Motor Vehicle Accident Claims Fund v. Berta Avdeeva, 2011 ONFSCDRS 101

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2011 ONFSCDRS 101

Appeal P11-00004

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Appellant

and

BERTA AVDEEVA

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Ms. Lorraine E. Takacs for the Appellant, Motor Vehicle Accident Claims Fund

Mr. George F. Pronay and Mr. Vadim Malyshev for the Respondent, Berta Avdeeva

HEARING DATE:

September 19, 2011

Additional written submissions were received by October 11, 2011.

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 December 13, 2010 decision is confirmed and this appeal is dismissed.

2. If the parties are unable to agree on the legal expenses of this appeal, pursuant to Rule 79.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011), an expense hearing shall be requested, as set out below, within thirty days of the date of this decision.

November 10, 2011

Lawrence Blackman

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

The Respondent, Ms. Berta Avdeeva, maintains that she was injured in a motor vehicle accident on September 2, 2007 and applied to the Appellant, the Motor Vehicle Accident Claims Fund, for statutory automobile accident benefits available under the Schedule.¹ The Appellant does not accept that the Respondent sustained an impairment as a result of an automobile accident and denied the Respondent’s application for accident benefits.

The parties came before Arbitrator Bujold (the “Arbitrator”) for a determination of whether the Respondent was involved in an accident as defined in the Schedule. The Arbitrator’s December 13, 2010 decision held that the Respondent was involved in an accident on September 2, 2007 within the meaning of the Schedule and, accordingly, was not precluded from proceeding to arbitration on her accident benefits claims.

The Appellant argues, in part, that the Arbitrator erred in making findings that a reasonable tribunal, acting judicially and properly directed in law, could not have made, his findings being based on conjecture and a misapprehension of the evidence and/or in the complete absence of evidence.

The Appellant further submits that its concerns have been minimized, rationalized and/or ignored and the evidence it advanced improperly applied contrary to the purpose for which it was called. The Appellant argues that no recognition has been given to the severe prejudice it has sustained, as the public insurer of last resort, in being prevented from properly investigating this matter and in being frustrated in finding a private insurer to relieve the public purse of the burden of this claim.

The Appellant submits that the Arbitrator has erred in law and that his decision should be set aside. The Appellant maintains that it is “not asking for a revisiting of facts and credibility.” Nonetheless, it asks that the delegate, if deemed appropriate, “substitute his own findings and alter the decision accordingly.” In the alternative, a new arbitration hearing is requested.

The Respondent argues that that the Arbitrator took into account the totality of the evidence before him and that the Appellant is simply endeavouring to retry the matter, hoping that another trier of fact will view the evidence differently. The Respondent, therefore, asks that the appeal be dismissed and the Arbitrator’s decision confirmed.

By letter decision dated March 7, 2011, applying Allstate Insurance Company of Canada and Al-Obaidi, (FSCO P99-00009, May 2, 2000), on consent, I exercised my discretion under now Rule 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011) (the “Code”) not to reject this appeal from a preliminary order. Although the arbitration order did not finally decide the issues in dispute, the decision, in addressing the entitlement prerequisite that there be an accident as defined, had the potential of finally deciding the entire dispute.

I will now address the grounds of appeal.

II. ANALYSIS

1. Did the Arbitrator misapply the definition of “accident” in the Schedule?

Section 2 of the Schedule provides that:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;

The Respondent submits that she was injured outside a restaurant where she was attending a wedding reception. The Respondent states that she was standing next to a taxi van holding the arm of a young man named Gesha who was inside the van and who was quite drunk, trying to dissuade him from bothering the driver. Suddenly, the taxi van drove off. The Respondent submits that she was hit and knocked to the ground.

The Appellant’s written submissions argued that the Arbitrator failed to consider the evidence that there was no direct impact between the Respondent and an automobile or any direct involvement of a vehicle. In oral submissions, the Appellant conceded that direct contact with an automobile is not required, but that the decision should be rescinded as the Arbitrator failed to accept the Respondent’s version that she was hit by a car, rather than falling away from it.

In his decision, however, the Arbitrator held that:

I accept that Ms. Avdeeva was hit by the van and fell to the ground. However, I find that it matters little whether Ms. Avdeeva was hit by the van and fell to the ground or pulled forward as she held onto Gesha’s arm, knocked off balance, then fell to the ground. Nor do I find that anything turns on whether she fell directly to the ground or stumbled a couple of steps before falling. Regardless of the exact sequence of events involved, I am satisfied that the evidence establishes a direct causal link between the use or operation of the van, Ms. Avdeeva's fall and her injuries. [emphasis added]

I agree with Director Makepeace in Belair Insurance Company Inc. and Seale, (FSCO P02-00005, January 28, 2003) that the “definition of ‘accident’ does not require that the injury occur while the insured has physical contact with the vehicle.” In that case, the insured, who slipped and fell on an icy road and broke her arm while walking to extricate her car from a snow bank, was found to have been injured in an accident, as defined.

I am not persuaded that there was an absence of evidence to support the Arbitrator’s finding that the use or operation of an automobile directly caused the Respondent an impairment. Nor am I persuaded by the submission that the Arbitrator failed to consider that the impairment was caused by some reason other than a motor vehicle accident. Rather, the Arbitrator stated that:

MVAC Fund would have me conclude that either all of the corroborating witnesses are colluding to mislead or they did not see what they think they saw. Alternatively, MVAC Fund's position invites me to speculate that, notwithstanding these witness accounts that connect Ms. Avdeeva’s fall to the movement of the van, her fall was actually due to alcohol consumption, dizziness (possibly brought on by her diabetic condition), uneven pavement or some other causes unknown.

I am not persuaded by MVAC Fund’s position. There is no evidence of collusion and I found the witness accounts generally credible and reliable, especially when taken together and viewed as a whole. By contrast, MVAC Fund’s postulations are not “[in] harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” I do not accept that Ms. Avdeeva just happened to fall, at the same time as the van sped away, for some reason that was unrelated to the movement of the van. To my mind, this stretches the limits of credulity and ignores the weight of the evidence.

Accordingly, I am not persuaded the Arbitrator misapplied the term “accident,” as defined.

2. Did the Arbitrator refuse to consider section 32 of the Schedule?

For accidents occurring on or after October 1, 2003, clause 32(1.1)(b) of the Schedule provides that a person shall notify the insurer no later than the seventh day after the circumstances arose giving rise to the entitlement to the benefit, or as soon as practicable after that day. The Appellant had argued that the Respondent’s claim ought to fail as her October 25, 2007 notice (some seven weeks late) was out of time and there was no reasonable excuse for her delay.

The Arbitrator found that under the version of the Schedule before him late notice of a claim does not forfeit an applicant’s right to pursue a claim. Rather, the remedy to the insurer is additional time to determine whether the insured person is entitled to a benefit.

The Appellant does not argue that the Arbitrator’s understanding of section 32 is incorrect. Rather, it submits that the Arbitrator was restricted to accepting an incorrect interpretation of the provision as the Respondent never advanced the position taken by the Arbitrator and the Appellant was, therefore, denied the opportunity to respond. The Appellant terms this a refusal to consider section 32 of the Schedule.

The Respondent responds that the Appellant is asking that its position be adopted with total disregard to the wording of the Schedule. She submits that, in any event, the Arbitrator found that the Respondent had a reasonable explanation for her delay.

I am not persuaded that the Arbitrator refused to consider section 32 of the Schedule. The Appellant had the onus in raising this limitation defence and the Arbitrator found the case law upon which the Appellant relied to be inapplicable as it addressed an earlier, differently worded, version of the Schedule.

Nor am I persuaded that the Appellant was denied a fair opportunity to address this issue. The Arbitrator’s decision indicates that if there was any unfairness, it was to the Respondent.

Both the letter and spirit of Rule 33.1 of the Code require the pre-hearing process to be utilized to clearly identify and narrow the issues for arbitration as a key prerequisite to an expeditious, efficient, cost-effective and just hearing.

The Arbitrator states that the section 32 defence advanced by the Appellant was not raised in the pleadings or referenced in the pre-hearing arbitrator’s letter confirming the pre-hearing discussion. Rather, the Appellant alluded to this issue in its opening remarks and expounded upon it in closing submissions. In oral submissions, the Appellant maintained that the Arbitrator’s comments took it by complete surprise. However, the Appellant provided no submission as to when it raised the section 32 issue.

3. Does section 11 of OCF-1 bar an application against the Fund where a police report is not provided?

The Appellant submits that Part 11 of the OCF-1, the Application for Accident Benefits, provides that an applicant and their representative acknowledge that the application “MUST INCLUDE” (as set out in the form) a police report before the applicant can make an application for payment of accident benefits from the Fund, and that the application for accident benefits is not complete until the required documentation is provided to the Fund.

No police report was filed at the arbitration. The Appellant submits that the language of the OCF-1 suggests that the police report is mandatory and an applicant is barred from applying for statutory benefits if the report is not provided. The Appellant, however, was unable to provide any case law in support of this proposition.

The Arbitrator did not address this issue in his extensive reasons. In oral submissions, the Appellant indicated that, in fairness, it did not take the direct position in arbitration that the absence of a police report barred a claim against the Fund. It is not clear that this ground was ever previously raised as a specific reason for denial of the claim by the Appellant.

The Appellant also noted in fairness that Part 11 of the OCF-1 states a person applying to the Fund “must” also provide a Form 3 – Section 6 MVACF Application for Statutory Accident Benefits. However, that form itself states that “[f]ailure to complete this form will delay or jeopardize your right to apply to the Minister of Finance for payment out of the Fund.” The form does not state that failure to complete the form is an absolute bar to any claim.

The Appellant also noted subsection 2(4) of Ontario Regulation 279/03. This provision states that for the purpose of clause 27.1(a) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 (that is, the Minister may require a person who has a cause of action against the Superintendent or against the owner or driver of a motor vehicle that may be uninsured to provide the Minister with the information prescribed by the regulations within the time period prescribed), an applicant must provide “[c]onfirmation of whether a police report was prepared as a result of the incident, and if one was, a copy of the report.”

In Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, the Supreme Court of Canada stated that “the industry practice of using the form prescribed by the Commissioner cannot somehow be a substitute for conformity” with a specific provision of the Schedule.

I am not persuaded that where a police report was not prepared, the OCF-1, in contradiction to subsection 2(4) of Ontario Regulation 279/03 and Form 3 – Section 6, bars a claim. Accordingly, I am not persuaded that the absence of a police report in this case, where no report was prepared, bars the Respondent’s claim against the Appellant.

4. Alleged Errors of fact

Subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I.8, restricts appeals from the order of an arbitrator to errors of law. Delegate Evans, in Young and Liberty Mutual Insurance Company, (FSCO P03-00043, June 20, 2005), application for judicial review dismissed, 2006 CanLII 7286 (ON S.C.D.C.), discussed the standard of review as follows:

The standard in court cases is now that, absent statutory direction to the contrary, appellate courts must defer to all findings of fact made at trial unless the court is satisfied that the finding was the product of a “palpable and overriding” error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. Accordingly, in Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, [2004] O.J. No. 1765 (QL), the Court of Appeal said:

After Housen, appellate courts will not review findings of fact, either primary or those drawn by inference, by asking whether on the totality of the record, those findings are reasonable … [prior cases from this court] must be taken as overruled to the extent that they contemplate appellate review of findings of fact based on an independent albeit limited appellate reassessment of the reasonableness of the findings of fact made at trial …

In Housen, the Supreme Court held that a “palpable” error is one that is “readily or plainly seen.” The principles behind deferring to the findings of fact of the trial judge were noted as:

(1) Limiting the number, length and cost of appeals. Judicial resources are scarce and there is utility in avoiding needless duplication of judicial proceedings with little, if any improvement in the result, while concurrently not prejudicing litigants with fewer resources and frustrating the goal of providing an efficient and effective remedy.

(2) Promoting the autonomy and integrity of trial proceedings. Frequent and unlimited appeals would weaken public confidence in the trial process and undermine the presumption that a trial judge is competent to decide the case before him or her and that a just and fair outcome will result from the trial process. An appeal is the exception rather than the rule.

(3) Recognizing the trial judge’s expertise and advantageous position to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce and the judge’s familiarity with the case as a whole. As the trial judge’s primary role is to weigh and assess voluminous quantities of evidence, the trial judge’s expertise and insight in this area should be respected.

These considerations are consistent with the subsection 283(1) of the Insurance Act restriction of appeals from the order of the arbitrator to questions of law.

In Young, Delegate Evans cited Delegate McMahon in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003), however, that:

… errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was “no evidence” to support a finding and a mere “insufficiency of evidence.”

Delegate Makepeace, in Pembridge Insurance Company and Lesniak, (FSCO P06-00021, December 20, 2007), cited Young. In dismissing that appeal in part, she stated that “I am not the finder of fact, and as there was evidence to support the arbitrator’s finding, and his reasons reflect his awareness of the issue, I am not satisfied the insurer’s concern rises to an error of law.” The Delegate noted her earlier decision in Truong and Lumbermens Mutual Casualty Company / Kemper Group, (FSCO P03-00007, March 31, 2005), where she held that:

… the test for error of law ‘is whether the decision was based on a material finding of fact that was not supported by the evidence such that a reasonable tribunal acting judicially and properly directed in law could not have made the finding in question.’ As the Arbitrator's conclusions were supportable on the evidence, I am not persuaded he erred in law.

The Divisional Court of Ontario, in Kanareitsev v. TTC Insurance Co., 2008 CanLII 26262 (ON SCDC), [2008] O.J. No. 2132, reiterated the factors to be considered in determining the adequacy of an adjudicator’s reasons:

These include the decision-maker setting out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue; it is insufficient for the decision-maker to summarize the parties' positions and “baldly state its conclusions”; and the reasoning process followed must be set out and reflect consideration of the main relevant factors.

The Divisional Court further held that:

Particularly when results turn on the first instance decision maker’s view of the credibility of witnesses and involves a fact-driven analysis, appellate review must take “proper account of the distinct advantage” of the first-instance decision maker’s assessments. The appeal judge must not try the case de novo or simply substitute his or her views for those of the trial judge .

The Appellant, citing Calogero and The Co-operators General Insurance Company, (February 13, 1992, OIC P-000251), submits that the appellate officer is “not to rehear, or second guess [the] arbitrator’s assessment of evidence.” I agree. As stated by Delegate Naylor in Kasap and Allstate Insurance Company of Canada, (OIC P96-00071, March 13, 1998):

It is well established that my role on appeal is not to second guess the arbitrator’s evaluation of the evidence or substitute my own view of the weight to be attributed to it. The arbitrator has the advantage of hearing and observing the witnesses in person. This gives an arbitrator the opportunity to assess the credibility of their testimony and to evaluate the documentary evidence in light of the evidence as a whole.

Accordingly, Truong, noted above, is not a back-door key to having an appellate officer rehear the arbitration or second guess an arbitrator’s assessment of the evidence.

In State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099, the Divisional Court of Ontario stated that:

The Delegate criticized the arbitrator’s findings of credibility on the basis that some of the findings were based on factual errors or failed to consider all the evidence. Not reciting all the evidence does not mean the arbitrator failed to consider it. We find there was ample evidence before the arbitrator to support his findings of credibility as described in his decision.

Likewise, in Lyons and Metropolitan Insurance, (OIC P-009824, December 16, 1996), Delegate Naylor stated that:

An arbitrator must give reasons for his or her decision. He or she need not detail or summarise all of the medical evidence, or address every inconsistency - this would not be sensible or in keeping with the adjudicator’s mandate to deal with disputes expeditiously.

Citing this decision, Delegate Makepeace stated in Kanareitsev and TTC Insurance Company Limited, (FSCO P05-00021, September 18, 2006) that “I would not want to suggest that a 54-page decision should have been longer.”

In his 36-page decision, the Arbitrator carefully considered the major points in issue and the main relevant factors, including the Appellant’s material concerns regarding the evidence, and outlined the basis for his conclusions. It is not my role to second guess the Arbitrator, question whether there was an “insufficiency of evidence,” or determine whether a different trier of fact may have come to a different conclusion. Rather, applying Lombardi, I am not persuaded that there was an absence of supporting evidence for the Arbitrator, who had the advantage of familiarity with the case as a whole and of hearing oral testimony, finding that the direct use or operation of an automobile caused the Respondent an impairment.

While the Respondent’s own testimony was sharply contested, the Arbitrator also had the oral evidence of Mr. S. Tounian, whose testimony the Arbitrator found forthright, direct, clear and generally consistent with the evidence of the Respondent and her sisters. The Arbitrator found there was no evidence to suggest that Mr. Tounian was anything more than an acquaintance of the Respondent or that he had anything to gain from or any interest in the outcome of the proceeding. Notwithstanding the Appellant’s submission that Mr. Tounian’s vision may have been obscured based on measurements it took two years after the event, the Arbitrator found:

… Mr. Tounian’s evidence particularly persuasive as he had a direct line of vision, and I accept that lighting conditions were good and that he was close enough to reliably observe the incident. Mr. Tounian confirmed that Ms. Avdeeva was standing beside the van when it sped off. Most importantly, he testified that, at that moment, she was “pushed away and fell.”

The Arbitrator also noted the evidence of the Respondent’s sisters:

Though perhaps not the most independent and persuasive evidence, I still found Ms. Anshilevich and Ms. Daounova’s evidence sufficiently reliable and persuasive to constitute corroboration of Ms. Avdeeva’s version of events. However, as stated, it was not the only or the best corroborating evidence available.

The Arbitrator also had before him the records of Mr. C. Lau, a senior accident benefits specialist, pertaining to two persons apparently at the scene of the incident. Although stating that he did not place too much weight on these untested accounts, the Arbitrator noted, for corroborative purposes, where these two accounts were consistent with each other and with the accounts of the Respondent, her sisters and Mr. Tounian.

As noted, the Schedule requires that the use or operation of an automobile directly cause, as one alternative, an impairment. The Schedule defines impairment as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” The Arbitrator held that:

There is ample evidence to establish that Ms. Avdeeva sustained an impairment. I accept Ms. Avdeeva’s evidence, the evidence of the witnesses and the medical evidence that Ms. Avdeeva struck her head, sustained a laceration and possibly a brief loss of consciousness as a result of the fall … I also accept that she was weak, in pain and required assistance ambulating. I accept this evidence in support of a finding of “impairment.” As I have already found that the use or operation of the van was a direct cause of her fall, it follows that the van directly caused the impairments.

Mr. Tounian testified that the Respondent fell on her right side and that she had a scrape on the right side of her head. He remembered approaching the Respondent, who seemed unconscious. He put a handkerchief on her head to stop the bleeding and asked people to bring the Respondent some water. In his decision, the Arbitrator held that:

I find the evidence sufficient to establish that Ms. Avdeeva sustained an “impairment” for the purpose of the preliminary issue. While I do not place significant weight on the untested medical evidence, it corroborates the witness accounts that Ms. Avdeeva sustained an impairment on the night in question. I am not prepared to draw an adverse inference from the fact that Ms. Avdeeva chose not to call Dr. Portnoi. I note that MVAC Fund had initially indicated that it would be calling Mr. Lau, but ultimately chose not to call him. I do not draw an adverse inference against either party from the fact that they did not call all of the witnesses initially identified.

I am not persuaded that as a prerequisite to solely meeting the definition of accident, the Respondent must, at this preliminary stage, establish that every impairment that is alleged directly results from the incident. Nor am I persuaded that the Arbitrator erred in law in finding that bleeding on the right side of one’s forehead is an abnormality of a physiological or anatomical structure or function. Further, I see no basis for the assertion that bleeding from the forehead is an insufficient impairment under the Schedule.

Nor am I persuaded that it is a prerequisite that expert opinion evidence is required to confirm that bleeding from the right side of one’s forehead is an abnormality of a physiological or anatomical structure or function and that the absence of such an expert opinion constitutes a finding of fact made in the complete absence of supporting evidence.

The Appellant argues that Steinhoff and Motor Vehicle Accident Claims Fund, (FSCO A04-002153, April 24, 2006) sets out that such expert opinion is a prerequisite to a finding that a person was involved in an accident under the Schedule.

Steinhoff involved an applicant found lying near death in a driveway, bleeding from the head with other serious injuries. The applicant survived, but had no recollection of how his injuries were sustained. Accordingly, in that specific case, expert medical opinion was necessary to determine whether the injuries sustained were consistent with a “pedestrian-automobile knock down.” The need for expert, corroborative evidence in Steinhoff differs from this case where the sworn testimony of four eye-witnesses was heard as to the relevant events in question.

I am also not persuaded that the Arbitrator erred in law in not specifically addressing the alleged prejudice of the Respondent’s failure to attend an insurer’s medical examination to allow the Appellant to obtain an expert medical opinion as to whether, in part, bleeding from the forehead was compatible with a pedestrian motor vehicle accident. As stated by the Divisional Court in Movahedi, not reciting all of the evidence does not mean that the Arbitrator failed to consider it, and there was ample evidence before the Arbitrator to support his finding of impairment.

The Appellant further argues that pre-existing impairments are noted in Dr. Portnoi’s and other records, including a fall in 2006 and depression since 2000, and submits that the Respondent failed to disclose her prior disability that may be the source of any subsequent impairment. It also submits that the Arbitrator failed to address alleged inconsistencies in the Respondent’s post-accident level of impairment.

At page 31 of his decision, the Arbitrator notes the Appellant’s concern as to the role the Respondent’s pre-accident condition had on her post-accident condition and whether her ongoing impairments met the test of entitlement to the benefits claimed. The Arbitrator held that the Respondent’s “entitlement to the benefits claimed must still proceed to a hearing on the merits, and it is in the context of that hearing that MVAC Fund will have the opportunity to fully challenge Ms. Avdeeva’s medical evidence, including her medical history.”

I am not persuaded that the Arbitrator’s restricted consideration of the medical documentation in determining whether there was an accident as defined means that he has totally accepted the truth of the conclusions of the Respondent’s medical practitioners regarding the substantive entitlement issues, prejudicing the Appellant in any further hearing. Nor am I persuaded that the Arbitrator erred in finding that the preliminary issue hearing of whether the Respondent was involved in an accident was not intended to fully examine the substantive issues that would be determined at a full hearing.

The Appellant argues that the Arbitrator failed to consider the Respondent’s evidence and her credibility in its entirety, disregarding discrepancies in her evidence, ignoring admissions, offering rationales when no evidence was called and summarizing the evidence inaccurately. The Appellant argues that the Arbitrator failed to consider the impact of the Respondent’s only explanation as to why there were alleged inaccuracies in the records was that she did not know.

As set out by the Supreme Court in Housen, it is not for an appellate officer to review findings of fact based on an independent, albeit limited, appellate reassessment of their reasonableness. After some ten pages specifically addressing the Appellant’s concerns arising from the evidence, the Arbitrator held that:

In Faryna v. Chorny, [1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354] the court recognized that, where credibility must be assessed, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

I agree with MVAC Fund that Ms. Avdeeva’s evidence raised concerns on many fronts. Specifically, Ms. Avdeeva did not report the incident to the police or initially disclose the involvement of the van, and certain information only came to light in a piecemeal fashion. In fact, MVAC Fund did not have important information about the circumstances of the incident, including the identity of several persons present at the time, until Ms. Avdeeva gave her statement on January 16, 2008. Even then, as MVAC Fund continued its investigation of the incident, discrepancies were revealed between Ms. Avdeeva’s account of the incident and information recorded in the medical evidence. Other minor discrepancies between Ms. Avdeeva’s account and witness accounts were also disclosed.

All of this understandably raised credibility concerns, and I accept that some of the inconsistencies, when viewed on their own and isolated from the evidence as a whole, are quite problematic. Nevertheless, for all of its shortcomings, I find that the evidence, when viewed in its entirety, supports the conclusion that it is more likely than not that Ms. Avdeeva was involved in an “accident.”

I am not persuaded that the Arbitrator erred in law in failing to assess the Respondent’s credibility in its entirety or in disregarding any discrepancies. Rather, to use the words at page three of Delegate Naylor’s decision in Lyons, the Arbitrator’s reasons provide a coherent explanation as to why he reached his decision, acknowledging the most important evidence presented by the parties and attempting to resolve serious conflicts in the evidence.

Thus, contrary to the Appellant’s submission that the Arbitrator failed to fully, properly or at all consider the Respondent’s failure to contact the police, at page 18 of his decision, for the better part of a page, the Arbitrator addresses the Respondent not contacting the police, accepting the Respondent’s reticence to involve the police stemming from her life in the former Soviet Union and her concern about getting a friend’s son, who was very drunk, into trouble. The Appellant’s submission that the Arbitrator failed to consider that the Respondent was a licensed driver in Ontario and had experience with the police is simply an alternative way of arguing that I second guess the Arbitrator’s assessment of the evidence.

Regarding the Appellant’s submission that the Respondent did not contact emergency personnel, the Arbitrator’s decision, at pages eight and nine, notes that the Respondent agreed to be driven by her sister to York Central Hospital, the September 2, 2007, at 2:50 a.m. notes of which were in evidence. At page 18, the Arbitrator addresses the Appellant’s concern that the triage notes state that the visit related to a fall and referred to a small amount of alcohol. The Arbitrator accepted the Respondent’s explanation that she was concerned that the police would be called. The Arbitrator, at page 22, states that he did not place much weight on the minor inconsistency between the record and the Respondent and her sisters denying that she had anything to drink.

The records of the family doctor, Dr. Portnoi, also describe a fall in the parking lot. At page 19 of his decision, the Arbitrator described this as more problematic, but found it consistent with the Respondent’s initial reluctance to share any more information about the incident than she believed necessary.

The Arbitrator, at page 35, found the Respondent’s explanation for her seven week delay in contacting the Appellant reasonable as she did not own a car, did not have car insurance and would not know that a public insurer of last resort would provide coverage. The Arbitrator found that once the Respondent became aware through her neighbour that she might have recourse to benefits, she acted with due haste to obtain legal advice and apply to the Appellant.

At page 21 of his decision, the Arbitrator addressed the Respondent’s oral evidence that the van in question was a dark red or burgundy colour while her earlier statement indicated that she did not recall the colour of the van. The Arbitrator viewed this discrepancy as minor.

The Arbitrator discussed, at pages 20 and 21, the November 2007 letters from the Respondent’s representative indicating there were no witnesses to the incident. The Arbitrator found, in part, that the representative’s intake information form had many deficiencies, including the section on injuries being left blank. The Arbitrator found that whatever the reason for the incorrect information the representative provided, there were clearly witnesses to the accident, three of whom (as well as the Respondent) testified and a further two whom the Appellant interviewed.

Regarding the Appellant’s submission that Mr. Tounian was only identified in August 2009, seven months before the hearing, the Arbitrator found, at page 21, that the issue of delay in advising of the names of witnesses did not have much bearing on the question of whether the Respondent was involved in an accident, as defined. I am not persuaded that the Arbitrator erred in law in finding that what mattered was the credibility and reliability of the witness accounts.

As to the Appellant’s argument that the Respondent’s January 16, 2008 statement did not provide specific information and that the Appellant was prejudiced by the Respondent’s failure to co-operate, the Arbitrator found that the Appellant’s:

… characterization is most unfair and not substantiated by the evidence. The fact is that [the Appellant’s claims specialist] Mr. Lau did not communicate to Ms. Avdeeva or her legal representative that her responses were in any way inadequate. He did not ask for additional address information, he did not ask for Gesha’s last name or further information on his possible whereabouts, and he did not ask for the names of any other persons who may have relevant information. I can appreciate that counsel may have felt that such information was important, but Mr. Lau did not ask those questions. In fact, the adjuster’s notes suggest that Mr. Lau did nothing with the witness information that was provided to him for over three months when, on May 20, 2008, he finally attempted to contact some of the names provided by Ms. Avdeeva. When he did finally contact them, Mr. Rahaminov and Mr. Mataev confirmed that an incident involving Ms. Avdeeva and a van had taken place.

At all times, both before and after speaking to Mr. Rahaminov and Mr. Mataev, it was open to Mr. Lau to request further and better information regarding the persons referred to in Ms. Avdeeva’s statement or inquire whether any other persons may have possibly witnessed the incident. But he did not do so …

The Arbitrator concluded that:

I find that MVAC Fund has done more to establish that Mr. Lau failed to adjust Ms. Avdeeva’s claim in a timely manner or effectively communicate his concerns than it has done to establish that Ms. Avdeeva failed to cooperate with its independent adjuster. While I agree that this case raises credibility issues, I reject the submission that Ms. Avdeeva’s dealings with the adjuster form a basis to doubt her version of events.

The Appellant argues that the Arbitrator improperly applied Mr. Tounian’s evidence. It submits that it raised the issue of diabetes-related dizziness with Mr. Tounian only to show that the Respondent’s admitted diabetes may have caused her fall, not to assist the Respondent’s case in any way. I am not persuaded that the Arbitrator erred in law in noting Mr. Tounian’s denial of any dizziness as a result of his own diabetic condition. I am not persuaded that a party has a proprietary interest in its cross-examination that limits the adjudicator to considering only those answers that assist that party’s theory of the case.

The Appellant argues that the Arbitrator’s decision was based on conjecture, that the Arbitrator imputed a rationale or facts not called as evidence to fill gaps. Certain of these concerns, such as whether the family doctor, Dr. Portnoi, was indeed in possession of a specific report, cannot be seen as material points in issue.

In Lombardi, Delegate McMahon noted the decision of Johnston v. Murchinson, 1995 CanLII 8966 (PE SCAD), [1995] P.E.I.J. No. 23, where the Court of Appeal quoted with approval the following passage from Caswell v. Powel Duffrny Associated Collieries Ltd., [1940] A.C. 152 (H.L.):

Inferences must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish ... But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

The Appellant submits that the Arbitrator’s findings regarding why the Respondent did not tell Dr. Portnoi that her injuries resulted from a car accident and why her representative did not initially provide the Appellant with the names of witnesses was based on conjecture. However, I find that the Arbitrator, in addressing these credibility concerns at length, had before him the Respondent’s oral evidence as to her reluctance to provide third parties with the details of the incident and the evidence of the representative’s overall deficient intake information form.

As stated by the Supreme Court of Canada in Housen, appeals that simply duplicate the hearing at first instance merely prejudice litigants with fewer resources and frustrate the goal of an efficient and effective system of dispute resolution while undermining the integrity of the process and failing to recognize the expertise of the arbitrator and his or her advantageous position. This, succinctly, has been the major part of this appeal.

The Appellant feels strongly that the Arbitrator should have weighed the six days of oral evidence and the extensive written evidence before him differently. However, as set out above in Young and in Lombardi, the question is not the sufficiency of the evidence but whether there was no evidence before the Arbitrator upon which he made his finding that the use or operation of an automobile directly caused the Respondent an impairment. As stated, I am not persuaded that that there was no evidence for the Arbitrator’s finding.

5. Alleged Procedural errors

The Appellant argues that the Arbitrator denied it a fair hearing. Delegate Makepeace held in Howard and State Farm Mutual Automobile Insurance Company, (FSCO P04-00017, November 19, 2004) that questions of law include questions of fair procedure.

The Appellant submits that the Arbitrator allowed witnesses to be present during objections notwithstanding its request the witness be excluded, allowing the witness to tailor their evidence based on the nature of the objections and/or the issues and facts raised. The Appellant cites eight instances during the Respondent’s cross-examination and one each regarding each of her sisters.

The Appellant did not provide any case law or guidance in this regard.

In most of the instances noted by the Appellant regarding the Respondent, no specific objection is made by the Appellant that the Respondent be excused. At page 81 of the March 16, 2010 transcript, the Appellant does suggest that the Respondent be excused if the representatives are going to get into certain details. However, the Arbitrator immediately states that he is allowing the Appellant’s line of inquiry.

At pages 85-88 of the transcript, the Appellant’s counsel does not ask for a ruling from the Arbitrator, but states to the Respondent’s representative that his client should not be present during his objections, to which he agrees. At page 199, the Appellant’s representative suggests that “it might be best to excuse Ms. Avdeeva.” At page 201, the Arbitrator does exactly that.

Justice Ferguson, in Ontario Courtroom Procedure (Markham: LexisNexis Canada Inc., 2007), starting at page 91, states that it “is inappropriate to require the witness to leave the courtroom at every objection merely because there is an objection,” such as where the objection is to the form of question or about an evidentiary principle where the discussion would not necessarily involve an analysis of the prospective answer or raise any prejudice before a jury. The witness should be excused when the submission or the ruling could provide assistance to the witness in formulating a favourable answer or signal to the witness which evidentiary areas to rely upon or avoid.

Justice Ferguson states that the primary onus is on counsel to ask the judge to excuse a witness where appropriate. Should counsel not do so, “then the judge should consider asking counsel if the witness should be excused.”

A tribunal does not have the formality of a court, nor is a jury present. Nonetheless, there is a valid concern that in weighing evidence, the ability of the witness to tailor his or her evidence is a consideration. Thus, in McElrea and Treasury Board (Industry Canada), [1999] C.P.S.S.R.R. No. 25, Board Member Cloutier states that:

Adjudicators appointed under the Public Service Staff Relations Act do not, as a general rule, exclude witnesses during decisions on objections, nor should this be done as a matter of course, as seems to be suggested by counsel for the grievor. It is the responsibility of counsel in each case, where appropriate, to ask for the exclusion of a witness during deliberations on an objection by either counsel.

In Liu Estate v. Chau, 2004 CanLII 8234 (ON CA), [2004] O.J. No. 306, the Ontario Court of Appeal held that the trial judge had erred in excluding a wife from the courtroom during her husband’s testimony. The Court held that parties “have the right to be present, not only to hear the case put against them, but as a matter of fairness and openness and to avoid ‘a justifiable sense of injustice’ because they were deprived of the ‘opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial.’” The Court held, however, that while a breach of the rule had been established, that did not entitle the defendants to a new trial. Rather, to obtain a new trial it must be shown that a substantial wrong or miscarriage of justice was occasioned, pursuant to subsection 134(6) of the Courts of Justice Act, R.S.O. 1990, chap. C. 43.

In this case, given that the evidence of Mr. Tounian is not critiqued on this ground, in any event, I am not persuaded that these submissions would amount to a substantial wrong or miscarriage of justice warranting a new arbitration hearing.

The Appellant further argues that the Arbitrator undermined the Appellant’s cross-examination by allowing repetitive and unsubstantiated objections by the Respondent’s counsel. However, the

Arbitrator, starting at page 106 of the March 16, 2010 transcript, specifically states the following to the Respondent’s counsel:

…I don’t want a whole lot of interruptions to the cross-examination either … If you are continually interrupting the cross, if the cross isn’t being given an opportunity to be done effectively, that can also raise questions about, “Well, you know, is there something there that you are not really wanting to come out?”

I am not persuaded that there was an error of fair procedure by the Arbitrator in this regard amounting to an error of law.

The Appellant submits that the Arbitrator erred in law in agreeing, during the hearing, to conclusions or summaries during objections that did not accurately reflect the evidence heard, citing pages 141 and 144 of the May 16, 2010 transcript.

There was no hearing on May 16, 2010. There is a March 16, 2010 transcript. At page 141 there is no notation of any remark by the Arbitrator. At page 144, the Arbitrator accurately paraphrases a prior question and response. The exchange pertains to an individual who was not called as a witness, but who was interviewed by the Appellant. I am not persuaded that there was an error of law, or that any error warrants a new hearing.

The Appellant argues that the Arbitrator erred in not allowing into evidence a report prepared for the Appellant by Mr. H. Schlesinger regarding the location of the incident. Mr. Schlesinger attended the incident scene on January 18, 2010. His report was served February 25, 2010, less than three weeks before the March 15, 2010 start of the arbitration hearing.

Rule 39.1 of the Code provides that all reports to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing. Rule 39.2 provides that in “extraordinary circumstances” a party may seek an arbitrator’s permission to serve a report less than 30 days before the first day of the hearing. The Appellant submits that while Mr. Schlesinger’s report was served late, the prejudice to the Respondent, if any, no longer applied when the arbitration hearing resumed in May 2010.

I am not persuaded that the Arbitrator erred in law in applying Rule 39. The Arbitrator, in his oral ruling, found that there were no extraordinary circumstances to warrant allowing the report into evidence. Rather, he found that the Appellant had the information it needed by the end of November 2009, giving it ten weeks to prepare and serve its report.

Rule 39.1 does not speak of 30 days before the “resumption of the hearing,” but 30 days before the first day of the hearing. I am not persuaded that the Code’s intention of timely notice should be read in a manner so as to defeat that intent or that Rule 39.1 itself becomes the exception.

In any event, on the consent of the Respondent, the Arbitrator allowed the photographs taken by Mr. Schlesinger into evidence and allowed him to testify regarding those photographs and what he observed when he attended the scene of the incident. Counsel for the Appellant noted on the record that Mr. Schlesinger was not providing an expert opinion.

The Arbitrator found that Mr. Schlesinger could not speak to the pavement conditions two years before his attendance at the location of the incident or, as he attended during the day, address lighting conditions at night. I am not persuaded by the Appellant’s submission that any weaknesses in Mr. Schlesinger’s report must be discounted due to the Respondent’s seven-week delay in contacting the Appellant and her alleged failure to co-operate with the Appellant.

The Appellant submits that the Arbitrator allowed the Respondent to split her case, calling evidence on redirect that ought to have been called in chief. The Appellant references pages 109 to 121 of the March 16, 2010 transcript. Those pages are in the midst of the Appellant’s cross-examination of the Respondent that continues to page 201. I am not persuaded that the Appellant has established a miscarriage of justice warranting the rehearing of this arbitration.

The Appellant argues that it was prejudiced by the Respondent’s failure to call Dr. Portnoi, whom the Respondent identified as a witness at the pre-hearing discussion. The Appellant submits that it had no opportunity to summons Dr. Portnoi, being first advised he was not being called at the beginning of the hearing.

At the beginning of the hearing, the Arbitrator identified the witnesses the parties intended to call. The Appellant raised no objection to Dr. Portnoi not being called, nor did it not seek leave to summons Dr. Portnoi, there being no ownership in a witness.

Further, the pre-hearing letter sets out prospective witnesses. A party is not bound to call all of the witnesses identified. It is certainly best practices for a party to confirm in a timely manner prior to the hearing the witnesses it will be calling. As noted above, the Arbitrator did consider the failure of both parties to call identified witnesses, concluding that he was not prepared to draw an adverse inference against the Respondent for not calling Dr. Portnoi, or the Appellant not calling Mr. Lau, as it initially indicated it would. I am not persuaded that the Arbitrator erred in this regard or that a new hearing is justified on this basis.

The Appellant submits that the Arbitrator erred in relying on documents “not allowed into evidence by the Appellant.”

There was significant discussion during the arbitration hearing as to the exhibit book that would go before the Arbitrator. At pages 219 to 222 of the March 16, 2010 transcript, the Arbitrator states that if documents go in as exhibits, it is taken that he has read them in their entirety. He thus asks that he only be given what is relevant. The Appellant’s counsel undertook to identify the documents she either intended to put to a witness or that the Arbitrator was being asked to consider. At page 85 of the May 12, 2010 transcript, the Arbitrator again states that if something is part of the record, it would be considered evidence before him, other than those portions blacked out that he is not to read or consider.

On May 17, 2010, the Appellant sent an arbitration brief to the Commission. Its subsequent written arbitration submissions state what documents in the exhibit book are relevant, including the clinical notes and records of York Central Hospital at tab 63, no part of which is blacked out. The list does not include the adjuster’s notes, at Tab 117. However, no part of these notes is blacked out. The Arbitrator has a notation that the “Joint” Brief, Tabs 1 to 126, was tendered into evidence.

The Appellant submits that the medical documentation was referenced solely for the purpose of cross-examination to address inconsistencies, misstatements and erroneous conclusions, and could not be used for the truth of their contents such as any injuries sustained. It further argues that the adjuster’s notes were misapplied and improperly considered, as it made it clear that it did not intend to rely on the notes and the “only use of the adjuster’s work product was the statements of the Respondent and her sisters.” The Appellant relies on Degennaro v. Oakville Trafalgar Memorial Hospital, 2011 ONCA 319 for the proposition that the court cannot rely on documents in the exhibit brief where objections are raised.

In Degennaro, the Ontario Court of Appeal held that:

It is not unusual for counsel, at the outset of a civil trial, to mark one or more volumes of bound documents as exhibits. These are normally marked as exhibits subject to proof. This will often allow for a better and more orderly management of the exhibits filed at trial. This case highlights the importance of ensuring that, at the conclusion of the trial, the status of the many documents contained in those volumes is clear (i.e. whether they have been proven and can be relied on by the trial judge in reaching a decision).

In that case, the documents in issue were future care cost reports. The Court found that the trial judge had erred in using the reports to determine the damages for the cost of future care on the incorrect presumption that the costs were not in dispute. The Court of Appeal found that there was an evidentiary basis for awarding damages for the costs of future care. However, in several instances “there was simply no evidence to support the claim set out.”

Regarding the rules of evidence in this administrative law setting, Delegate Naylor, in Ahmed and Allstate Insurance Company of Canada, (OIC P96-00068, June 23, 1998), stated that:

The strict rules of evidence do not apply to Commission proceedings. Hearsay evidence is allowed but the considerations of fairness, reliability and relevance underlying the rules should inform an arbitrator’s approach.

Delegate Naylor reiterated in Salvaggio and Simcoe & Erie General Insurance Company, (FSCO P97-00062, January 21, 1999), that:

Arbitrators therefore have a greater latitude than a court (particularly a court in criminal matters) in dealing with evidence. This allows the focus to be on the weight to be attributed to such evidence rather than the technicalities of admissibility. As one commentator puts it, the rules of evidence should be considered “in terms of the signals that the rules send about a particular piece of evidence.”… The principles underlying the rules should inform an arbitrator’s approach.

Director Draper, in MacAulay and General Accident Assurance Company of Canada, (FSCO P98-00010, October 13, 1999), stated that:

While hearsay is admissible under s.15 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, arbitrators must carefully consider its limitations. Because hearsay evidence cannot be tested on cross-examination, it may be unfair to assume its accuracy — particularly if it is the only evidence on a crucial finding. However, in a system where hearings are to be quicker, more informal, and cheaper than the courts, hearsay evidence is inevitable. There is no fixed rule. Each case must be considered on its particular facts.

It is clear from the Arbitrator’s decision that he did not blindly accept the truth of the entire brief put into evidence by the parties. Nor can it be argued that the Arbitrator failed to give explicit notice to the parties that he would consider, as he was obliged to do, all of the evidence, both oral and written, before him.

The Arbitrator specifically commented on the limitations of the documentary evidence. As noted above, regarding the adjuster’s notes as to two additional witnesses, the Arbitrator commented that those statements were untested and that he did not place too much weight on them, but noted them for collaborative purposes. Regarding the medical documentation, the Arbitrator stated that:

While I do not place significant weight on the untested medical evidence, it corroborates the witness accounts that Ms. Avdeeva sustained an impairment on the night in question.

I am not persuaded that the Arbitrator erred in law in his consideration of the joint brief prepared by the parties and entered in evidence.

6. Bias

The Appellant submits that the Arbitrator made his determination before hearing all of the evidence, stating during the Respondent’s cross-examination and without hearing the other witnesses, that the Respondent “probably gave enough to establish that there was an accident potentially.”

In Kahkesh and Lloyd’s Non-Marine Underwriters, (OIC P-000378, August 19, 1992), Director Sachs held 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 cited 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 Arbitrator specifically qualified his above comments with the adjective “potentially” and that this was subject both to cross-examination and the evidence of the other witnesses. I am not persuaded that the Arbitrator closed his mind to being persuaded, prejudged the issues so as to preclude the acceptance of representations to the contrary or denied the Appellant a fair hearing.

The Appellant also argues that the Arbitrator’s comments during the hearing and his decision were not even-handed but were an attempt to assist the Respondent. The Appellant provides, as an example, the Arbitrator’s comment that the Respondent being charged or convicted of certain offences did not necessarily mean that she knew the ins or outs of insurance law.

At page 88 of the March 16, 2010 transcript, the Arbitrator, after hearing submissions, allowed the Appellant to cross-examine the Respondent on her understanding about the requirement for automobile insurance. Subsection 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, provides that a “tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.” I am not persuaded that the Arbitrator exhibited bias in finding that there was insufficient probative value in also cross-examining the Respondent on her suspensions or convictions prior to 2005.

The Appellant further submits that the Arbitrator was not independent or impartial in creating a response to the section 32 defence for the Respondent not raised by counsel. As stated above, the onus of establishing the section 32 defence was on the Appellant. I am not persuaded that the Arbitrator exhibited bias in finding that the case law upon which the Appellant relied was inapplicable as it pertained to an earlier wording of the provision.

Accordingly, having considered and rejected the grounds of appeal, the Arbitrator’s December 13, 2010 decision is confirmed and 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 this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of such legal expenses, as are in dispute.

November 10, 2011

Lawrence Blackman

Director’s Delegate

Date

Footnotes

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