Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 4
Appeal P09-00019
OFFICE OF THE DIRECTOR OF ARBITRATIONS
IIIIA TROUBITSINE Appellant
and
TTC INSURANCE COMPANY LIMITED Respondent
BEFORE: Delegate Lawrence Blackman
REPRESENTATIVES: Mr. Owen Elliot for the Appellant, Mr. Iliia Troubitsine Mr. Gurrinderpal Pannu for the Respondent, TTC Insurance Company Limited
HEARING DATE: December 14, 2009
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
This appeal is allowed. Paragraphs 2 and 3 of the Arbitrator’s April 30, 2009 Order and Results #2 and #3 of her decision are rescinded.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code, (Fourth Edition, Updated – October 2003).
January 14, 2010
Lawrence Blackman Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL AND THE APPELLANT’S SUBMISSIONS
The Appellant, Mr. Iliia Troubitsine, alleges that he was injured on a bus on November 10, 2006 and applied to the Respondent, TTC Insurance Company Limited, for statutory automobile accident benefits payable under the Schedule.1
The Respondent brought a motion at arbitration to determine the consequences of the Appellant’s non-attendance at insurer medical examinations (“IMEs”) requested pursuant to section 42 of the Schedule and examinations under oath requested under subsection 33(1.1). In her April 30, 2009 decision, Arbitrator Nastasi (the “Arbitrator”) held, in part, that:
As a result of the Appellant’s failure to attend examinations under oath without a reasonable explanation, the Respondent was entitled to rely upon subsection 33(2) of the Schedule and was not liable to pay benefits from January 22 to June 15, 2007 and then ongoing from November 1, 2007 until such time as the Appellant complied with subsection 33(1.1).
The arbitration was stayed pending the Appellant’s attendance at an examination under oath to be scheduled by the Respondent in accordance with the notice requirements in the Schedule and within 60 days of the issuance of the Arbitrator’s order.
The Appellant asks that these orders be set aside, arguing that the Arbitrator erred in:
- Finding that the Respondent’s notices regarding an examination under oath were sufficient when they did not meet the criteria of subsection 33(1.3) of the Schedule by omitting:
(a) that the insured person was entitled to be represented at his or her own expense at the examination under oath by such counsel or other representative of his or her choice as the law otherwise permits, in accordance with paragraph 33(1.3)(2) and subsection 33(1.2) of the Schedule; and,
(b) that the scope of the examination would be limited to matters that were relevant to the person’s entitlement to benefits.
- Granting a stay of proceedings when this is not the statutory remedy for failure to attend an examination under oath. Rather, an alternative remedy is provided, the Respondent did not request a stay and the granting of such a stay is inconsistent with Commission case law.
II. THE RESPONDENT’S SUBMISSIONS
The Respondent argues that the Appellant failed to attend the examination under oath not because of any inadequacies in its notice but because he was not made aware of the appointments by his lawyer and that either he or his lawyer never intended the Appellant to attend.
The Respondent submits that the scope of the examination under oath was set out in its December 12, 2006 correspondence. At that time the Respondent advised that no statutory accident benefits were payable because the Respondent wished to investigate the circumstances surrounding the incident, being unable to confirm that the Appellant’s injuries arose out of the direct use or operation of the Respondent’s vehicle. In its December 20, 2006 letter, the Respondent’s claims adjuster specifically stated “I am required to investigate the circumstances for which this claim arises to assist … in considering your client’s eligibility to benefits.”
The Respondent further argues that the requirement to make reasonable efforts to schedule the examination under oath is met by giving reasonable advance notice of the scope and reasons for the examination from the outset of the accident benefits process. Subsection 68(2) of the Schedule provides that any document, including a notice in writing, may be delivered by faxing the document to the person or to the solicitor or authorized representative. The Arbitrator found that the notices “adequately set out the scope of the examination. The reason and purpose for the examination as well as the consequences for not attending were made clear in the correspondence … I find that the notices were not deficient and that Mr. Troubitsine received timely and proper notice as required by section 33(1.3) of the Schedule.”
The Respondent submits that while it did not specifically state in its letters that the Appellant was entitled to be represented by counsel, the Appellant was represented by experienced counsel throughout the process. It was thus redundant and unnecessary that the Respondent advise the Appellant of his right to be represented. Further, the Appellant’s counsel never indicated that this was a problem. The Appellant testified that he was not aware of the January 22, 2007 examination under oath and would have gone if he had known. It would be unfair to punish the Respondent when either the Appellant or his counsel had no intention of the Appellant attending the examination.
The Respondent cites Tendenilla and Allstate Insurance Company of Canada, (FSCO A06-001684, February 27, 2008) where Arbitrator Muir found that there was a suggestion that the same law firm representing the Appellant herein had no intention of allowing its client to attend an examination and that it could be argued that there was “a stratagem of hiding in the weeds” in the hopes that the notice letter (addressed to counsel and not to the insured person) “could be later raised as a shield from the consequences of non-attendance at the examination.”
The Respondent submits that this case differs from Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, in that there was no evidence that the Appellant was under any misapprehension about his right to have counsel present at the examination under oath or that he suffered any prejudice because he was not advised that he was entitled to be represented. The Respondent cites Golic v. ING Insurance Company of Canada, 2008 CanLII 69502 (ON SC), [2008] O.J. No. 5408 (ON S.C.):
The majority decision of the Supreme Court in Smith v. Co-operators reflects the need as a public policy objective to ensure as a matter of consumer protection that a claimant whose insurance benefits have been terminated would be fully informed and have a clear layman’s understanding of exactly what were his or her procedural options. I agree fully with that majority opinion. However, nothing in that opinion suggests to my mind that the Supreme Court, or Borins J. at the Court of Appeal would have been willing to afford the same consumer protection to a litigant like the plaintiff in the circumstances of this case, to permit such a plaintiff to feign ignorance and use the consumer protection objectives of the legislation to mask the obvious knowledge he would have acquired through the course of three or four mediations of essentially the same claim. To permit Mr. Golic in the circumstances of this case to now make an amendment to his pleadings, using the laudable principles of that decision to mask his own failure to prosecute this new claim on a timely basis, would be an abuse of the consumer protection objectives reflected in the legislation, and that were upheld in Smith. In my opinion, the facts of this case are totally distinguishable from those in Smith, and in this case I find there is no injustice in applying the provisions of the Insurance Act and the Schedule to bar Mr. Golic’s requested pleadings amendment.
The Respondent argued in oral submissions that in every case where an insured person is already represented an insurer does not have to comply with paragraph 33(1.3)(2) of the Schedule. The other basis for an insurer’s exemption from the requirements of subsection 33(1.3), it is submitted, is where there is evidence that the insured person has no intention of attending. In such a case, one should weigh the relative prejudice to the parties.
In this case, the Appellant should not be allowed to use consumer protection objectives when there was no intention of attending the examination under oath. Golic “demonstrates that not all applicants are entitled to the same level of consumer protection and that the facts in each circumstance need to be considered.”
Regarding the stay of arbitration proceedings, the Respondent submits that the 2003 amendment to the Schedule allowing examinations under oath was heralded as a tool to allow insurers to investigate claims of fraud and meet the insured person face to face to determine their credibility and entitlement to benefits. In Baig and Guarantee Co. of North America, 2007 ONCA 847, [2007] O.J. No. 4727, the Ontario Court of Appeal held that:
The purpose of the statutory examination is to provide insurers with the opportunity to obtain the knowledge of facts necessary to enable them to decide upon their obligations and to protect them against false claims.
The Respondent submits that arbitrators have created a remedy outside of the legislation regarding section 42 IME non-attendance, especially where the current remedy in the Schedule is inadequate. Arbitrator Muir held in Balanki and Zurich Insurance Company (Commercial Business), (FSCO A04-002286, April 11, 2005):
… an insurer who has been denied a medical assessment because an applicant has refused to attend a section 42 assessment, may be significantly prejudiced in responding to an applicant’s medical opinions. Indeed, they may have no response at all … It is this potential for significant unfairness, bordering on an abuse of process, that gave rise to the use of the stay or adjournment pending attendance at the requested assessment.
In this case, it is argued that it is prejudicial and unfair to the Respondent that it will be unable to properly respond to whether an accident occurred without an examination under oath as to who was operating the bus. As in Belair Insurance Company Inc. and F.S., (FSCO P96-00039, June 11, 1996), the Respondent may be prevented from having an adequate hearing without conducting an examination under oath to determine a potential witness, the bus operator, who could assist in providing evidence about the alleged incident.
The Appellant relies on the following comments of Delegate Naylor in F.S.:
After an applicant has accessed dispute resolution, the exercise of an insurers right to require an examination and the consequences of any refusal to attend, are subject to the principles and rules of the applicants chosen forum for adjudicating the dispute. In the courts, the insurers right to an examination is subordinated to the courts power to order a medical examination, on motion of a party, under section 105 of the Courts of Justice Act, R.S.O. 1990, Chap C.43. In the arbitration process, the insurers right to require an examination is subject to the general discretion of the tribunal to control its own processes in the context of the overall objectives of the system. These include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute. The objectives are generally served by permitting insurers to arrange timely medical examinations, in appropriate cases.
A stay helps achieve adequate disclosure and an informed hearing. Requiring the Respondent to hear evidence for the first time at the arbitration hearing would be unfair. Further, having a stay until the Appellant attends an examination under oath would then allow a preliminary hearing to be held as to whether there was indeed an accident. That, in accordance with Rule 1.1 of the Dispute Resolution Practice Code, (Fourth Edition, Updated – October 2003) (the “Code”), would result in the most just, quickest and least expensive means of resolving this dispute.
Both Balanki and in Salah and State Farm Mutual Automobile Insurance Company, (FSCO A04-000210, November 2, 2005), it is argued, were concerned with the late timing of the requested examinations, which is not the case here. The Respondent submits that “if the insurer was allowed to conduct an examination under oath for the purpose of litigation it would be akin to an examination for discovery.” The Respondent argues that CAA Insurance Company (Ontario) and Sandhu, (FSCO P01-00044, January 18, 2002), that held that such examinations are not part of this adjudicative process, was decided prior to the amendment in the Schedule allowing such examinations, and is no longer applicable.
III. ANALYSIS
(a) Subsection 33(1.3) Notice
Subsection 33(1.1) of the Schedule provides that if requested by the insurer, a person who applied for a benefit under this Regulation as a result of an accident shall submit to an examination under oath, within stated restrictions. Subsection 33(2) of the Schedule states, in part, that the insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection 33(1.1).
Subsection 33(1.3) of the Schedule states that the insurer “shall” give the person to be examined reasonable advance notice, of amongst other things, incorporating subsection 33(1.2), the person’s entitlement to be represented at the examination under oath, at his or her own expense, by such counsel or other representative of his or her choice as the law otherwise permits.
The Arbitrator found that while the Respondent’s notice “did not include specific information about the Applicant’s right to be represented,” it was not fatally flawed because (a) it did not result in any prejudice to the Applicant and (b) subsection 68(2) of the Schedule permits the notice of an examination to be delivered to an insured’s solicitor and does not require that the notice be sent to both the insured person and to their solicitor. I am persuaded that the Arbitrator erred in law regarding the subsection 33(1.3) notice for the following reasons:
Subsection 33(3) of the Schedule specifically provides that subsection 33(2) does not apply in respect of a non-compliance with subsection 33(1.3) if “the insurer fails to comply with subsection (1.3) or (1.4).” The language and requirements of subsection 33(1.3) are simple and straightforward. There is no ambiguity as to the minimum notice requirements. The provision uses the mandatory “shall” regarding the specific contents of the notice. The subsection provides no exception if an insured is already represented. The subsection does not contemplate a weighing of prejudice prior to a specific notice requirement being in fact deemed necessary.
The consequences of non-compliance in the Schedule are significant, namely, the non-payment of benefits. It is implicit in the legislation that the insured person be able to make an informed decision whether or not to attend such an examination.
Part of being properly informed is the right of representation at such examinations. This right is repeatedly noted in section 33. It is a stand alone right in subsection 33(1.2). It is mandated as part of the requisite notice in subsection 33(1.3). It is encompassed in paragraph 33(3)(a) as an exemption to the consequences of non-compliance by an insured person. It is highlighted in paragraph 33(3)(b) as a specific exemption to the consequences of non-compliance where “the insurer interferes with the insured person’s right to be represented as described in subsection (1.2).”
The importance and mandatory obligation of notice of this right to representation is not diluted or voided by subsection 68(2) of the Schedule that permits service of a notice on a solicitor or authorized representative.
What is to be included in the notice pursuant to 33(1.3) of the Schedule is a question of law. Whether it was included is a question of fact.
The Arbitrator found that such notice regarding the right to representation was not provided. The Arbitrator found that such notice was not required in the specific circumstances of this case.
The Arbitrator’s decision is inconsistent with the Supreme Court decision in Smith v. Co-operators. In that case, at first instance, Mackinnon J., in Smith v. Co-operators General Insurance Company, [1999] O.J. No. 2484, found that the insured person was represented by counsel at all times. Contrary to what was argued herein, the Supreme Court of Canada did not find that the insured person in Smith was under some misapprehension. Rather, the court was not persuaded either by the information provided to that insured by the Report of Mediator or that the insurer’s notice was in a form prescribed by the Commissioner of Insurance. The Court held that:
… insurance law is, in many respects, geared towards protection of the consumer. This approach obliges the courts to impose bright-line boundaries between the permissible and the impermissible without undue solicitude for particular circumstances that might operate against claimants in certain cases.
In Wahidpur and Unifund Assurance Company, (FSCO P08-00006, March 25, 2009) I commented “that regarding provisions such as section 33, notice that is not clear, straightforward, consistent or inclusive of the necessary components is beyond the ‘bright-line boundaries between the permissible and the impermissible.’”
The Arbitrator noted in Lay and Wawanesa Mutual Insurance Company, (FSCO A06-001713, June 15, 2007) (pertaining to a production request) that “[t]he bright line serves a purpose and I am not convinced that to blur that line in this case is warranted.” Notwithstanding her decision in this case, the Arbitrator’s April 30, 2009 order still required this Respondent to schedule an examination under oath “in accordance with the notice requirements set out in the Schedule.”
The Arbitrator did not find that the Appellant had no intention of attending the examination under oath. At page nine of her decision, she states that “it may be the case.” In any event, there is no exception provided under subsection 33(1.3) (or in Smith) where an insurer is of the view, or even an adjudicative finding is made that a proper notice would not have made any difference. As stated by the Ontario Court of Appeal in Golic v. ING Insurance Company of Canada, 2009 ONCA 836, with regard to Smith, “Gonthier J. rejected an argument that the court should consider circumstances beyond the insurer’s notice of refusal when determining whether the refusal was adequate.”
Golic did not address the notice requirements of subsection 33(1.3) and the consequences therein. The Court of Appeal upheld the lower court decision, but on a different basis, namely that the refusal letter differed from that in Smith and met the consumer protection underpinning in that case that “the rationale is the need to ensure that an insured is properly informed about the dispute resolution process at the time an insurer refused to pay benefits.”
In addition to watering down statutory requirements, the Arbitrator’s decision encourages individual determinations as to what should or should not be included in the notice notwithstanding the clear, simple statutory language, and promotes unnecessary litigation by weighing, on a case by case basis, the relative prejudice to the parties.
The Respondent states that it “transports more than 1.4 million people per day and accordingly a large number of accident benefits claims are made each year.” Whether this is a question of resources, I am not persuaded that incidents of fraud will be reduced by adjudicative indulgence of incomplete and deficient regulatory compliance. To prevent claimants “hiding in the weeds,” an insurer should not be planting and fertilizing the dandelions. If the Respondent had followed the simple, straightforward statutory requirements of subsection 33(1.3) there could be no legitimate defence raised by the Appellant. It would seem to be far more efficient to simply routinely follow the set legislative requirements rather than expending time and effort determining in each case whether, and to what extent, to comply with the Regulation.
Subsection 33(1.3) of the Schedule also provides that the notice shall set out “that the scope of the examination will be limited to matters that are relevant to the person’s entitlement to benefits.” The Arbitrator found that “the notices also adequately set out the scope of the examination.”
Delegate McMahon stated in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003) that “a finding of fact made in the complete absence of supporting evidence amounts to an error of law.” I am not persuaded that there was a complete absence of supporting evidence regarding the Arbitrator’s finding of fact.
(b) Stay of Proceedings
For completeness I will also address the further issue regarding the stay of proceedings. I find that the Arbitrator erred in law in ordering a stay, for the following reasons:
- In F.S. and Belair Insurance Company Inc., (FSCO P96-00039, June 11, 1996), Delegate Naylor held that in “the arbitration process, the insurers right to require [a medical] examination is subject to the general discretion of the tribunal to control its own processes in the context of the overall objectives of the system. These include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute.” The overall objective of this alternative dispute resolution system also includes, under Rule 1.1 of the Code, that the Rules are to be interpreted to produce the most just, quickest and least expensive resolution of the dispute.
Delegate McMahon confirmed in Sandhu that the Commission’s:
… processes do not include examinations for discovery. An insured person who elects to arbitrate, instead of bringing a civil action, foregoes the opportunity to conduct a pre-hearing examination of one of the insurer’s representatives. But correspondingly, he is not subjected to such an examination at the behest of the insurer. The insured person’s election must be honoured and given meaning.
I am persuaded that Sandhu remains good law. The Arbitrator’s decision is contrary to Sandhu.
I agree with the Arbitrator that examinations under oath are important in, amongst other things, assessing credibility, identifying potential witnesses and relevant documents and assisting a party in preparing for a hearing and specifically for cross-examination. However, it would be fundamentally unfair and unjust in an adjudicative proceeding, as well as institutionally biased, that only one party should have the tactical advantage of an oral, pre-hearing discovery under oath. Indeed, the basis of the appeal decision in F.S. was the unfairness to the insurer of proceeding to a hearing without the opportunity to conduct its own psychiatric examination.
The introduction of examinations under oath in the adjusting process under the Schedule did not create a new procedural right of examinations under oath in the arbitration process under the Code. As Arbitrator Muir noted in Balanki, Delegate Naylor, in F.S., drew her authority from the Insurance Act, but more importantly the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, in particular the power to adjourn the hearing “to permit an adequate hearing to be held.” Arbitrator Muir stated that:
… it is important to recall that the remedy sought here, a stay or adjournment of the arbitration pending the attendance of Mr. Balanki at an examination under oath, was developed by arbitrators not to enforce the insurer’s right to conduct assessments as such, but to address issues of fairness between the parties, which the available remedies in section 42 and elsewhere in the Schedule could not adequately address.
- The Arbitrator confused the adjusting process with the adjudicative process. She supported the Respondent’s need for an examination under oath as “part of the more general disclosure obligations placed on a claimant making a claim for benefits,” and “an important investigative tool.” She then concluded that to allow the Appellant to proceed to a hearing in the face of his non-compliance regarding subsection 33(1.1) of the Schedule would “result in an abuse of the process” that subsection 23(1) of the Statutory Powers Procedure Act allows an adjudicator to prevent.
However the Respondent specifically submits, at paragraph 40 of its written submissions, that it is “not conducting the examination [for the] purpose of litigation but rather to determine whether Mr. Troubitsine is eligible for benefits.” The purpose of the Statutory Powers Procedure Act is not to protect the integrity of the adjusting process under the Schedule.
- Arbitrator Muir, in Balanki, stated that “where the legislative provision provides for an express remedy, a statutory decision maker has limited jurisdiction to fashion other remedies.” Arbitrator Miller, in Salah, agreed with Arbitrator Muir. She held that she had no jurisdiction to grant an adjournment of an arbitration hearing as a remedy where an insured had failed to attend an examination under oath.
The Arbitrator states that she agrees with the Respondent “that the available remedy under section 33(2) of the Schedule is not adequate to address the fairness issues and potential prejudice in this case.” It is difficult to discern what could be more draconian in this context than the non-entitlement to benefits in respect of any period of non-compliance with subsection 33(1.1) of the Schedule. It is also difficult to discern the authority of an adjudicator to rewrite section 33 to fashion a more adequate remedy any more than the authority of an adjudicator to determine that the maximum $400 weekly income replacement benefit under subparagraph 7(1)(2)(i) of the Schedule is inadequate or that in certain circumstances the maximum 50% special award under subsection 282(10) of the Insurance Act needs to be enhanced.
- The Respondent submits, at paragraph 33 of its written submissions, that in this case it “may be prevented from having [an] ‘adequate hearing’ because without conducting the examination they cannot locate a potential witness, the bus operator, who would have assisted in providing evidence about the alleged incident. If an examination were conducted the TTC could have determined who was operating the bus, and what, if any, evidence the operator has regarding the alleged incident.”
Rule 32.3 of the Code provides that an arbitrator “may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate.” Rule 33 of the Code provides as an express purpose of the pre-hearing discussion the identification of witnesses. One takes note that such information is routinely exchanged at pre-hearing discussions.
In Ramakrishnan and Primmum Insurance Company, (FSCO A09-001407, November 3, 2009), a decision relied upon by the Respondent, Arbitrator Wilson ordered the applicant in that case to provide the insurer with complete written answers to three specific questions posed by the insurer. Arbitrator Wilson held that “[c]ertainly ordering an unnecessary examination under oath would offend the basic principle that arbitration should seek [the] quickest and least expensive resolution of the dispute.”
Rule 34 of the Code sets out the consequences of non-compliance with any order, agreement or time line, including ordering expenses, excluding a document and drawing an adverse inference.
In this case, the Arbitrator simply bypassed the various provisions provided by the Code allowing the necessary pre-hearing exchange of information and a fair hearing. The Arbitrator’s statement that the “arbitration process is intended to provide a timely, cost effective and efficient alternative to court proceedings” is inconsistent with the additional, time consuming, costly and inadequately balanced procedural step she has crafted.
- There is further the concern how one prevents the exception from becoming the rule. If examinations under oath are allowed in one case, are counsel negligent if they do not request such examinations in every case? The March 31, 2009 Five-Year Review by the Superintendant of Financial Services released pursuant to section 289.1 of the Insurance Act, under the section entitled “Dispute Resolution at FSCO,” states that:
The insurance industry commented that the system has become expensive, slow and that processes duplicate each other. Only a small proportion of cases in the arbitration process deal with actual entitlement decisions, and most of those cases are about matters other than benefits (e.g., procedure, expenses, and assessments). Procedural issues are dominating the system and thus adding unnecessary costs.
The search for the truth is extremely important, as honoured by the discovery and hearing processes set out in the Code. This dispute resolution system is also meant to be a truly efficient, expeditious, cost-effective and simplified alternative to the court system. The balance between the sometimes competing goals of Rule 1.1 has resulted in not including in the Code pre-hearing discovery examinations under oath.
If I had found that Sandhu was no longer good law and that pre-hearing discovery examinations under oath are possible extraordinary remedies available to both parties under section 23 of the Statutory Powers Procedure Act, it would remain incumbent upon an arbitrator to satisfy oneself of each of the following:
for reasons provided by the arbitrator, the examination is necessary, not with regard to the adjusting process and not to simply have a better arbitration hearing, but rather to prevent an actual specified abuse of the adjudicative process;
all other avenues for pre-hearing discovery are not merely inadequate but have proven to be inadequate;
the examination is limited to specific enumerated questions approved by the arbitrator pertaining to information that is relevant to the arbitration hearing, is reasonable and necessary to be obtained prior to an arbitration hearing and cannot be obtained through any other pre-hearing procedure;
the right to examination in such circumstances is appropriately and fairly provided to both parties, including the consideration of an interim award of legal expenses under subsection 282(11.1) of the Insurance Act payable by the moving party;
the examination is not simply or significantly to test credibility, which is a function of the arbitration hearing itself; and,
for reasons provided by the arbitrator, the examination will lead to not only a more just result, but to a less expensive and more expeditious resolution of the dispute and will not serve to undermine this simplified, alternative dispute resolution process.
This, however, is not such a case.
Accordingly, this appeal is allowed and paragraphs 2 and 3 of the Arbitrator’s April 30, 2009 Order and Results #2 and #3 of her decision are rescinded.
IV. EXPENSES
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Code.
January 14, 2010
Lawrence Blackman Director’s Delegate
Date