D.F. v. Wawanesa Mutual Insurance Company, 2011 ONFSCDRS 113

Neutral Citation: 2011 ONFSCDRS 113

Appeal P08-00024

Appellant

and

Respondent

Before:

David Evans

Representatives:

D.F. representing herself

Ian D. Kirby for Wawanesa Mutual Insurance Company

Hearing Date:

July 26, 2010

APPEAL ORDER

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

The appeal of the arbitration orders dated August 13, 2007, June 20, 2008, and August 15, 2008 is hereby dismissed.
An appeal legal expense hearing shall be requested within thirty days of the date of this decision, accompanied by a Bill of Costs and written submissions, as set out below.

December 15, 2011

David Evans Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

D.F. appeals a decision on a motion made by Arbitrator Rogers on August 13, 2007, and appeals Arbitrator Sampliner's orders dated June 20, 2008, dismissing her claims for accident benefits under the SABS-1996,¹ and August 15, 2008, awarding Wawanesa arbitration expenses of $9,457.84.

II. BACKGROUND

This is the second hearing and appeal regarding D.F.'s claims arising out of an accident that occurred on October 13, 2002. D.F. had earlier appealed Arbitrator Kominar's order dated August 23, 2006, dismissing her claims under the SABS for income replacement benefits (IRBs) and medical-rehabilitation benefits and for a special award. She also appealed the expenses order dated December 22, 2006, awarding Wawanesa expenses of $15,344.05. In a decision dated April 15, 2008, I rejected that appeal. The decision was taken to judicial review and heard on November 18, 2011, with the decision reserved.

As noted in Arbitrator Rogers' motion decision, in September 2006, D.F. filed a new Application for Arbitration arising out of the October 2002 accident, based on a further mediation that took place in June 2006. At the pre-hearing, Arbitrator Rogers set a hearing date for September 24, 2007. On July 18, 2007, D.F. requested a motion. Arbitrator Rogers rejected D.F.'s request for Wawanesa to produce a transcript of the 2006 arbitration to be used as evidence. He held he had no jurisdiction to admit it in light of s. 15.1(1) of the Statutory Powers Procedure Act, which allows the use of previously admitted material only if all the parties consent. He rejected her request for entries from Wawanesa's accident benefits file since the first arbitration because the request for production was being made for the first time six months after the pre-hearing and on the eve of the arbitration hearing, and he was not prepared to embark on the document by document analysis of Wawanesa's file, required to determine the claim for privilege. He did order production of a medical file.

The arbitration hearing started on September 24, 2007. D.F. alleges many procedural irregularities by Arbitrator Sampliner, discussed below. However, they are best understood by first considering the substantive issues.

The substantive issues turned on causation. D.F. claimed for various medical and rehabilitation benefits under Part V of the SABS-1996, housekeeping expenses under s. 22, attendant care benefits under s. 16 and a special award. As noted by Arbitrator Sampliner, two previous incidents had caused D.F. physical and psychological problems: "In 1999 she suffered a head injury when a box fell on her at a Canadian Tire store, and she sustained physical injuries with post-traumatic stress in a 2000 incident with the Toronto police." Based on the evidence of D.F. and of her former boyfriend, M.P., as well as the medical evidence, in particular that of Dr. Otto Veidlinger, a neurologist who first saw D.F. in August 1999 on referral from her family physician, the Arbitrator found that D.F. "suffered from neck and shoulder pain, depression and anxiety/stress, and erratic sleep at the time of the automobile accident, but she was practicing dance, acting, managing a small amount of part-time work and enjoying social life."

On October 13, 2002, D.F. was injured in a rear-end collision. Relying on the report of Dr. Brian Alpert (Insurer's medical examiner) at Riverfront Medical Evaluations and the emergency records of the hospital D.F. attended shortly after the accident, the Arbitrator found that "D.F. sustained a mild neck/shoulder whiplash injury as a result of the October 13, 2002 accident, and attended massage and cranial sacral treatment for three months."

The Arbitrator then considered both the physical and psychological aspects of the ongoing effects of the accident on D.F.

Regarding D.F.'s physical recovery, the Arbitrator heard evidence from both M.P. and D.F. that she auditioned and performed in commercial productions after the accident, and medical reports also mentioned a resumption of her acting and massage therapy career. In March 2003, Dr. Alpert found no discernible physical restrictions or need for further therapy. Dr. Veidlinger continued to see D.F. regularly after the accident, and the Arbitrator noted that in a June 2005 report Dr. Veidlinger attributed D.F.'s physical problems to the previous incidents. The Arbitrator wrote that

Dr. Veidlinger has viewed the changes in D.F.'s physical condition over time. His opinion is not contradicted by another expert, and I find his evidence persuasive. I rely on Dr. Veidlinger respecting the causation of D.F.'s physical symptoms and function, and on Dr. Alpert's finding that she recovered from her physical injuries from the accident by March 2003.

Accordingly, the Arbitrator found that the accident did not cause or significantly contribute to D.F.'s physical condition.

The Arbitrator noted that D.F.'s psychological condition was more complicated due to her emotional reaction to the two pre-accident incidents. For instance, she had been receiving counselling relating to the police incident. Dr. James Rennie, a general practitioner, stated in his December 2004 report that D.F.'s intense fears were re-ignited by the 2002 car accident. However, the Arbitrator gave that opinion little weight because Dr. Rennie was not a certified psychologist, conducted no psychological tests, and did not state the accident was a significant contributing factor to D.F.'s psychological condition.

D.F. relied on the October 2007 report of Dr. G. Fiati, a clinical psychologist. However, her report states that D.F.'s "current difficulties with cognitive and emotional functioning could be attributed to the fall out of the accident." The Arbitrator found that "[b]y using the word 'could,' Dr. Fiati [did] not provide an opinion that the accident is a significant contributing factor to her psychological condition." After noting that Dr. Fiati did not testify, he concluded that her evidence did not support D.F.'s position.

Dr. Mavis Himes, another consulting psychologist, interviewed D.F. in November 2006, and found the accident materially contributed to D.F.'s weight gain. However, the Arbitrator noted D.F.'s testimony that she worked part-time after the accident, taught line dancing at a retirement home, participated in dance classes and completed acting jobs. He found that undermined "Dr. Himes' statement that D.F.'s depression/anxiety measurably increased post-accident based on her weight gain."

The Arbitrator noted that D.F. had moderate or severe anxiety, depression and post-traumatic stress before and after the automobile accident, and while Dr. Fiati, Dr. Veidlinger and Dr. Rennie pointed to the car accident as triggering a reaction, they did not state it materially or significantly contributed to D.F.'s physical or psychological condition. He also noted that D.F. was not fully functional before the accident, and that her activities both before and after it were quite similar. Therefore, he found that the accident also did not cause or significantly contribute to D.F.'s psychological condition. On that basis, she was not entitled to her claimed accident benefits under the SABS.

The Arbitrator then reviewed D.F.'s various accident benefit claims if he was wrong about causation, and made the following findings: Although counselling might have been reasonable, there was no treatment plan setting out the number of sessions or cost estimate. D.F's expense claim for travel to counselling was unsupported by evidence linking the transit receipts to that counselling. Her claim for attendant care benefits/hair care was not supported by a health care expert. D.F.'s claim for housekeeping performed by M.P. was not supported by any documentary evidence, and, based, on the medical evidence, the Arbitrator found that D.F. did not suffer a substantial inability in doing her housekeeping. No credible expert evidence supported D.F.'s $15,000 annual claim for nutritional counselling and organic food, nor was there any evidence that the accident caused a vitamin deficiency. As for the various vocational and fitness classes and training and equipment, the Arbitrator was not prepared to accept the treatment plans based on the fact that D.F. wrote them out herself and Dr. Veidlinger only signed them because he thought they sounded reasonable, while admitting he lacked any specific knowledge about the programs or items. Finally, the Arbitrator did not accept that photographic headshots of D.F. could be a reasonable and necessary rehabilitation expense of this accident.

The Arbitrator also rejected D.F.'s claim for a special award, as she had not recovered on any of her claims in this arbitration, and so there was no basis for one. He added that, " [e]ven if D.F. had established causation, I would not be prepared to make a special award under subsection 282(10) of the Insurance Act."

Under the Expenses heading, the Arbitrator noted that D.F. was entirely unsuccessful, raised no novel issues and unnecessarily prolonged the proceedings, so he was inclined to award Wawanesa some or all of its expenses and asked for submissions for an expense hearing.

As for the expense hearing, D.F. submitted to the Arbitrator that the arbitration hearing was not completed on November 23, 2007, and therefore he had no authority to decide the parties' expenses. He rejected that submission because he had rendered a final decision on the merits. On the basis set out in his decision and pursuant to Rule 75 of the Dispute Resolution Practice Code, he awarded Wawanesa $9,457.84 for its expenses of the arbitration hearing, after having deducted the court reporter's fee.

III. ANALYSIS

As referred to above, the Arbitrator had to make a number of procedural rulings. He wrote that he understood D.F. was a layperson representing herself, so he "explained the hearing process in plain language during the opening of the process, and allowed her additional time to make her submissions and significant latitude in questioning witnesses." However, despite granting D.F. frequent breaks, he had to "minimize the delay and confusion caused by D.F.'s frequent interruptions, emotional outbursts and irrelevant comments" by exercising control of the hearing. He rejected D.F.'s argument that his attempts to control the proceedings excluded her.

The Arbitrator also rejected D.F.'s argument that in allowing counsel for Wawanesa a one-day adjournment – to attend a last-minute meeting of the Judicial Appointment Committee on which counsel sat – he was either demonstrating partiality to Wawanesa or currying favour for a judicial appointment.

The Arbitrator refused D.F.'s motion for an order requiring Wawanesa to provide a copy of the transcript from the previous arbitration (noted above), in light of its marginal relevance, the significant cost and delay of its preparation, and the fact that the witnesses and documentary evidence were still available for this hearing.

The Arbitrator rejected D.F.'s argument that he erred in overruling her objection to the introduction of medical reports on the basis that they were relevant medical evidence not covered by solicitor/client privilege.

Finally, he dismissed D.F's bias claim, noting that the parties had five days to present their evidence: "D.F. admits she was distraught during this hearing, but her misunderstanding, lack of knowledge about evidentiary rules and legal process does not serve as a factual basis to support her claim she was either excluded from meaningful participation in the hearing process or that a reasonable person would apprehend I showed bias towards Wawanesa in this matter."

Procedural issues also took up a large portion of the appeal, turning initially on the issues of the transcript and written submissions but including other issues.

As noted above, D.F. sought to have the transcripts from the first arbitration provided and paid for by Wawanesa. In her Notice of Appeal, received July 18, 2008, D.F. made the same request for the transcript in this arbitration. I ruled on August 18, 2008, that I would not do so, based on existing case law. D.F. then sent a "Request for an Adjournment and Affidavit," which I took as a request to stay the proceedings until D.F. retained counsel and obtained the transcript, and allowed further time for written submissions. On November 29, 2008, since neither counsel nor transcripts were forthcoming, I set out new timelines for submissions. On January 9, 2009, D.F. wrote to say that, despite being disadvantaged at every turn, she expected to provide her submissions within two weeks. Although counsel for Wawanesa then requested the dismissal of the appeal for delay, I pointed out that Rule 58.1 of the Dispute Resolution Practice Code provides that a delegate may proceed with an appeal even in the absence of submissions, so failure to file submissions does not automatically lead to dismissal of an appeal. After a teleconference on September 9, 2009, D.F. agreed to provide her written submissions by November 27, 2009. No written submissions having appeared by February 2010, counsel for Wawanesa agreed to waive the requirement for written submissions, so in a letter dated February 18, 2010, I ordered that the hearing would proceed with the materials filed. Over the ensuing weeks, our office called and left messages with D.F. to set a hearing date. Finally, I simply set a hearing date of July 26, 2010.

At the beginning of the hearing, D.F. advised that she had submissions prepared, although they were not there at the hearing room. I ruled that there would be no further filings. As seen in the previous paragraph, I had provided her with extra time for preparation for the hearing, and there is a need for finality. D.F. wished me to note in this decision that she thought I said it was permissible for her to at least send the index of her submissions. My notes show otherwise, but despite my order, D.F. e-mailed her submissions the day after the hearing. Those submissions have played no role in my writing this decision as I have not considered them. In any event, as part of the materials filed by D.F. the morning of the appeal hearing was a 32-paragraph document outlining her submissions, which we spent over five hours going through.

During the appeal hearing, D.F. also reiterated her wish that I order the transcript of the arbitration, despite my earlier orders denying that request. In fact, since my original order regarding the transcripts, the Divisional Court has spoken. This accordingly deals with D.F.'s appeal of the decisions of Arbitrators Rogers and Sampliner regarding the transcripts of the first arbitration as well. At para. 16 of Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627, the Divisional Court stated:

There is clearly no legal obligation on the successful party in an arbitration to pay for a transcript for the assistance of the unsuccessful party's appeal. Likewise, there is no breach of procedural fairness in requiring appellants to pay for their own transcripts if they are required for an appeal. There is no merit to this ground of judicial review.

Another procedural issue raised on the morning of the appeal hearing were three affidavits D.F. wished to file from Dr. Veidlinger, Dr. Fiati, and Ann Marie Lloyd, a potential witness.

I ruled that I would not admit the affidavit of Dr. Veidlinger, who had been called as a witness and was examined and cross-examined. I ruled that his affidavit was merely an attempt to clarify or explain his testimony and reports.

I ruled much the same with regard to the affidavit of Dr. Fiati, whose affidavit was also a gloss on her report. I ruled that the issue before me is what the Arbitrator understood from Dr. Fiati's report and to see if there was an error of law. I did admit paragraph 15 of the affidavit, dealing with the reasons why Dr. Fiati did not attend at the hearing, which goes to D.F.'s submission that she was not allowed time to complete her case. Dr. Fiati affirms that she was summonsed by D.F. to attend the arbitration on October 19, 2007 and told by D.F. that she was waiting for the Arbitrator to decide on a day for her attendance. She also affirms that on or around November 19 or 20, 2007, D.F. called her and "seemed frustrated. From what I recall from that conversation, the Arbitrator suggested that I write something instead of attending the arbitration hearing."

I also admitted paragraph 3 of Ann Marie Lloyd's affidavit, which also speaks to attendance at the hearing. Ms. Lloyd affirms that on September 26, 2007, she attempted to testify at D.F.'s arbitration hearing. She was not heard that day, and was not called back.

Despite the orders I made at the appeal hearing regarding the affidavits, D.F. wrote to me on November 10, 2010 asking me to allow Dr. Veidlinger's entire affidavit into evidence to show that a neuropsychological assessment was an issue to be determined. I declined to do so, on the basis that it would be entirely impractical to do so at that point.

Another procedural issue D.F. raised at the start of the appeal hearing was whether or not I should even hear the appeal. D.F. stated she had concerns about my hearing the appeal, given that she had pursued judicial review of the appeal of the first arbitration. I had been delegated to hear the appeal for about two years by then, and this was the first time this issue was raised. D.F. wanted to know if I had ever found against a party on one appeal and then heard another appeal from the same case. However, I confirmed with the Director that s. 281.1(12) of the Insurance Act does not apply in this case, as it provides that " [a] party may apply to the Director for the appointment of a new arbitrator if the party believes that the arbitrator is biased and the Director shall determine the issue." Since I stand in the place of the Director, it is for me to decide whether or not I am biased, if that is what D.F. was seeking. D.F. stated that her submission was not an "allegation" or meant to be accusatory. I stated that I would keep an open mind and was not biased.

Most of the rest of D.F.'s appeal deals with the alleged improprieties of the Arbitrator, thus entitling her to a further hearing before another arbitrator, but these alleged procedural irregularities must be seen against the factual findings made by the Arbitrator.

As set out in Rule 50.1 of the Dispute Resolution Practice Code and s. 283(1) of the Insurance Act, a party to an arbitration may appeal an order of an arbitrator to the Director (or his delegate) only on a question of law. The key point is that this was a fact-based decision. In that regard, the Divisional Court stated at para. 29 in Kanareitsev v. TTC Insurance Company Limited, 2008 CanLII 26262 that "[p]articularly 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 court went on to note at para. 32 that while the arbitrator in that case "may not have engaged in a detailed analysis of each and every aspect of the major points in issue, her reasons refer to the principal evidence she relied upon and provide a justification for her conclusions."

The Arbitrator found that this was a mild whiplash accident. He had evidence before him to support that conclusion. He heard D.F.'s testimony and evidence and reviewed the evidence before him. He found on page 5 of his decision that "[t]he contemporaneous notes and reports of health practitioners indicate [D.F.'s] self-portrayal of her physical and psychological condition arising from this accident is not reliable." This finding serves as a backdrop to the reports by the medical practitioners submitted by D.F., since after considering the medical evidence presented by D.F., the Arbitrator wrote:

The strength of D.F.'s medical opinion is critical to the causation issue as she was admittedly not fully functional before the accident. D.F.'s activities before the accident are quite similar to her activities after the accident, and this is, in my view, not a situation where the event overwhelmed her as a vulnerable person.

D.F. may very well believe that the accident caused her to significantly deteriorate, but I base my decision on the lack of compelling medical evidence and that D.F. did most of the same activities before and after the accident. I find, on a balance of probabilities, that the accident did not cause or significantly contribute to D.F.'s psychological or physical condition, and that she is not entitled to her claimed accident benefits under the Schedule. [Footnotes omitted.]

The Arbitrator was entitled to make that ruling based on the evidence before him and in light of his findings regarding the severity of the accident and the reliability of D.F.'s testimony.

The Arbitrator referred to the principal evidence he relied upon and provided a justification for his conclusions.

Regarding causation, D.F. submits that the Arbitrator incorrectly applied the material contribution test when, in referring to Dr. Fiati's report, he found that her use of the word "could" did not provide an opinion that the accident was a significant contributing factor in D.F.'s current condition. D.F. submits that the relevant test is to show that the accident was a material contribution, meaning "some" contribution, and Dr. Fiati's opinion met that test. However, there is a difference between an opinion that something could have contributed to a condition and an opinion that something did contribute – at least in part – to a condition. The Arbitrator recognized that more than a mere possibility was needed to meet the causation test.

D.F. submits that her need for a neuropsychological assessment was among the issues to be determined and the Arbitrator erred in not doing so. It is not clear to me how a further neuropsychological assessment could even be claimed, in light of the findings made in the first arbitration that a neuropsychological assessment is unnecessary. Access to the justice system should not mean that, if you lose one claim for a particular benefit, you simply obtain another opinion and seek the same benefit in a further proceeding. In any event, the decision turned on causation, so whether or not the Arbitrator dealt with a particular claim for a neuropsychological assessment is irrelevant. Having made the finding on causation, he could have simply dismissed all of D.F.'s claims. There is no reason to return the matter for a further hearing simply to deal with the necessity of a neuropsychological assessment, in light of the Arbitrator's chief finding.

The same applies to the other issues D.F. raises about the Arbitrator's rulings. For instance, D.F. submits that the Arbitrator erred when he found that D.F's expense claim for travel to counselling was unsupported by evidence linking the transit receipts to that counselling. She submits that the Arbitrator erred in denying her claim for attendant care benefits because he relied on the form submitted by Ms. Jennifer Saunders (Wawanesa's occupational therapist), who reported that while D.F. had difficulty washing and combing out her hair, she had no other significant problems respecting home or personal care activities and did not recommend payment of attendant care benefits. D.F. submits that the Arbitrator erred in not requiring Ms. Saunders to attend for cross-examination on her report. D.F. also submits that the Arbitrator erred in not directly addressing her claim for a personal organizer.

However, in light of the Arbitrator's principal finding on causation, these submissions are moot.

D.F. submits that the Arbitrator only addressed the bias issue in his decision, so she was unable to address it for the purposes of appeal. I have difficulty understanding this submission, but regardless, during the arbitration hearing she had already written to the Director under s. 281.1(12) of the Insurance Act, and he did not find the Arbitrator biased. Furthermore, the Arbitrator then set out in some detail his consideration of the bias issue. I find that D.F. was therefore able to see how he reached his conclusions for this appeal.

D.F. submits that I should order complete production of the insurer's file. First, I see no error in the way Arbitrator Rogers dealt with the request for the file in the original motion. Second, my role as a Director's delegate is to determine whether there has been an error of law, not to make findings of fact, so the file could only be relevant if I ordered a rehearing. Third, D.F. seeks the file in order to find evidence of the insurer's mishandling of the file, which is only relevant to a special award. As Arbitrator Sampliner found that D.F. is entitled to no benefits, there is no basis for a special award. Given those facts, the rest of the file is irrelevant.

D.F. submits that Arbitrator Sampliner erred in his assessment of the legal fees, specifically the hours claimed by counsel and the disbursements. D.F. notes that counsel claimed for six full days of hearing when one of those days was short. However, considering the length of the hearing and the arbitrator's latitude in determining the fees for hearing preparation and attendance, his award of an overall 90.6 hours was reasonable and provides no reason for me to intervene.

Regarding the disbursements, D.F. submits that Arbitrator Sampliner allowed Wawanesa's expenses in obtaining the Riverfront Medical file, yet Arbitrator Rogers had held that Wawanesa should pay. However, what Arbitrator Rogers ruled was "that the file should be produced at Wawanesa's expense, subject to further order by the hearing arbitrator."

D.F. submits that she did not have sufficient time to present her case. In that regard, she submits that Dr. Fiati's evidence was improperly excluded. However, from Dr. Fiati's affidavit, it appears that Arbitrator Sampliner suggested that she could give evidence by way of a report, which is something the Commission encourages. Nor am I persuaded that it would have made any material difference to add extra days to hear from, say, Ms. Lloyd. The Arbitrator had sufficient evidence from both sides to determine the causation issue, which was the decisive issue. The Arbitrator found that D.F. sustained a mild neck/shoulder whiplash injury. Given that background, the over five days allowed for the hearing is approximately twice as long as one would expect. On top of that, D.F. had seven days in the original arbitration, and the two days devoted to appeal hearings. Thus, she has had over 14 days to present her case for benefits arising from what the Arbitrator found to be a "mild neck/shoulder whiplash injury." The Arbitrator was entitled to control the proceedings to keep the case from going on even longer. The resources for holding hearings are not infinite, and D.F. cannot expect to have unlimited time to present her case. D.F. has had a reasonable chance to present her case, but it was not accepted by the Arbitrator. None of the alleged procedural errors warrant any further hearing days.

In conclusion, I see no reason to intervene in the motion order of Arbitrator Rogers. He set out a basis for why the transcripts from the first arbitration could not be admitted into this hearing in any event, and he set out why he was not prepared to review the insurer's file to determine what was and what was not covered by privilege.

I also see no reason to intervene in the orders of Arbitrator Sampliner. As noted above, he found that D.F. suffered a mild whiplash injury, that her self-portrayal of the effects of the accident on her was not reliable, and that the medical evidence was not compelling. Accordingly, he referred to the principal evidence he relied upon and provided a justification for his conclusion that D.F. has not proved causation. Therefore, her accident benefit claims were dismissed. Finally, his assessment of expenses was within an acceptable range for counsel time for preparation for and attendance at a hearing.

Accordingly, D.F.'s appeal of the various arbitration orders is dismissed.

IV. EXPENSES

Pursuant to s. 282(11) of the Insurance Act, an arbitrator "may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations." Subsection 283(7) of the Act provides that ss. 282(10) to (11.2) apply with necessary modifications to appeals. Subsection 12(2) of Ontario Regulation 664, R.R.O. 1990, as amended, in turn provides that for the purpose of s. 282(11) of the Act an arbitrator or delegate shall consider only the criteria set out therein for "the purposes of awarding all or part of the expenses incurred in respect of an arbitration [or appeal] proceeding."

Although normally at the end of an appeal decision I ask for submissions on entitlement to and the quantum of expenses, I can see no possibility of D.F. being found entitled to her appeal expenses, in light of the criteria. Criterion 1 is each party's degree of success in the outcome of the proceeding. D.F. was entirely unsuccessful and Wawanesa was entirely successful. Regarding any issues about access to justice, to whatever extent that is still a factor, as was stated in Stephenson and Economical Mutual Insurance Company, (FSCO P07-00001, April 22, 2008), when it comes to appeal expenses, "it has long been accepted that concerns about access to justice are different because there already has been a full hearing on the merits." Although D.F. raised many issues, the matter essentially related to findings of fact, so no novel issues were raised in the proceeding (criterion 3). Criterion 4 is the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders. I set out in some detail the delays it took to get from the initial filing of the notice of appeal to the hearing. Furthermore, D.F. failed to comply with my orders, including sending submissions after the hearing, when I had already ordered that no further submissions would be allowed. That is why I say it is impossible for D.F. to be found entitled to her appeal expenses.

Accordingly, any expense hearing, if it is required, will only deal with whether and to what extent Wawanesa should receive its expenses.

If the parties are unable to agree about Wawanesa's expenses of this appeal, an appeal expense hearing shall be requested within 60 days of the date of this decision in accordance with Rules 79 and 81.1 of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011).

The request shall be accompanied by Wawanesa's Bill of Costs describing the expenses claimed, the services received and the costs, as well as submissions regarding entitlement to and/or the quantum of such expenses.

December 15, 2011

David Evans Director's Delegate

Date

Footnotes

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