Joseph Galati v. Aviva Canada Inc., 2011 ONFSCDRS 1

Financial Services Commission of Ontario / Commission des services financiers de l'Ontario

Neutral Citation: 2011 ONFSCDRS 1

Appeal P07-00004

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JOSEPH GALATI Appellant

and

AVIVA CANADA INC. Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: The Appellant, Mr. Joseph Galati, is self-represented Ms. Catherine Korte and Mr. Gordon Lee for the Respondent, Aviva Canada Inc.

HEARING DATE: By written submissions received by October 25, 2010

APPEAL ORDER

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

1. The Arbitrator's order dated October 27, 2006 is confirmed and this appeal is dismissed.

2. If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested within thirty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the quantum of such expenses.

January 5, 2011

Lawrence Blackman Director's Delegate

Date

REASONS FOR DECISION

I. BACKGROUND

The Appellant, Mr. Joseph Galati, was injured in a motor vehicle accident on May 13, 1997. As a result, he applied to his first-party automobile insurer, the Respondent, Aviva Canada Inc., for statutory accident benefits payable under the Schedule.[1] The Respondent initially paid the Appellant certain benefits, but terminated payment of income replacement benefits ("IRBs") late in 1997. In 2004, the Appellant applied to the Financial Services Commission of Ontario (the "Commission") for mediation. Mediation failed to resolve the issues in dispute and the Appellant applied for arbitration at the Commission.

In his August 19, 2005 preliminary issue decision, Arbitrator Feldman determined that the issues raised by the Appellant in arbitration were not statute barred by the limitation provision. He further held that the issues in dispute were to be decided on the merits and that the Respondent was not required to pay IRBs to the Appellant solely as a result of its failure to comply with sections 37 and 49 of the Schedule. Arbitrator Feldman noted that, on consent, the issues of non-earner benefits ("NEBs") and caregiver benefits were withdrawn from arbitration.

In July 2006, the parties came before Arbitrator Sampliner (the "Arbitrator") for determination of the Appellant's entitlement to IRBs after September 22, 1997, $15,000 in housekeeping and home maintenance expenses, $22,743.63 in medical and rehabilitation expenses, $1,436 for the cost of two medical examinations, a special award and legal expenses.

The Arbitrator's October 27, 2006 decision dismissed the Appellant's claim that he had lost $30,000 on the sale of his home as this claim did not fall within any category of benefits under the Schedule. The Arbitrator also dismissed the balance of the Appellant's claim, other than awarding $500 for nerve block injections, $1,548 for massage therapy treatment and reimbursement of pain and sleep medications incurred since the accident. The Arbitrator deferred the question of legal expenses.

By letter dated March 20, 2007, Delegate Makepeace acknowledged the Appellant's Notice of Appeal. I took over carriage of this appeal on December 3, 2007. By letter dated December 19, 2007, the Galati family advised that the Appellant had been hospitalized since December 8, 2007 from a heart attack, and was still in intensive care. My letter of December 21, 2007 advised that I was putting this matter on hold, pending the Appellant's recovery. My July 2, 2008 letter inquired whether it was appropriate that this matter remain on hold or whether it should proceed.

The Appellant's November 9, 2008 letter stated that he was now represented by Dr. N. Petrella. My November 14, 2008 letter sought clarification from Dr. Petrella whether he was licensed to provide legal services or whether he came under a Law Society of Upper Canada exemption. I also sought clarification from the Appellant whether under Rule 9.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the "Code"), Dr. Petrella had full authorization, including discussing all issues in dispute.

My January 5 and 14, 2009 letters confirmed a lack of a response from either the Appellant or Dr. Petrella to my letter. However, on February 2, 2009, I confirmed the Appellant's advice as to Dr. Petrella's Law Society exemption of acting for family, a friend or a neighbour for no fee. I thus lifted the stay and on March 11, 2009, a preliminary conference was held with both representatives.

My March 11, 2009 letter confirmed the Appellant's two preliminary issues, namely, (1) whether fresh evidence should be allowed in this appeal, and (2) whether the stenographers at the arbitration hearing should be required to produce their tapes of the proceeding. I set June 19, 2009 as the deadline for written submissions on these two issues.

My June 22, 2009 letter decision applied the criteria in Budd and Personal Insurance Company of Canada, (FSCO P99-00032, January 8, 2000) regarding allowing fresh evidence on appeal, namely that:

• 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.

I was not persuaded that the requested fresh evidence should be allowed in this appeal. I held, in part, that the Appellant did not explain why his pre-accident OHIP records could not be produced for a hearing held some nine years after his benefits ended, other than allegedly poor representation. I was not persuaded that these allegations negated the due diligence requirement.

Further, it was difficult to discern how a July 7, 1997 report of Dr. Schapira that was not entered into evidence could reasonably, when taken with the other evidence adduced at the arbitration, be expected to have affected the result, given the Appellant's arguments against the value of this report.

In addition, a translated March 24, 2009 report of Dr. Leroux stating that the Appellant had developed a depressive state, in part due to the car accident, did not address the requisite disability tests under the Schedule. It was also not clear why this report, or a similar report could not, with due diligence, have been adduced at arbitration. Further, given the limitations of the report, it was not clear that this evidence, if believed, could reasonably, when taken with the other evidence adduced, be expected to have affected the result of the arbitration.

Regarding the audio tapes, I noted the Respondent's May 22, 2009 letter to Dr. Petrella, copied to the Commission, enclosing seven CDs of the reporter's tapes from the July 2006 arbitration.

My letter further noted correspondence directly from the Appellant now seeking interim benefits. Dr. Petrella had not noted this as a preliminary issue at the March 11, 2009 conference. Stating that the Appellant was essentially asking that this appeal perform as a new arbitration hearing, I held that this was not the function of an appeal under subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I.8, that limits appeals to errors of law. Further, while the Appellant may be arguing that there had been a material change in his circumstances and was seeking to vary the Arbitrator's order, that was not encompassed by a subsection 283(1) appeal, but rather was a separate and distinct application for variation under section 284 of the Insurance Act.

For the reasons more fully set out in my June 22, 2009 letter decision, I found it appropriate, rather than make an interim benefits order, that the matter proceed to an oral appeal hearing for full argument as to whether there was an error of law upon which to reverse the Arbitrator's October 27, 2006 decision. On the consent of both parties, an agreed December 2, 2009 appeal hearing date was confirmed by Notice of Hearing dated June 30, 2009.

By letter received July 7, 2009, the Appellant himself wrote of alleged conflict of interests that (1) the Respondent's corporate offices were situated in the same complex as the Commission; (2) the court reporter's offices were located in the same complex as the Respondent's counsel; and (3) the Arbitrator relied on the voice of the court reporter, rendering his decision "faulty and of no consequence." The Appellant submitted that the "Joseph Galati" depicted in the transcript did not reflect his grammatical speech nor his writing and that the audio tapes were faulty and of no consequence. The Appellant requested that the true and actual audio tapes be produced. Further, he sought "a revocation to the totality of the arbitration presided over" by the Arbitrator.

The Appellant indicated that if the arbitration were not revoked, he asked for a ninety-day extension to retain proper counsel and to "transfer the totality of this matter to the provincial court, including the issue of catastrophic impairment." The Appellant concluded by stating that he did not wish to receive any communications in any manner and that communication should only be with Dr. Petrella, his authorized representative.

My July 21, 2009 letter to both representatives, not copied to the Appellant as he requested, asked Dr. Petrella to confirm in writing what, if any, preliminary orders he was now seeking on the Appellant's behalf, including any adjournment request. My August 6 and November 4, 2009 letters confirmed Dr. Petrella's non-response. The latter letter confirmed that the December 2, 2010 appeal hearing was still proceeding and that if I did not receive a response from Dr. Petrella by November 18, 2010, a copy of my letter would be sent to the Appellant himself. Receiving no response from Dr. Petrella, my November 19, 2009 letter was copied to the Appellant.

On November 26, 2009, four business days before the hearing date set, on consent, five months before, a lawyer, Mr. P. Di Prima wrote that he had been consulted by the Appellant to review this file and, hence, requested a postponement. My letter of the same day asked for confirmation that Dr. Petrella no longer represented the Appellant and that Mr. Di Prima was taking over carriage of the Appellant's appeal. I also asked the Respondent for its adjournment submissions.

My November 30, 2009 letter indicated I had not received any response from Dr. Petrella or from Mr. Di Prima. I had, however, received correspondence from the Appellant himself and from the Respondent's counsel. The latter indicated that the Respondent consented to the adjournment on the understanding there would be no further adjournments at the Appellant's request. The Appellant stated that Mr. Di Prima was reviewing his file and that he was no longer represented by Dr. Petrella in this matter. Accordingly, I removed Dr. Petrella as the Appellant's representative in this appeal.

My November 30, 2009 letter noted, in part, Practice Note 9 of the Code that:

The Commission has an obligation to conduct arbitrations efficiently and speedily. Parties are contacted and agree to pre-hearing and hearing dates well in advance of the dates set. Therefore, adjournments are granted only sparingly once dates have been set.

Notwithstanding the above, or the Appellant's late adjournment request and his failure to comply with Rule 72 of the Code in not first contacting the other side or providing alternative hearing dates, I adjourned the December 2, 2009 appeal hearing, on terms, including that the adjournment was peremptory to the Appellant. My letter explained that this meant that the Appellant would not be allowed any further adjournment except for unforeseen and extraordinary circumstances beyond his control. If the basis of the adjournment request was medical, a supporting letter signed by a qualified medical practitioner was to be provided.

The Appellant was given six weeks to confer with Mr. Di Prima or such other possible new representative as he may consider. A new appeal hearing date would then be set forthwith after January 11, 2010 for a date within a reasonable period. If a party did not co-operate in setting a new hearing date, a binding hearing date, time and place would be set in the absence of the party. I reserved on the question of the legal expenses of this adjournment.

The same day as my November 30, 2009 letter, I received a fax from Dr. Petrella advising he was obligated to withdraw as the Appellant's representative due to the demands of his practice and the complexity of this case. By letter dated January 11, 2010, Mr. Di Prima advised that he had been unable to contact the Appellant but that he should be able to reach him within the next few days and get back to me fairly quickly. My January 15, 2010 letter indicated I had heard nothing further from either Mr. Di Prima or the Appellant.

Mr. Di Prima's January 15, 2010 letter indicated that the Appellant had left hospital January 13th without indicating the reason for or the duration of the stay, and was to meet him on January 21, 2010. My February 5, 2010 letter confirmed that on February 4th I had phoned Mr. Di Prima to determine whether he was retained in this matter. Mr. Di Prima indicated he was not formally retained but wished to assist the Appellant.

My letter noted that while the Commission sought to reasonably accommodate parties, specifically trying to set hearing dates on consent, reasonableness did not mean that the Commission must plead for a party to respond to a letter or beg that a party provide hearing dates or comply with an order. Rather, the Appeals Administrator would be contacting the parties to set a new hearing date. If a party did not wish to participate, a date would be set in their absence.

I also noted that Mr. Di Prima's role in this proceeding was still uncertain. I referenced specific cases regarding counsel being appointed a "friend of the court" or as a "McKenzie Friend," and asked for Mr. Di Prima's submissions, including possible entitlement or liability for legal expenses.

My February 9, 2010 letter indicated that Mr. Di Prima's February 5, 2010 letter, stating only that he would be assisting the Appellant but not formally appearing on the record, did not respond to the specifics of my letter. As Mr. Di Prima had no standing as representative, "friend of the court" or a "McKenzie Friend," on February 8, 2009 the Appeals Administrator had contacted the Respondent's counsel and the Appellant directly to set a new appeal hearing date.

My February 9, 2010 letter set September 21, 2010 as the tentative new hearing date, allowing the Appellant a further week if he had second thoughts and wished to change this hearing date, to confirm a new agreeable date. Not hearing from either party, the Commission's February 18, 2010 Notice of Hearing, confirmed the agreed new September 21, 2010 hearing date.

My April 7, 2010 letter confirmed the Appellant's correspondence received March 31, 2010 and April 6, 2010 requesting interim benefits and payment of "all arrears plus interest and special award," and set time limits for the exchange of submissions. My May 17, 2010 letter decision determined, upon considering the written submissions received, that the Appellant was not entitled to an award of interim benefits. The decision stated, in part:

7. An award for interim benefits is usually intended to apply in special circumstance to sustain an insured person until the adjudicative hearing. A summary motion for interim benefits is not an alternative final dispute resolution option to a full adjudicative hearing. As expanded upon in his May 7, 2010 submissions, Mr. Galati is essentially seeking immediate full payment of everything (in excess of $600,000) that he claims in this, or any other, proceeding. That is not the purpose of an interim award of benefits.

8. Determining whether an interim benefits award should be made is not a question of simply weighing Mr. Galati's needs against those of Aviva. My June 22, 2009 letter, citing Malabanan as well as Cripps and AXA Insurance (Canada), (OIC A-013360, August 8, 1997), noted that the criteria for interim benefits encompasses the strength of the entitlement claim and the existence of pressing circumstances.

As stated in my earlier correspondence, the entitlement test under the Schedule is not whether an insured person has "made a recovery to [his] former condition and health 'as best as possible.'" The subsection 5(1) test for the first 104 weeks of IRBs is whether the insured person suffered a substantial inability to perform the essential tasks of his or her employment in respect of which the insured person qualified for benefits. Thereafter, the statutory test is "complete inability to engage in any employment for which [the insured person] is reasonably suited by education, training or experience."

9. Mr. Galati's request for interim benefits is being made after a full arbitration hearing has been held, where Arbitrator Sampliner had the advantage of hearing oral evidence in addition to considering the documentary evidence filed and the parties' full submissions. The Arbitrator's October 27, 2006 decision that is the subject matter of this appeal, in determining disability, held at page ten that:

The health care evidence that Mr. Galati experienced continual mild low back pain does not outweigh the strong presumption he worked effectively, the weaknesses in his expert's opinions, and his lack of credibility. I accept Mr. Galati endures discomfort from back pain as a result of the accident, but find that he did not suffer a substantial inability performing his essential tasks as a real estate salesperson and office manager after September 22, 1997. He therefore is not entitled to further income replacement benefits.

Being restricted to questions of law, an appeal under subsection 283(1) of the Insurance Act is not a second chance to argue the determined facts of one's case. An appeal from an arbitrator's decision is not a rehearing of the evidence. Regarding the interim benefits' criterion of the strength of an appeal, at this point, subject to any further argument, this appeal to a significant degree appears to pertain to challenging the Arbitrator's weighing of the evidence, including, as set out in Mr. Galati's May 7, 2010 submissions, the reports of Drs. Gale and Jarzem.

My May 17, 2010 letter decision noted that the present hearing date was set, in part, to allow the Appellant sufficient time to put his legal representation in order. The Appellant's May 7, 2010 submissions listed five prior representatives in his claim against the Respondent and that he was still endeavouring, in his words, to find "competent and reliable" legal representation. I noted that the accommodation of the Appellant in setting the hearing date was not to unduly delay this appeal from the October 27, 2006 arbitration order, nor was it meant to provide a summary motion for interim benefits as the means of providing a final determination of this appeal.

By letter dated July 8, 2010, I confirmed the Appellant's further correspondence received that morning setting out further motion requests. The Appellant submitted that the Respondent had not provided copies of the audio recordings of the July 2006 hearing. He further requested that "this matter be discontinued at the FSCO and that it be granted the 'Right of Transfer' to the Ontario Superior Court," to "be heard by a jury of twelve (12) ordinary jurors." In the alternative, the Appellant requested that the September 21, 2010 hearing date be adjourned.

Written submissions were received from both parties by August 17, 2010. My August 24, 2010 letter decision denied the Appellant's motion that I transfer this appeal to court for a jury determination. I noted that subsection 283(1) of the Insurance Act provides that a "party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law." I had no authority, delegated or otherwise, to transfer this uncompleted appeal from the order of an arbitrator to the Ontario Superior Court of Justice for a jury, or other, determination.

I declined to reconsider my May 17, 2010 letter decision denying the Appellant's interim benefits motion. I also denied the Appellant's adjournment request of the September 21, 2010 appeal hearing.

I noted that under Rule 70.2 of the Code an adjudicator may permit a party to withdraw all or part of a dispute where all parties agree. If a party does not agree, an adjudicator may permit the withdrawal on such terms and conditions, including expenses, as are considered just. The Respondent asked that if the Appellant were permitted to withdraw his appeal, the Arbitrator's decision should be considered final and the Appellant prohibited from any further appeal of that decision.

I concluded that the Appellant did not wish to withdraw his appeal without the Commission approving the requested transfer. Having no jurisdiction to provide such approval, I held that the appeal would proceed.

The Appellant had requested, in the alternative, that the September 21, 2010 hearing be postponed for six months to allow funding of a catastrophic impairment rebuttal report, the Respondent's written notification of termination, the Appellant retaining personal injury counsel, having been told to avoid any stimuli that would endanger his life, and production of Dr. Schapira's report, audio tapes of three Designated Assessment Centre ("DAC") assessments, an audio tape requested in 1997 and the audio records of the July 2006 arbitration hearing.

I did not grant the Appellant's production and other requests. I noted that catastrophic impairment was not an issue before the Arbitrator. Accordingly, I was not persuaded that a rebuttal report was relevant in this present proceeding in that it did not bear upon a decisive or potentially decisive issue in this appeal, citing Budd. As to the written notification of termination sought, it was not clear how such notification would affect the result of this appeal.

As to Dr. Schapira's report, as previously noted, it was difficult to discern how the alleged failure of both counsel (including the Appellant's own representative) to put before the Arbitrator a report the Appellant states is both contrary to his own case and in addition, is erroneous, could be expected to have affected the arbitration result.

The Respondent stated that it was not aware of any DAC recordings. In any event, amongst other

concerns, it was not clear whether such alleged evidence, when taken with the other evidence adduced, could be expected to have affected the result of the arbitration.

Regarding the arbitration audio tapes, I referenced Allstate Insurance Company of Canada and N.I., (FSCO P07-00024, December 2, 2008), that for a transcript to form part of the appeal record, subsection 22(3) of the Insurance Act was mandatory (subject perhaps to exceptional or extraordinary circumstances) that an oath must be given before the adjudicator that the stenographer will report the evidence and proceedings faithfully. The Appellant submits that the reporter was not sworn and was not impartial, and that the integrity of the transcripts is in question and are not admissible. Based on the Appellant's submissions, there being no submission or evidence that the reporter had been sworn, I saw no basis for allowing the transcripts and/or the audio tapes as part of the appeal record.

Noting that at the Appellant's request I had adjourned the December 2, 2009 oral appeal hearing specifically to allow the Appellant to retain counsel, and given the terms of my adjournment order, I held that the September 21, 2010 appeal hearing would proceed. I further held that I would not reconsider my May 17, 2010 letter decision that set out, at length, the reasons I was not persuaded that the Appellant was entitled to an award of interim benefits.

My subsequent September 15, 2010 letter confirmed receipt of Dr. Petrella's September 14th fax that the Appellant's health was "very brittle" and that his father had passed away about a month ago, adding much stress to the Appellant's mental state. Dr. Petrella concluded that the Appellant "is not in a physical or mental state to undergo pressures from an appeal hearing at this time."

No alternative hearing dates were provided. Given that the appeal hearing was less than a week away, a short time frame was given for submissions on whether the adjournment should be allowed, and if so, how the appeal should proceed.

The Respondent requested that the appeal hearing proceed on the basis of the written submissions already received. In the alternative, if an oral hearing was required, the Respondent argued that it not be adjourned because (a) Dr. Petrella's note was insufficient to justify a further adjournment, (b) the adjournment request was not served on the Respondent, (c) the scheduled appeal hearing by telephone conference call did not impose any significant hardship or physical burden on the Appellant, and (d) no indication was given as to when, if ever, the Appellant would be able to participate in an oral hearing.

My September 16, 2010 letter decision noted that the present hearing date was set on consent. The initial hearing date was also set on consent and was adjourned at the Appellant's request to retain Mr. Di Prima. Ultimately, Mr. Di Prima was not retained by the Appellant and took no further part in this proceeding. I also noted the terms of my prior adjournment order, the Appellant's history of representation and that it was clear that the Appellant wished to put this matter on hold until he was able to secure legal representation in whom he had and would continue to have confidence and who would continue to agree to represent him.

I held that a party should have a reasonable opportunity to retain representation. Consistent with that, a proceeding cannot proceed indefinitely. In accordance with Rule 1 of the Code, parties are entitled to an expeditious resolution of the dispute.

The December 2, 2009 hearing had been specifically adjourned to allow the Appellant a reasonable opportunity to obtain new legal representation, but on terms to avoid a further delay of the proceeding in order to again find legal representation. In the nine months since the adjournment, the Appellant had not retained the counsel for whom the adjournment was allowed, had not been able to retain legal representation acceptable to him and gave no indication that he would shortly, or within any reasonable period of time, realistically be able to obtain such legal representation.

While noting my concern that Dr. Petrella was not only a medical practitioner but also a prior advocate for the Appellant, the Appellant's recent unfortunate loss of his father was an unforeseen and extraordinary circumstance and it would be unfair to require the Appellant to proceed with the September 21, 2010 hearing. Accordingly, I cancelled that hearing date.

I was not, however, persuaded that a new oral appeal hearing should be arranged, having no confidence that this matter would proceed at a new date. Rather, setting a new oral hearing date now, or at sometime in the future, would more likely than not, merely further delay this matter and add to legal expenses.

Rule 56.5 of the Code provides that an appeal may be decided on the record, by way of an oral or electronic hearing, or in any other manner the appellate officer finds appropriate. The criteria to consider in the exercise of this discretion are most importantly set out in Rule 1.1 of the Code, that one produce the most just, quickest and least expensive resolution of the dispute. Further, fairness dictates the right of a party to reasonably put forward one's argument and the right to reasonably respond to the argument of the opposing party.

I noted that between my May 17, 2010 letter decision and my requested submissions from the Appellant of August 17, 2010, the Appellant had sent seven unsolicited letters, totaling 52 pages of submissions, as well as several dozen pages of enclosures. This was but a minor part of the extensive written submissions the Appellant had filed in this matter, totaling approximately thirty separate letters. Further, notwithstanding Dr. Petrella's note that the Appellant's father had died about a month ago, the Appellant, within that period, had provided twenty pages of written argument in his August 17, 2010 submissions, without advising as to his father's death.

I was persuaded that the most just, fairest, quickest and least expensive way to proceed was on the basis of written submissions. I found that the Appellant had already had a fair opportunity to present his own case and to respond to the Respondent's position. However, as a party may have been relying on a final opportunity to make or clarify their argument, I allowed both parties until October 13, 2010 to serve and file any final written submissions. This specifically allowed the Appellant a longer and less stressful period to provide his final submissions, if any, in a format in which he had not exhibited any difficulty over the prior many months.

The Appellant provided a September 10, 2010 affidavit stating he no longer recognizes the Commission's authority, that the Commission has a conflict of interest, is clearly biased, has failed to address serious issues and concerns, is ill-prepared to deal with a case of this complexity or does not want to, has denied just and due process, that public history shows the Commission favouring the insurer in the majority of cases and that the Commission has addressed every concern of the Respondent but has only addressed a fraction of his concerns.

More specifically, the Appellant states that since 2003 in the opinion of (unnamed) "industry experts," a conflict of interest has existed between the Commission and the Respondent given their extreme close proximity in corporate offices with common entrance, washrooms, elevators and stairs. While the Respondent's head office may not be adjacent to the Commission, it has branches throughout Toronto. The Appellant also alleges that the actions of an arbitrator different from the hearing Arbitrator lead to his collapse, stroke and failure to thrive and placed his life in danger as he was medically unfit to attend the arbitration hearing. The Appellant also alleges inappropriate actions by a Commission case worker.

The Appellant further argues that the Commission's failure to order reinstatement of benefits was a gross injustice leaving him to "rot and deteriorate." He submits that the Commission has not held the Respondent accountable for its breaches and flagrant neglect of his legislated rights. The Appellant further argues that a level playing field does not exist.

The Appellant submits that he is at a tremendous disadvantage unless permitted to argue the totality of the issues from the very beginning. He argues that "[b]y law, I cannot be denied due process accordingly to my allegations, and, as such can have this matter addressed in court, in spite of your opinion." Further, the Appellant argues that the Director's Delegate has compromised the process, finding that the Arbitrator is perfect and does not err. The Appellant states that as he is not represented and, given his medical condition and myocardial infarctions, peremptory conditions cannot be imposed on him. The Appellant quotes Dr. Leroux that "[e]xtraordinary circumstances beyond my control" have existed since December 8, 2007.

The Appellant argues that the Commission has victimized him more than the accident and that all of his concerns have been ignored. Accordingly, the Appellant submits that the decisions of this Tribunal are null and void.

The Appellant states that no law firm will represent him at the Commission, but only in court. He has consulted various bodies and his understanding of the law, including the Canadian Charter of Rights and Freedoms, is that he has the right to pursue this matter in the provincial courts in Québec, Ontario or both, to be heard in its totality by twelve ordinary jurors to be allowed to consider all of the evidence. The Appellant states that he has been disadvantaged by the process at the Commission, "I cannot be disadvantaged in Ontario Court."

The Appellant does not accept that a Director's Delegate has no jurisdiction to forward this matter to a jury determination. He states that he does not want me to rule on this matter, no longer recognizing my authority and not believing that any ruling would be just. The Appellant asks that I refrain from writing him under any circumstance. He states that given no other option, he will seek the revocation of the Respondent's license and will go to the public domain. The Appellant further states he has referred this matter to the RCMP for investigation.

The Appellant reiterates these submissions in his October 13, 2010 letter only to the Respondent, the latter providing me a copy on October 25, 2010. I have also considered these submissions.

In response to my request for written submissions on the issue of bias, the Respondent cites Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, adopted in Persofsky and Liberty Mutual Insurance Company, (FSCO P00-00041, July 3, 2001). The Supreme Court of Canada stated that:

The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information, the test of "what would an informed person, viewing the matter realistically and practically—conclude?" There is no real difference between the expression found in the decided cases "reasonable apprehension of bias", "reasonable suspicion of bias" or "real likelihood of bias" but the grounds for the apprehension must be substantial.

The Respondent further cites Kahkesh and Lloyd's Non-Marine Underwriters, (OIC P-000378, August 19, 1992), where Director Sachs stated that "[b]ias on the part of an adjudicator against a party is a serious allegation. It should not be made lightly, nor as a catch-all ground for appeals." The Director cites Newfoundland Telephone Company Limited v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 that:

… The test for bias, and the reasonable apprehension of bias … is whether, taking all considerations into account, the arbitrator closed her mind to being persuaded, or prejudged the issues so as to preclude the acceptance of representations to the contrary and denied a party a fair hearing.

The Respondent submits that there is no reasonable apprehension of bias. The appeal was adjourned from November 30, 2009 to September 21, 2010 to allow the Appellant to retain counsel, and his numerous written submissions have been considered in the various motions he has brought. Regarding the alleged conflict of interest, the Respondent submits that the proximity of the two bodies does not, in itself, create a conflict of interest. Further, the Respondent states that while the Commission is located on Yonge Street in North York, the Respondent's head office is on Eglinton Avenue in Scarborough.

The Respondent argues that under section 281 of the Insurance Act, an insured person chooses the forum in which to resolve their dispute. Having elected to proceed with arbitration, the Appellant is no longer entitled to re-elect to transfer the matter to another forum. Doing so would unduly duplicate proceedings, lead to greater costs and raise the spectre of inconsistent results. If a withdrawal is permitted, the Arbitrator's decision should be considered final and the Appellant prohibited from reapplying to the Director for an appeal.

I am not persuaded that a conflict of interest exists between the Commission and the Respondent. I have no evidence of any proximity of corporate premises. In any event, it is not clear how two separate entities in the same multi-story office tower, by itself, results in a conflict of interest.

The Appellant has been given significant latitude in this matter. At certain times he has repeated the same motion. At other times, he has demanded the Commission not communicate with him. He has invested a representative with full authority, but then concurrently has written the Commission on his own behalf, contradicting his representative's position. Litigation is not a child's pick-up ball game. Neither party, insurer or insured, self-represented or otherwise, if unsuccessful in interim adjudicative proceedings, can simply pick up its metaphorical bat and ball and put a Commission proceeding on hold indefinitely until a forum more to one's liking is found.

Under subsection 281(1) of the Insurance Act, once mediation failed to resolve the issues in dispute between these parties, the Appellant had the choice to proceed to a court of competent jurisdiction, agree with the Respondent to submit the matter to private arbitration or refer the matter to this Commission. The Appellant chose to proceed to arbitration at the Commission.

Under section 283 of the Insurance Act, an appeal from an order of an arbitrator is to the Director. Under subsection 6(4) of the Insurance Act, the Director may delegate persons to hold hearings on his or her behalf and to exercise the powers and perform the duties of the Director relating to such hearings. The Appellant appealed to the Director and the appeal was delegated first to Delegate Makepeace, and then to myself.

Under section 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, a "tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes." The exercise of such powers to reasonably move a proceeding forward while allowing the parties a fair opportunity to present their positions and respond to the other side's arguments does not mean that I have closed my mind to being persuaded or prejudged the issues so as to preclude the acceptance of representations to the contrary, or deny a party a fair hearing. Further, the lack of success on a motion does not, by itself, establish bias.

Accordingly, I am not persuaded that the Appellant has established bias in this appeal proceeding. Nor am I persuaded that the Appellant, having chosen this Commission for resolution of his dispute and having not sought to withdraw his Notice of Appeal in accordance with Rule 70 of Code, can simply dismiss this Tribunal.

Further, notwithstanding the Appellant's insistence I not communicate with him further, I am sending him a copy of this decision. To render a decision and not provide a party with a copy would be fundamentally wrong. Given the prior uneven co-operation of Dr. Petrella and the lack of status or authorization of Dr. Petrella or Mr. Di Prima to accept service of documents, I am not persuaded that it would be appropriate to send this decision to them in lieu of the Appellant.

I thus turn to the substance of this appeal.

II. ANALYSIS

1. Non-Compliance with Sections 37 and 49

Arbitrator Feldman's August 19, 2005 preliminary issue decision found that the Respondent had

not complied with sections 37 (stoppage of benefits) and 49 (notice of right to dispute) of the

Schedule in failing to advise the Appellant about the dispute resolution process. As a consequence, Arbitrator Feldman held that the two-year limitation period had not begun to run and the Appellant was not barred from proceeding to have his application arbitrated on its merits.

Arbitrator Feldman found that the Respondent had complied with section 37 to that extent that it had advised the Appellant of his right to be assessed by a DAC, which the Appellant attended.

Arbitrator Feldman held that there was no express right in the Schedule to have benefits continue solely as a result of an insurer's breach of section 49. As adjudicators were to interpret, not rewrite legislation, Arbitrator Feldman denied the Appellant's request for an interim order that the Respondent pay him IRBs of $400 a week ongoing from October 9, 1997, plus any applicable interest, on the basis of its breach of sections 37 and 49.

The Appellant submits that the Respondent's unlawful treatment of his claim and its blatant breach and disregard of Rule 49 led to catastrophic consequences for him and his family. Had he been properly informed of his rights and recourse to the Commission, he would have taken immediate appropriate measures and not be in his present circumstances of penury. Although represented by counsel, only in 2003 was he informed of his rights through correspondence with the Honourable Tony Clement, Janet Ecker and Brenda Elliott.

The Appellant submits the Respondent has yet to provide him with written notice of his rights under sections 37 and 49. As his benefits were terminated prematurely without proper notice, the argued remedy is the automatic reinstatement of benefits. The Appellant submits that the Commission is a quasi-judicial body empowered to administer and enforce automobile legislation as well as other matters and that restitution "is at the sole authority of the Director's Delegate, and of his absolute discretion."

As an insurer's obligation to continue paying benefits is clearly and explicitly enunciated in section 37, by virtue of Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, and Sivaloganathan and Liberty Mutual Insurance Company, (FSCO A03-000317, September 8, 2003), the Appellant submits that he has "the right to entitlement of all benefits and the special award as requested by virtue of my application for arbitration."

Accordingly, the Appellant seeks (a) reinstatement of periodic benefits of at least $1,500 a month to supplement the $887 received from the Province of Québec, (b) payment of all arrears of benefits, calculated as exceeding $200,000, (c) retirement of his some $75,000 debt with Québec the Respondent allegedly agreed to pay, (d) payment of out-of-pocket expenses of $100,000, (e) payment of $25,000 owed to family and friends, (f) interest, and (g) a special award, in the adjudicator's discretion, for the ill done to him and his family, including $250,000 credited to his children for the loss of the family home, the actual loss being as much as $500,000.

The Appellant argues that the Arbitrator erred on a direct question of law in finding that his claimed $30,000 loss on the sale of his house was not compensable under the Schedule. The Appellant submits that $30,000 represented his initial economic loss and the further claim of $250,000 is for economic life-long loss compensable as a special award for incurred consequences, the loss of his home and his present situation resulting from the Respondent's failure to tell him about the dispute resolution process.

The Appellant submits that while some of these claims may be novel, a special award may exist to deal with, consider and/or explore such requests. The Appellant argues that the cases cited by the Respondent are not relevant as they are not as complex as his and involve different law. Further, the Appellant submits that he was bullied, pushed around, victimized and defrauded of six hundred thousand dollars in his tort action and he will not let this happen again.

The Appellant further argues that Arbitrator Feldman erred in stating that the Appellant's argument might have had greater force under a former version of the Schedule. The Appellant submits that as "injury" and "loss" are the same under any regime, the prior precedents should apply. The Appellant submits that, in any event, Arbitrator Feldman stated that one remedy of an insurer's breach of Rule 49 was to take that "into account in determining both entitlement to and quantum of interim benefits." The Appellant argues that the Arbitrator erred in this regard and in not paying attention to the Canadian Charter of Rights and Freedoms. The Appellant thus argues that "the totality of all matters have been compromised."

The Respondent responds, in part, that the Appellant has sought further mediation since the Arbitrator's October 27, 2006 decision, including medical expense claims and the loss on his home (June 6, 2006 Report of Mediator), NEBs of $180 a week ongoing from September 23, 1997 (May 24, 2007 Report of Mediator), various out-of-pocket expenses (September 12, 2007 Report of Mediator) and catastrophic impairment, caregiver benefits from May 13, 1997, physiotherapy, some $46,000 paid by the Government of Québec, visitor expenses ongoing from 1997 and cost of examination expenses (March 11, 2009 Report of Mediator).

The Respondent submits that the Appellant has not yet applied for arbitration with respect to any of these issues and, hence, none are properly before an adjudicator. Further, as the Appellant elected and received IRBs, he is not entitled to claim the alternative weekly caregiver benefits or NEBs. The Respondent cites Arbitrator Feldman's April 19, 2005 decision that the Appellant "has elected to claim income replacement benefits; accordingly, he acknowledges that he has no right to claim non-earner benefits or caregiver benefits and, on consent, withdraws from this application his claims for such benefits."

The Respondent further submits that claims for repayment of social assistance from the Province of Québec or payment of $200,000 to $500,000 for the loss of one's profession or home are not compensable under the Schedule.

In Sivaloganathan, a motion for interim benefits, the insurer was ordered to pay interim IRBs under subsection 279(4.1) of the Insurance Act on the basis of the insurer's failure to comply with section 37 of the Schedule, "pending the resolution of the parties' disputes in accordance with sections 279 to 283 of the Insurance Act and/or the relevant provisions of the Schedule." That decision was upheld in Sivaloganathan and Liberty Mutual Insurance Company, (FSCO P03-00035, September 23, 2004).

Sivaloganathan differs from this case where there has been a final arbitration determination of the parties' dispute in the Arbitrator's October 27, 2006 decision. Thus, my May 17, 2010 letter decision stated that:

1. Regarding Arbitrator Feldman's August 19, 2005 preliminary issue decision, as set out previously in my June 22, 2009 letter, Arbitrator Feldman, at pages nine and ten of his decision, specifically denied Mr. Galati's request for interim IRBs, stating that:

... there appear to be no cases (under either Bill 164 or Bill 59) where failing to receive a proper notice of stoppage was found to entitle an insured person to continued payments, except where the insured was deprived of his or her rights to be informed of and be assessed by a proper DAC... In the case of Mr. Galati, he was advised of his right to a DAC and underwent a disability DAC assessment. The insurer correctly continued to make payments until it received the DAC report. To this extent, Aviva complied with the provisions of section 37 of the Schedule. Where Aviva fell short was in failing to comply with section 49 (by not providing Mr. Galati with information about the dispute resolution process). There is no express right in the Schedule to have the payments continue solely as a result of a breach of section 49. [emphasis in the original]

Mr. Galati has not provided any case law for the proposition that breaches of sections 37 and 49 of the Schedule entitle an insured person to payment of benefits despite an adjudicative finding that an insured did not meet the legislative requirements of entitlement.

Subsequent to my May 17, 2010 letter decision, the Ontario Court of Appeal released its decision in Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457. The Court of Appeal cited the reasons of Gonthier J. in Smith that:

There was no proper refusal made and the limitation period did not begin to run. The appellant is not barred from bringing her action. However, I make no conclusion about the merits of her claim, which a trial judge must assess. [Emphasis added.]

The Court of Appeal continued:

9The inadequate notice did not automatically entitle the insured to payment of benefits. She was still required, as the court acknowledged, to prove her claim.

10That same reasoning applies to the facts of this case. The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given or a proper DAC assessment was carried out. The respondent was still required to prove that she was entitled to the continued payment of IRBs because of her continued substantial inability to perform the essential tasks of her employment ...

The Appellant's argument is precisely what the Ontario Court of Appeal rejected. I am bound by the Ontario Court of Appeal. Accordingly, this part of the Appellant's appeal is dismissed.

2. The Respondent's handling of this file

The Appellant alleges that the Respondent's disastrous handling of his file and its breaches of the Schedule led to his family home having to be sold at a substantial loss and the Appellant and his wife separating as it became intolerable to live with him due to his personality changes following the accident. Further, both of his sons became high school dropouts and his own political opportunities were lost. The Appellant holds the Respondent responsible and submits that it must be held accountable by the Commission and/or affiliated bodies. "[T]he remedy for these breaches must be absolute as per [the] Respondent's accountability thereof."

The Appellant submits that the Respondent admits that it lost his file, its November 26, 2001 letter confirming the file "fell through the cracks." Arbitrator Feldman states that having lost the file sometime between 1998 and 2001, the Respondent was still unable to locate it. The Appellant submits that this contradicts the Arbitrator's statement that he did not seek benefits after September 22, 1997. The Appellant further states that some twelve accident benefits representatives have had carriage of this file.

The Appellant also argues that the Respondent has not provided all necessary and legislated information and documentation, nor has it complied with its legislative responsibility to be forthright. The Appellant submits that in addition to lack of adherence to sections 37 and 49 of the Schedule, he has been denied the legislated medical evaluation at 104 weeks of the accident, numerous requests for interim benefits, the audio and video recordings of all three DACs and a legislated catastrophic impairment assessment.

Further, the Appellant submits the Respondent has consistently denied requests of all kinds, including treatment plans and an attendant to accompany him from Montréal to the Toronto hearing, for a plethora of unacceptable reasons, and has ignored the medical findings of Dr. G.D. Gale of the Rothbart Clinic and a plethora of other medical reports and documentation. In addition, the Respondent did not agree to the Appellant's request for neutral evaluation in the arbitration process. The Appellant submits that the Respondent does not seek the truth.

The Appellant states that he understands that for a proper determination to be made, the OHIP records of a claimant must go back one year before the accident. The Appellant submits that the Ontario Ministry of Health advises they are no longer able to provide records for May 13, 1996 to May 13, 1997, although in 2004 he signed authorizations prepared by the Respondent's counsel to obtain the decoded OHIP records from May 13, 1996. This, the Appellant submits, is a consequence of the Respondent's blatant disregard of sections 37 and 49 of the Schedule.

The Appellant submits that the obstacles placed by the Respondent are illegal and have led to the further deterioration of his condition. The Appellant states that as ruled by the Supreme Court of Canada in Smith, cited above, the main objective of automobile insurance is protection of the consumer / victim. Accordingly, the Respondent must be held accountable and reinstate benefits.

The Appellant further argues that he had a binding agreement with the Respondent in 2004 that they would continue his benefits once the government recognized his disability, which Québec has now done. Because of the Respondent's continued wrongful denial of benefits, the Appellant submits he became a ward of the government. While there is not a section in the Schedule entitled "Reimbursement to the Government of Québec," the Appellant states it is "incorporated within the reasoning, meanings, and in the spirit of the legislation, contained in many sections."

The Appellant submits that when one sustains injuries following an accident, the legislation obliges an insurer to return the victim's condition medically to as close as possible to his or her condition prior to the accident. The Appellant argues that the Respondent has failed the legislation in this regard. The Appellant requests a ruling that the Respondent, in part:

1. be totally co-operative in all respects and grant his claim the seriousness it merits;

2. provide immediate written notification under Rule 49 of his legislated rights;

3. provide a comprehensive catastrophic assessment at a centre in Montréal;

4. provide the legislated 104-week disability testing due May 1999;

5. have its representative swear an affidavit as she has full knowledge of these matters;

6. reimburse the Government of Québec for all benefits the latter has paid; and,

7. cease any references that would deem him to be an "uneducated ignoramus."

The Appellant submits that it "is respectfully submitted that the Director's Delegate has the authority to rule on all matters contained herein at his sole discretion."

Delegate Makepeace, in her April 2, 2007 letter in this matter, determined that catastrophic impairment and insurer medical examinations in that regard were not in dispute in this appeal and would not be considered in this appeal. My May 17, 2010 letter decision held that:

1. This appeal under subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I. 8, is restricted to questions of alleged errors of law regarding Arbitrator Sampliner's October 27, 2006 Order. Contrary to Mr. Galati's May 7, 2010 submissions, this appellate body has no jurisdiction to compensate all losses that Mr. Galati argues flow from his May 13, 1997 accident. The Schedule provides limited, statutory benefits to victims of motor vehicle accidents from an insured person's first party insurer. The Schedule does not provide the same remedies as a tort claim against negligent third parties. The Schedule does not provide for full monetary compensation to return an insured person, as argued by Mr. Galati, "to as close as possible to his/her former self." The Schedule does not provide complete compensation for the general "ill done" to an insured person or their family.

2. A special award, under subsection 282(10) of the Insurance Act, is premised on an entitlement to benefits under the Schedule and the unreasonable delay or withholding of such benefits. A special award is not intended to provide additional compensation for all possible claims arising from a motor vehicle accident that are not provided for in the Schedule.

3. A Commission adjudicator does not have jurisdiction to award damages for losses on the sale of one's home due to financial hardship or the loss of anticipated future profit, reimburse car property damage or compensate for the loss of one's profession (other than what is allowed under Part II of the Schedule) or the loss of one's political career. A Commission adjudicator does not have jurisdiction to award general damages for pain and suffering or loss of enjoyment of life. A Commission adjudicator does not have jurisdiction to award family members damages for pecuniary loss under the Family Law Act, R.S.O. 1990, c. F.3. A Commission adjudicator does not have jurisdiction to order repayment of loans to family and friends or repayment of social benefits payments provided by the Province of Québec.

4. Regarding the benefit claims that are the subject of Mr. Galati's mediations subsequent to Arbitrator Sampliner's decision, Mr. Galati's remedy is to proceed to arbitration on those claims and seek in that forum, before an arbitrator, any interim order for benefits regarding his new claims that were not determined by Arbitrator Sampliner.

Under subsection 283(5) of the Insurance Act, I have the power to "confirm, vary or rescind the order appealed from or substitute [my] order for that of the arbitrator." In Smith, the Supreme Court of Canada enunciated that "[t]here is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance." I find that neither the Insurance Act or Smith empower me, as Director's Delegate, to remedy all of the submitted shortcomings of the Respondent in the handling of this file or to make the declarations the Appellant requests.

Rather, an adjudicator's powers under subsection 279(1) of the Insurance Act are restricted to determining entitlement to and the quantum of accident benefits under the Schedule. An arbitrator's powers under subsection 282(10) of the Insurance Act are restricted to awarding a lump sum special award, where the arbitrator finds that an insurer has unreasonably withheld or delayed payments, up to 50 per cent of the amount to which the insured was entitled at the time of the award and the applicable interest.

The Arbitrator awarded the Appellant $2,048, plus reimbursement for pain and sleep medications he had incurred since the accident. In addressing the question of a special award, the Arbitrator stated that the Appellant did "not allege that [the Respondent's] decision to terminate his accident benefits was unreasonable or provide a factual basis for the argument."

As noted above, based on the Appellant's submissions, I did not include the arbitration transcripts as part of the appeal record. Having no evidence of the oral testimony at arbitration, I have no basis upon which to overturn the special award portion of the Arbitrator's decision.

Regarding the Appellant's more specific argument that the pre-accident OHIP records should have been before the Arbitrator to show an absence of pre-accident complaints, this appears to be of little relevance as the Arbitrator's decision did not note causation, but rather the Appellant's exaggeration of his symptoms, as a concern. As to the alleged 2004 binding agreement between the Appellant and the Respondent, I have no evidence in this regard. If the Appellant had wished the Respondent's representative to testify, his opportunity to do so was at arbitration.

3. The Arbitration Hearing should have been adjourned due to the Appellant's medical condition and other reasons, and a just and valid arbitration did not occur

The Appellant submits that he collapsed during the arbitration hearing and was taken to hospital by ambulance. Whereas the hearing should have been adjourned as his life was in danger, the arbitration proceeded in his absence. The Appellant argues that the Commission's lack of a response in this and other respects contributed to his subsequent heart attacks.

The Appellant argues that, in any event, he was not fit to attend the July 2006 arbitration hearing, nor was he fit to testify, being confused and distraught at times due to his medication, extreme tiredness, constant pain and the traumatic experience. The Appellant submits that he objected to being called as a witness, but that this is omitted from the transcript.

The Appellant also argues that the Arbitrator was fully aware of the Respondent's failure to adhere to sections 37 and 49 of the Schedule and to provide a legislated medical evaluation at 104 weeks of the accident, that numerous requests for payment of interim benefits and treatment plans had been denied as had requests for the audio and video recordings of the DACs, a neutral evaluation, polygraph testing and a legislated catastrophic impairment assessment. The Appellant further submits that he taped certain conversations with the Respondent's representatives that were to be heard at the arbitration, but unfortunately he could not locate them.

Thus, the Appellant argues that the arbitration hearing should also have been postponed to allow a catastrophic impairment evaluation and to hear the testimony of Dr. Gale.

The Respondent submits that neither the Appellant nor his counsel stated at the hearing that the Appellant was unfit to attend, neither requested an adjournment, neither provided a report from a doctor that the Appellant was unfit to attend and the Appellant did not object to testifying. The Appellant's "collapse" was on the last day of the arbitration following the completion of evidence and of argument. The Respondent submits that this "collapse" was feigned.

The Appellant provided no evidence that he or his representative requested that the arbitration hearing be adjourned. The Scarborough Hospital – Grace Campus confirms a visit by the Appellant on July 13, 2006, the last day of the arbitration hearing, at 12:28 p.m. The noted reason for the visit is "chronic back pain." The diagnosis provided is "failure to thrive" and chronic pain. The body of the hospital record, much of which is illegible, states "back pain not new. Occasionally acts up."

The best information I have is that all of the oral evidence, including that of the Appellant, was completed on July 12, 2006 and that July 13, 2006 was devoted to oral submissions by both counsel, the Appellant being represented at the arbitration hearing. At some point, during or after oral submissions, the Appellant was taken to hospital. I have no evidence of any request having been made by the Appellant's counsel that the submissions be adjourned. I have no basis for finding that the Arbitrator's failure to adjourn the matter on his own initiative denied the Appellant a fair hearing and justifies overturning the Arbitrator's decision.

The Appellant further submits that the Arbitrator's decision did not reflect the actual arbitration hearing and the transcripts do not reflect the proceeding accurately or entirely. The Appellant alleges that a witness, Mr. F. Monardo, agrees. The Appellant submits that the vast majority believe he has been treated unjustly. The Appellant argues that the integrity of the Commission process has been breached and violated by the Respondent and the totality of the matter before the Commission since 2003 has been faulted and compromised.

The Appellant submits that without full disclosure by the Respondent of all of the facts and compliance with the legislation, there can be no proper determination and this was not accomplished at the July 2006 hearing. The Appellant thus requires production and consideration of all evidence that is new, missing, omitted or was not considered in the 2006 arbitration, specifically any medical reports, OHIP summary records, copies of all tests performed and imaging ongoing from May 13, 1996, Dr. Schapira's report, the audiotapes from the arbitration hearing, the audio and video records of all three DACS and the audio tape of a proceeding between the Appellant and the Respondent's investigator that the investigator allegedly assured the Appellant's prior lawyer would be provided.

The Appellant submits that "I fully agree that the Appeal Adjudicator's role is not to 'second guess' the hearing arbitrator, but rather to focus on errors of law, errors of fact, and combined errors of law and fact, which when numerous and contradictory, establish a wrongful decision." The Appellant further states that "[a]t his sole discretion, an appeals adjudicator will/can determine the existence of errors of law and fact."

The Respondent argues that the Appellant is seeking a rehearing of the entire arbitration, endeavouring to re-arbitrate the factual issues by way of appeal. The Respondent submits that it provided the Appellant with copies of the court reporter's audiotapes by letter dated May 22, 2009. The tapes are not a recording of the proceeding but rather the voice recording of the reporter speaking into her dictation machine. The Respondent states that it is not aware of any audio and video records of the DACS and that all surveillance tapes were provided to the Appellant prior to the arbitration hearing.

As noted, the Respondent's May 22, 2009 letter to Dr. Petrella enclosed seven CD of the reporter's tapes from the arbitration held July 11 to 13, 2006. The first hearing date of July 10, 2006 was devoted to settlement discussions and, therefore, was not recorded. Under the Code, it is not mandatory that adjudicative proceedings at the Commission be recorded. As set out in Rule 74 of the Code, the Dispute Resolution Group of the Commission does not provide reporting services for a hearing. Parties who wish a record of the proceedings must make their own arrangements for the attendance of a reporting service and pay for the service.

As also noted above, I did not accept the transcript of the hearing as part of the appeal record as the court reporter was not sworn in by the Arbitrator, contrary to subsection 22(3) of the Insurance Act. However, as court reporters are not mandatory in Commission proceedings, I am not persuaded that the absence of an accepted transcript is a basis for overturning the Arbitrator's decision.

Given the restriction under subsection 283(1) of the Insurance Act of appeals from the order of an arbitrator to questions of law, I am not persuaded by the Appellant's submission that an appeals adjudicator has sole discretion to determine the existence of errors of fact. In AXA Insurance Company and Kernaghan, (FSCO P07-00018, February 4, 2008), I stated that:

The restriction of appeals to matters of law reflects, in my view, legislative recognition that judicial resources are limited, that deference should be given to the skills and expertise of first-level adjudicators and that the need for a speedy, simplified and inexpensive dispute resolution system necessitates a narrowed basis for appeal. This 1996 legislative change confirms that arbitrations are not dress rehearsals; appeals are not a "second kick at the can."

I find that the Appellant, contrary to his submissions, is indeed asking that I "second guess" the hearing arbitrator. Given the restrictive purpose of appeals, I dismiss this aspect of the appeal.

4. Dr. Schapira's report and the Role of DACs

A paramount and continuing argument by the Appellant is Dr. Schapira's DAC report. The Appellant submits that this report prompted the Respondent to terminate his benefits and was critically important. The Appellant alleges that the Arbitrator ordered production of the report, but later, when the Appellant himself brought this to the Arbitrator's attention, the Arbitrator was unaware of his order. The Appellant states that this is omitted from the transcript.

The Appellant submits that a more proper adjudicative determination would have been realized if Dr. Schapira's report had been in evidence. Further, the Appellant argues that Dr. Schapira should have been called to testify. The Appellant submits that the illegal and disrespectful failure of both counsel to comply with the Arbitrator's alleged order is contempt and an obstruction of justice, and must be of grave concern to the Commission.

The Appellant, however, also argues that Dr. Schapira's report was erroneous, faulty and improper. Thus, the Appellant submits that the two following DAC reports that relied on Dr. Schapira were also improper. The Appellant further states that he understood that the DAC doctors would resolve his injuries. Citing the Hippocratic Oath, the Appellant submits that the DACs were obligated to immediately address his injuries and operate on the fracture that was evident. Further MRI imaging should also have been ordered in light of his grave pain, as well as investigation of his severe headaches. Rather, the Appellant submits that the DAC reports discredited his injuries. The Appellant states that this matter is before The College of Physicians and Surgeons of Ontario.

In my May 17, 2010 letter decision, I held that:

5. Contrary to Mr. Galati's May 7, 2010 submissions, the duty of Designated Assessment Centre ("DAC") medical practitioners is not to operate on or cure the insured person. The duties and powers of DAC practitioners, under the Schedule, are limited to providing opinions within their area of expertise on the questions set out in the Schedule.

6. Arbitrator Sampliner does not mention Dr. Schapira in his decision. It is difficult to see how the alleged failure of both counsel (including Mr. Galati's own representative) to put before the Arbitrator a report that Mr. Galati says was both contrary to his own case and, in addition, erroneous, constitutes an error of law warranting rescinding the Arbitrator's order and awarding Mr. Galati the benefits he seeks.

I am not persuaded that this ground of appeal establishes an error in law.

5. Representation at Arbitration

The Appellant submits that his counsel at the arbitration hearing, who was referred to him by the Law Society of Upper Canada, was upset that the Appellant did not accept the Respondent's final offer and, as a result, represented his case poorly. The Appellant submits that he was denied a postponement by the Arbitrator due to the failings of his counsel.

The Appellant maintains that his counsel failed, contrary to his instructions and his loud objections during the hearing (that the Appellant states are omitted from the transcript), to produce medical and lay witnesses on his behalf. These allegedly included Dr. Gale, whom the Appellant says was only a few blocks away and who said he would come, and four witnesses as to relevant real estate market conditions in relation to the Appellant's IRB claim.

The Appellant also alleges that he had two copies of Dr. Schapira's report, one remaining in Montréal and one that he gave to his counsel, notwithstanding which the document was not entered into evidence. The Appellant further submits that his counsel was unresponsive to the Scarborough Grace Hospital allegedly sending a social worker to see him. The Appellant states that this matter has been put before the Law Society's investigations branch. The Appellant's letter of January 6, 2009 states that "I have had four (4) lawyers, and other related professionals, who have all misrepresented my case."

The Appellant submits that the Arbitrator should have ordered his counsel to call Dr. Gale or adjourn the arbitration. The Respondent submits that the Appellant did not object during the arbitration hearing to his lawyer's failure to call any witnesses.

My May 17, 2010 letter decision held that the Appellant "argues that his counsel did not properly advance his case. The remedy for such allegations lies outside this forum." I see no basis for overturning the Arbitrator's decision on the argued basis that the Arbitrator, whom the Appellant himself acknowledges should be impartial, should have taken over carriage of the Appellant's case from the Appellant's own lawyer, specifically in calling witnesses.

6. Reverse Onus / Bias

The Appellant submits that his earlier counsel argued that the Appellant had basically nothing to prove as the facts already existed before the adjudicator. The Appellant argues that no rebuttal has been given by the Respondent or by the Arbitrator to this statement. The Appellant also alleges that the arbitration started on a foul note, that the Arbitrator wanted this matter to settle, which greatly surprised the Appellant's cousin who was present at the hearing.

The Appellant argues that bias exists when the Arbitrator recites all of the Respondent's evidence but not his own. Accordingly, the Appellant submits that the arbitration hearing was compromised, of no consequence, non-proper and a non-event.

I agree with the Respondent that the Appellant had the onus to establish his entitlement to the benefits claimed on a balance of probabilities. I am not persuaded that the Appellant's unsubstantiated and hearsay allegations are a basis for finding the Arbitrator was biased. While the Arbitrator did not recite all the Appellant's or the Respondent's evidence, I am persuaded that he addressed the key aspects of the Appellant's case, including the Appellant's oral evidence and the documentary evidence of Dr. Gale and Dr. Jarzem.

7. Errors of fact and failure to consider all the evidence regarding IRBs

The Appellant submits that in addition to errors of law and not considering a plethora of case

law, the Arbitrator badly interpreted the evidence and that the Arbitrator's brief (sixteen page) decision did not include crucial evidence, omitted important details, inadequately addressed the documentation and made numerous errors of fact. The Appellant specifically submits that the "Arbitrator fails in the interpretation of the facts, and makes little or no mention of actual events, facts of relevance, mitigating circumstances, the legislative failings of Aviva Canada Inc., my plight and that of my children, all contrary to case law, in these matters."

The Appellant argues that his medical file contained clear, concise, irrefutable objective clinical medical evidence, identifying specifically Dr. Gale, Dr. Jarzem, Dr. Stoddard, Dr. Chan, Dr. Green (his personal physician who stated that the Appellant did not have any of the injuries or disabilities prior to the May 13, 1997 accident), Dr. Subak, Dr. De Luca and Dr. Robillard, Humber Memorial Emergency Room, Columbia Rexdale Physiotherapy & Community Clinic, Humber Physiotherapy Clinic, Dixon Rehab Centre and Cabrini Physiotherapy Clinic.

The Appellant submits that this evidence contradicts the Arbitrator's statement that there was scant reliable evidence. Further, the Appellant submits that the Arbitrator did not pay proper attention to the official recognition by the Province of Québec of his condition, disability and impairment.

The Appellant provides a paragraph by paragraph critique of the Arbitrator's decision, citing the following alleged errors, amongst others:

(a) dismissing/refuting/rejecting/casting admissibility and reliability factors on the reports of Drs. Gale and Jarzem and missing numerous pages of the latter's clinical notes and testing;

(b) finding there was no evidence the Appellant had sought any accident benefits from the fall of 1997 to the fall of 2003;

(c) finding the Appellant resumed working shorter hours at his real estate job shortly after the accident without noting his treatment, work limitations and subsequent deterioration;

(d) not mentioning that the Appellant was obliged to sell the family home;

(e) erring regarding the Appellant living in a subsidized apartment;

(f) failing to detail all of the Appellant's impairments;

(g) erring in stating that the Appellant only attended the Rothbart Clinic from 1998 to 2000, whereas he was still attending the Clinic;

(h) finding that the Appellant testified that his post-accident work ability was "1/10 of 1 per cent;"

(i) taking out of context the statement from the Rothbart Clinic (that, in the Appellant's submission, did not provide long-lasting benefits) that he was working at 60% to 70%;

(j) affording, contrary to unidentified case law, undue importance to surveillance showing the Appellant, in part, bending, reaching, squatting and cleaning his car. The Appellant submits that the surveillance merely showed he could move on certain days; it did not show strenuous activity such as heavy lifting, garden ploughing, performing gainful employment or driving thousands of miles as he did pre-accident. Further, the Appellant submits that the Arbitrator erred in not noting that the surveillance occurred when the Appellant was resting, getting excellent care from his family, had been just administered nerve blocks and was attending mild physiotherapy and massage therapy;

(k) finding that the Appellant's evidence was exaggerated contrary to nine years of consistent and objective medical evidence, "as reported and diagnosed by twenty-three doctors, two chiropractors and imaging labs."

(l) failing to find that DAC reports have little value, citing Thiruchelvan and AXA Insurance (Canada), (FSCO A03-000056, August 26, 2003) and Sivaloganathan and Liberty Mutual Insurance Company, (FSCO A03-000317, July 4, 2003); and,

(m) failing to note that the Appellant's pain was excruciating, he was on morphine, his condition had deteriorated and his post-accident income had decreased.

The Appellant further submits that the Arbitrator failed to note that in years prior to the accident he had made over $100,000 annually. The Appellant argues that it is common knowledge that in Toronto and in Ontario the housing market bottomed out in late 1997 or early 1998 and from about 1998 and onwards, home sales rebounded significantly.

The Appellant argues that between 1998 and 2002 he was able to work only with multiple sessions of nerve block injections, physiotherapy, attendance at a pain management clinic and a plethora of medication, including morphine, coupled with strong market conditions, an extensive portfolio of pre-accident home listings and not having to do very much, the broker he employed performing most of the leg work. Nor, it is argued, did the Arbitrator take into consideration that the Appellant did not earn money for many months, being continually in hospital emergency rooms and suffering from depression.

The Appellant submits that the Arbitrator erred in not finding that the Appellant should have been earning well over $100,000 post-accident and probably $150,000 to $200,000 as were many of his colleagues. The Appellant argues that had the Arbitrator connected all of the facts and fully read all the documentation, he would not have stated that "Mr. Galati's problems are just bending to measure homes and also difficulty at reaching." Rather, the Appellant submits that numerous doctors have attested to his chronic, permanent disability and catastrophic impairment.

The Appellant states that the Arbitrator noted his "small fracture," and that a "2003 CT scan determined that Mr. Galati had a small bony growth at the L1-L2 level, and an un-fused corner fracture at the L2 vertebrae with mild disc bulges throughout the lumbar spine area." The Appellant submits that these injuries can produce excruciating pain and life-altering conditions leading to catastrophic impairment. The Appellant submits that it is universally accepted that pain is a disease and that the Arbitrator accepted that the Appellant suffered pain.

The Respondent submits that the Arbitrator weighed all of the evidence and found that the Appellant had not met his onus with respect to the benefits claimed, except for certain medical expenses. Regarding IRBs, the Respondent argues that the Appellant did not establish a substantial inability to perform his essential tasks as a real estate sales person and office manager after September 22, 1997. Rather, the Arbitrator found that the Appellant exaggerated his pain and disability and that his evidence was not reliable except where it was undisputed. The Respondent submits that the Appellant has failed to establish that the Arbitrator made an error in law.

The Respondent notes that the Appellant's family doctor, Dr. Green, referred the Appellant to Dr. Mossanen. The latter's June 13, 1997 report states that the Appellant "sustained a mild diffused myofascial syndrome, which is being aggravated by anxiety. He has never had an accident before, so this has been rather taxing on his mind." Dr. Mossanen's July 15, 1997 report to Dr. Green states that the Appellant "has improved a great deal," that he has minor low back strain and has now started back to work at least three to four hours a day.

Dr. Green also referred the Appellant to Dr. Weinberg, an orthopaedic surgeon. Dr. Weinberg's September 19, 1997 report states that the Appellant "appears to have residual soft tissue irritation." On July 21, 1999, the Appellant was again assessed by Dr. Weinberg at Dr. Green's request. Dr. Weinberg's report states, in part, "[t]here does not appear to be any structural problem and he has some ongoing soft tissue irritation."

The Respondent argues that there were inconsistencies in the Appellant's evidence at arbitration. While the Appellant testified he always wore a corset and back brace prescribed by Dr. Green, same are not referenced in any medical report between 1997 and 2001. While the Appellant testified he had been using crutches since the accident, the use of crutches is not noted in any medical report in the same period, nor are they seen in surveillance conducted on eight separate dates in 2004, although they are subsequently seen in July 2005 surveillance.

The Supreme Court of Canada, in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, stated that "an appeal is not a retrial of a case." The Court quoted with approval Underwood v. Ocean City Realty Ltd. (1987), 1987 CanLII 2733 (BC CA), 12 B.C.L.R. (2d) 199 (C.A.), that:

The appellate court must not retry a case and must not substitute its view for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

The Ontario Court of Appeal, in Rothwell v. Raes (1990), 2 O.R. 332, also held that it is not for an appellate level "to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony." Subsection 283(5) of the Insurance Act allows an appellate officer to vary the arbitrator's order appealed from or substitute his or her order for that of the arbitrator. There is no provision for the appellate officer varying or substituting his or her findings of fact for that of the arbitrator.

Delegate Makepeace, in her letter in this appeal proceeding of April 2, 2007, stated that:

Subsection 283(1) of the Insurance Act limits appeals to questions of law. Generally speaking, questions of law include questions about interpretation of the Insurance Act and the Statutory Accident Benefits Schedules, or about fair procedure or the Arbitrator's authority. Disagreements about the evidence or the factual conclusions drawn from the evidence are generally not questions of law, unless there was no evidence to support the Arbitrator's findings of fact or the arbitrator made a serious error in his treatment of the evidence.

As has been stated in many appeal decisions, even before the "question of law" restriction was added to the Insurance Act in 1996, an arbitrator's assessment of the evidence and findings of fact deserve deference because the arbitrator had the opportunity to hear and observe the witnesses and to consider all the evidence in its entirety. Appeals, in contrast, are limited to submissions, without new evidence. An appeal is not a re-hearing and it is not the role of an appeal adjudicator to second-guess the arbitrator's weighing of the evidence.

Delegate McMahon, in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26 2003), distinguished between a finding of fact made in the complete absence of supporting evidence, and a finding of fact made with insufficient evidence. He stated that while in "the first case, the error is properly characterized as an error of law, and hence reviewable . . . [in] the second, it is no more than an error of fact, that is not reviewable."

The Ontario Divisional Court, in State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099, stated that "[n]ot reciting all of the evidence does not mean the arbitrator failed to consider it." Further, in F.H. and McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, the Supreme Court of Canada stated that "[n]or are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been."

It is correct that the Arbitrator did not mention all of the medical practitioners noted by the Appellant. It is also correct that the Arbitrator did not mention the opinions of medical practitioners upon whom the Respondent relied. Dr. Hershberg, a psychiatrist, in his September 10, 1997 DAC report, states that the Appellant was back at work, attempting to sell his two new listings over the past month and that neither the clinical interview nor the documentary file review indicated any significant behavioural, emotional or cognitive deficits. Ms. Nguyen's Functional Capacity Evaluation DAC assessment dated October 6, 1997 states that on assessment, the Appellant did not present with any substantial physical restrictions or limitations. Neither of these medical practitioners is mentioned by the Arbitrator.

Further, the case law cited by the Appellant does not stand for the proposition that all DAC medical reports are faulty and must be rejected out-of-hand. Thiruchelvan critiqued a specific DAC medical report, in part, for taking the role of an advocate. Sivaloganathan held that an insurer is not bound by a DAC determination that an insured was substantially unable to perform the essential duties of her pre-accident employment in respect of IRB entitlement after the passage of the 104 weeks of disability, as provided in paragraph 5(2)(b) of the Schedule.

I am not persuaded that there was a complete absence of supporting evidence for the Arbitrator's IRB entitlement decision. As noted, some of the Appellant's treating doctors diagnosed a mild soft tissue injury or residual irritation. Arbitrator Makepeace, as she was then, stated in Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, September 29, 1997), that "[p]ain on its own is not compensable in the statutory accident benefit scheme." She further stated that "where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured's credibility becomes important."

The Arbitrator did not find the Appellant credible. The Appellant's claim of continued catastrophic post-accident disability from performing a job the Arbitrator found was 70% sedentary telephone and administrative work, with flexibility to work at home, did not correspond with the Appellant's declared post-accident income. The Appellant's testimony that he needed to wear a steel back brace or corset most days and use crutches to walk did not correspond with the recommendations of health care experts. The Appellant's explanation he was feeling better in 2004, hence his activities shown on surveillance, did not correspond with his 2004 application for benefits in Québec claiming that he suffered a severe work disability.

The disability test under the Schedule is not loss of earning capacity. Rather, the pre-104 week disability test is substantial inability to perform the essential tasks of one's employment. The exhibit evidence shows the Appellant receiving, several years before the 1997 accident, a 1987 T-4 of $101,855.66 and a 1989 T-4 of $101,562.77. However, the Appellant's declared income in each year between 1990 and 1995 (there being no evidence of a housing recession in Ontario for this entire period) was less than what he earned post-accident in 1998 ($39,213) and 1999 ($52,585). The Appellant also netted $30,819 in 2000. I am not persuaded that the Arbitrator's finding that the Appellant did not meet the IRB test should be overturned.

8. Post-104 week complete inability test

Subsection 5(2)(b) of the Schedule provides that for any period longer than 104 weeks of disability, IRBs are payable if the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. The Appellant submits that he was not informed of this requirement by the Respondent and, therefore, under the principle of consumer protection, he cannot be penalized for earning income to support his family and meet his obligations, as best as possible, under the circumstances imposed by the Respondent. In any event, the Appellant relies on a December 20, 2006 disability certificate of Dr. Jarzem.

I am not persuaded that the consumer protection principle allows the subsection 5(2)(b) disability tests to be disregarded. Further, Dr. Jarzem's December 20, 2006 report is subsequent to the Arbitrator's October 27, 2006 decision. Following Budd, I am not persuaded otherwise than that with due diligence, such a report could have been adduced at arbitration.

Section 11 of the Schedule provides that a person receiving IRBs may return to or start an employment at any time during the 104 weeks following the onset of disability in respect of which the benefit is paid without affecting his or her entitlement to resume receiving benefits if, as a result of the accident, he or she is unable to continue the employment.

The Appellant submits that his disability commenced May 13, 1997. The Appellant does not argue, nor does he provide any case law or statutory support that an insured person may return to work for several years after the end of the prescribed 104 weeks, but then later reapply after not meeting the requisite disability tests for many years. This aspect of this appeal is dismissed.

9. Housekeeping

The Appellant submits that he has provided all parties and the Commission with all relevant details and has established his housekeeping entitlement. The Appellant argues that "[t]he bar cannot be placed so high as to it then being unreasonable." The Appellant argues that he has disability certificates from Dr. Green, Dr. Morton, D.C., Dr. Gale and Dr. Jarzem entered as exhibits. The Appellant states that "I claimed $15,000 which I owe to my parents for the provision of an apartment, cooking, cleaning and attendant care expenses."

The Respondent submits that the Arbitrator found that the Appellant:

… did not submit a health expert's recommendation stating that he suffered a substantial inability conducting his essential housekeeping duties or that he required personal assistance as a result of his accident-related injuries. [The Appellant] did not submit statements setting out the name and address of his housekeeper or attendant provider, the dates of services with time periods, types of service provided, hourly rate and proof of any payments to or agreement he made with the service provider.

Subsection 22(1) of the Schedule provides that the insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services. The insured person must have sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

Contrary to the Arbitrator's finding, there were disability certificates in evidence, including those of Dr. Green and Dr. Morton, that the Appellant suffered substantial inability from performing pre-accident housekeeping and/or home maintenance activities. A June 15, 1998 report of Dr. Gale states that the Appellant cannot shovel snow, but still cuts the lawn, but more slowly and does less housework now. Dr. Gale's April 8 and August 4, 1999 reports also list domestic limitations, now including cutting the grass. Dr. Jarzem's reports address disability more generally.

However, I do not see that the Arbitrator erred in finding that the Appellant failed to submit statements setting out the details of any housekeeping services allegedly provided, specifically as to what expenses were said to be incurred. Further, the Appellant's appeal submissions do not distinguish between what is encompassed in subsection 22(1), and paying rent or allegedly receiving attendant care services, that are not covered by that provision. Attendant care benefits are specifically dealt with in section 16 of the Schedule, which was not in issue before the Arbitrator.

Accordingly, I am not persuaded that this housekeeping ground of appeal establishes an error in law.

10. Medical and Rehabilitation Benefits

The Appellant submits that the Arbitrator's medical and rehabilitation determinations are fraught with legal problems. The Arbitrator's references only to "mild pain" are unreasonable and an error in law running contrary to all of the medical evidence, including medical imaging, nerve blocks and the prescriptions for morphine and bathtub area supporting bars.

The Appellant further submits that the Arbitrator erred in saying that a Dr. Ouelette was his family physician when he was an emergency service doctor. The Arbitrator also erred in finding the Appellant did not own a vehicle when he did, but it was in storage. The Arbitrator also erred in stating that he could not find a physiotherapy treatment plan. The Appellant did not see a problem regarding the authenticity of a handwritten statement concerning a pelvic traction belt as it was signed by the attending physician on the physician's prescription form. Further, it was unreasonable to be denied reimbursement of taxi expenses when the Appellant had "spent many hundreds of dollars for taxis since May 13, 1997 for which I forgot to ask a receipt."

The Appellant also argues that the Arbitrator erred in failing to award him future medical and rehabilitation expenses, as his need in this respect is now, as established by nine years of continuous treatment.

Under section 14 of the Schedule, the insurer shall pay for all reasonable and necessary medical expenses incurred by or on behalf of an insured person as a result of an accident. Unlike a tort claim, the Schedule does not provide, at an arbitration hearing, compensation for all expenses that may arise any time in the future. I am thus not persuaded that the Arbitrator erred in law in denying the Appellant's "claim for an undetermined amount of future treatment."

As noted, subsection 283(1) of the Insurance Act limits appeals from an arbitrator's order to questions of law. Whether Dr. Ouelette was a family doctor or the Appellant's vehicle was in storage are findings of fact. The question before me is whether there was complete absence of supporting evidence for the Arbitrator's findings. I am not persuaded that there was.

The Arbitrator noted that Dr. Gale and Dr. Jarzem, upon whom the Appellant relied, did not recommend chiropractic or physiotherapy treatment. As noted below, the reports for which the Appellant sought reimbursement under subsection 24(1) of the Schedule do not reference any claim under this Regulation. That the Appellant did not ask for receipts for allegedly hundreds of dollars of taxi expenses does not support entitlement for the receipts submitted, certain of which the Arbitrator found did not indicate either pick-up or drop-off addresses.

The Arbitrator did indicate that there was insufficient information regarding the claimed prescriptions to determine what was paid. The Arbitrator held that if the parties could not resolve what was outstanding, the hearing could be resumed to address the specific prescriptions. This order still stands. Otherwise, this aspect of the Appellant's appeal is dismissed.

11. Reimbursement of Medical Reports

Subsection 24(1) of the Schedule provides that the insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, setting out specific examples of what is covered. The Arbitrator found that the Appellant's claimed expenses for the reports of Dr. Gale and Dr. Jarzem were not reasonably incurred for the purpose of obtaining potential accident benefits.

The Appellant submits that he has consistently sought accident benefits entitlement from May 13, 1997 to present, the Arbitrator having erred in this regard. The Appellant further argues that the Arbitrator erred in finding that Dr. Jarzem's report was used for his tort claim as the report was authored in 2004 when the Appellant was not involved in a tort action.

I have no evidence as to the Appellant's allegation regarding the tort action. However, I see no error in the Arbitrator's finding that Dr. Gale's nineteen-page August 4, 1999 report has no reference to the Schedule or any entitlement test under that Regulation. Rather, the report addresses whether the Appellant's injuries sustained are serious and permanent. These are tort, not accident benefit, criteria. While the report does address work and domestic activities that may be compensable under the Schedule as well as in a tort claim, the report also addresses recreational activities that are not compensable under the Schedule.

Dr. Jarzem's five-page February 24, 2004 report also does not mention the Schedule or reference any entitlement test or benefit sought there under. The Appellant had the onus to establish that these reports were incurred for the purpose of the Schedule. On the documentary evidence, the Appellant himself agreeing that the transcript should not be considered, it is uncertain how that can be established. I am not persuaded that the Arbitrator erred in law in dismissing these claims.

12. Other Submissions

The Appellant submits that he is as Canadian as anyone. His grandfather came to Canada in 1892, contributed to the country's infrastructure until his death in 1924 and is buried here. His mother has been a social and charitable activist for 50 years and has been ordained by the Vatican into the Holy Order of Sepulchre of Jesus Christ in Jerusalem. Family members have held positions such as mayor of a Québec municipality. The Appellant submits that his "rights are entrenched, not only via the laws of Canada, but also by ancestral history."

In addition to his argued ancestral rights, the Appellant submits that he worked for 23 years in Ontario, paid all of his taxes, has an unblemished reputation, is highly regarded and was politically active in his profession. He is both an Ontarian and a Quebecker. He has pursued every avenue available to aid his condition, made every effort to prove entitlement and, in 2004, even offered to undergo a polygraph test, an offer that still stands. The Appellant submits that he is now sustained by the Québec Government and that the Commission is in contradiction to its sister ministry. The Appellant submits that the feuds between Upper Canada and Lower Canada are now lost in time – this is 2010 not, he argues, the 1500s.

The Appellant further submits that President Obama's mother died during her struggle to obtain indemnity from an insurer and the history of this matter may well be deemed as criminal intent that could lead to his premature death.

I find that the Schedule sets out the applicable criteria for establishing entitlement to first party motor vehicle accident benefits claims.

These do not include ancestral rights, the good deeds of one's mother or the status of family members. At the arbitration hearing, the Arbitrator had the opportunity to hear and to assess the witnesses, including under cross-examination and in relation to the documentary evidence. The Arbitrator found that the Appellant exaggerated his pain and disability and that his evidence was not reliable. Specifically in light of the declared post-accident income, I find that there was an evidentiary basis to this finding of fact. I am not persuaded that the Arbitrator's decision should be overturned on the basis of these submissions. Accordingly, this appeal is dismissed.

III. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, pursuant to Rule 79.2 of the Code an expense hearing shall be requested within thirty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the quantum of such expenses.

January 5, 2011

Lawrence Blackman Director's Delegate

Date

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