, within the meaning of the Income Tax Act (Canada), and

iii. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

Subsection 251(2) of the Income Tax Act (Canada) provides:

For the purposes of this Act, “related persons,” or persons related to each other, are:

(a) individuals connected by blood relationship, marriage or common-law partnership or adoption;

Subsection 251(6) defines blood relationship as follows:

For the purposes of this Act, persons are connected by:

(a) blood relationship if one is the child or other descendant of the other or one is the brother or sister of the other;

(b) marriage if one is married to the other or to a person who is so connected by blood relationship to the other.

On the basis of the foregoing, I find that Mr. Bedi is related to Mrs. Kaur by virtue of his being married to her daughter. However, Mr. Bedi has not provided any evidence that he has been appointed by Mrs. Kaur to represent her and he does not expect and will not receive either direct or indirect compensation, gain or reward from this proceeding.

The Application for Arbitration indicates that he is the policy holder under which Mrs. Kaur claims a benefit. As well, Mr. Bedi advised me that Mrs. Kaur was the primary caregiver for his two children. Both these factors suggest that that he may receive either directly or indirectly some form of compensation, gain or reward as a consequence of this proceeding.

The Application also gives Mr. Bedi’s address as Mrs. Kaur’s address for the purposes of this proceeding. However, Mrs. Kaur is residing in India. As a consequence, the Commission has no means of contacting Mrs. Kaur independent of Mr. Bedi. On two occasions, Mr. Bedi represented his mother-in-law as being elderly and infirm. Personal referred to the Application for Arbitration in which Mrs. Kaur gives her date of birth as January 6, 1952. It submitted that a 58 year old woman is not considered elderly. I agree. Therefore, I have concerns about the candour of Mr. Bedi’s submissions.

Rule 65.7 of the Dispute Resolution Practice Code provides: “An adjudicator may make such orders or give such directions as he or she considers proper to prevent an abuse of process.” In order to have an evidentiary basis that Mr. Bedi is authorized by Mrs. Kaur to represent her and does not expect to receive and will not receive any compensation in respect of this arbitration proceeding I am requiring Mrs. Kaur to provide a written statement and Mr. Bedi to provide a Declaration Under Oath the particulars of which are set out below.

Mr. Bedi shall, on or before February 14, 2011, serve on Personal and file with the Commission a Declaration Under Oath providing the following information:

1. he is undertaking the representation of his mother-in-law, Jaswant Kaur, without expecting any fee or compensation for his services.

2. If it is determined that Mrs. Kaur is entitled to payments from Personal the payments will be paid to Mrs. Kaur and will not benefit Mr. Bedi, Mr. Bedi’s wife or his children or be held for the benefit of his children.

3. he has provided a copy of his Declaration to Mrs. Kaur translated from English to Punjabi and a copy of the translation is appended to his Declaration.

Mrs. Kaur shall, on or before February 14, 2011, provide Personal and the Commission with a written statement in English or in the alternative translated from Punjabi to English, providing the following information:

1. confirmation that she received Mr. Bedi’s Declaration;

2. she appoints Mr. Bedi to act on her behalf;

3. Mr. Bedi, his wife and his children will not receive direct or indirect compensation, gain or reward from this proceeding;

4. her home address and a telephone number at which she can be reached;

5. the address, account number and other particulars of a financial institution in India sufficient to permit Personal to deposit any payments it is ordered to make to Mrs. Kaur; and

6. her written instructions to Personal to deposit any payments it is ordered to make to her to the account.

Mrs. Kaur’s Participation by Teleconference:

On April 16, 2010, the Pre-hearing Arbitrator issued a decision pursuant to Rule 37.3 of the Code in which he found that Mrs. Kaur’s attendance by telephone would not significantly prejudice Personal. The Arbitrator found that the exercise of arbitral discretion in determining the manner in which a hearing is held is guided by Rule 1.1 which provides: “Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.” He declined to order an electronic hearing on the basis that he had no evidence before him regarding the cost of Mrs. Kaur’s attendance and whether it would in fact be the least expensive format. His decision was without prejudice to Mrs. Kaur renewing her request for an electronic hearing upon obtaining such evidence.

On May 28, 2010, Mr. Bedi wrote to the Commission providing information about the cost of Mrs. Kaur’s attendance at the hearing. These submissions were in support of Mrs. Kaur seeking to renew her motion to attend the hearing by telephone or, in the alternative, an order requiring Personal to pay for Mrs.Kaur’s travel expenses and those of a companion. Mr. Bedi renewed the motion before me at the commencement of the hearing.

Rule 37.1 of the Code provides:

The arbitrator may:

(a) hold an oral hearing;

(b) hold a written hearing;

(c) hold an electronic hearing; or

(d) hold a hearing which combines one or more of the above formats.

I find that the hearing arbitrator has the authority to determine the format of the hearing. As Mr. Bedi’s capacity to represent Mrs. Kaur is in issue until he and Mrs. Kaur comply with the terms set out above, I decline to determine the format of the hearing at this time. Upon Mr. Bedi and Mrs. Kaur complying with the terms set out above or upon Mrs. Kaur informing Personal and the Commission that she intends to represent herself or that she has retained a lawyer or licensed paralegal to represent her at the hearing I will conduct a motion by teleconference to determine the format of the hearing. Mrs. Kaur will be permitted to attend this motion by teleconference. The scheduling of the teleconference will be set by the parties in consultation with the Case Administrator on or before February 28, 2011.

EXPENSES:

Personal sought an expense award payable by Mr. Bedi personally pursuant to subsection 282(11.2) of the Insurance Act. It provides: “An arbitrator may make an order requiring a person representing an insured person or an insurer for compensation in an arbitration proceeding to personally pay all or part of any expenses awarded against a party if the arbitrator is satisfied that…” As Mr. Bedi is not entitled to receive compensation, an award of expenses against him personally is statute barred.

The adjournment was necessitated by my declining to permit Mr. Bedi to represent Mrs. Kaur until I had satisfied myself that he met the requirements of the Law Society Act and its Regulations. As a consequence, each party will bear its own expenses.

December 29, 2010

Denise Ashby

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 153

FSCO A09-002515

BETWEEN:

JASWANT KAUR

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. On or before February 14, 2011 Iqbal S. Bedi shall serve upon Personal and file with the Financial Services Commission of Ontario a Statutory Declaration providing the following information:

(i) he is undertaking the representation of his mother-in-law, Jaswant Kaur, without expecting any fee or compensation for his services.

(ii) if it is determined that Mrs. Kaur is entitled to payments from Personal the payments will be paid to Mrs. Kaur and will not benefit Mr. Bedi, Mr. Bedi’s wife or his children or be held for the benefit of his children.

(iii) that he has provided a copy of his Declaration to Mrs. Kaur translated from English to Punjabi and a copy of the translation is appended to his Declaration.

2. On or before February 14, 2011, Jaswant Kaur, shall serve upon Personal and file with the Financial Services Commission of Ontario a written statement in English or in the alternative translated from Punjabi to English, providing the following information:

(i) confirmation that she received Mr. Bedi’s Declaration;

(ii) she appoints Mr. Bedi to act on her behalf;

(iii) Mr. Bedi, his wife and his children will not receive direct or indirect compensation, gain or reward from this proceeding;

(iv) her home address and a telephone number at which she can be reached;

(v) the address, account number and other particulars of a financial institution in India sufficient to permit Personal to deposit any payments it is ordered to make to Mrs. Kaur; and

(vi) her written instructions to Personal to deposit any payment it is ordered to make to the account.

3. If Mr. Bedi and Mrs. Kaur comply with the foregoing or Mrs. Kaur elects to represent herself or retains either a lawyer or a licensed paralegal to represent her in these proceedings, the parties shall on or before February 28, 2011, in consultation with the Case Administrator, schedule a date for a motion before me by teleconference to determine the format of the hearing.

December 29, 2010

Denise Ashby

Arbitrator

Date

Footnotes

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