Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 94

Appeal P12-00007 – P12-00021

OFFICE OF THE DIRECTOR OF ARBITRATIONS

INTACT INSURANCE COMPANY AND BELAIR INSURANCE COMPANY INC. Appellants

and

IQRA HUSSEIN AWEYS, MUNIRA AWEYS, HENRICK ARCHER BENJAMIN, ANNMARIE COLQUHOUN, NAJIB DAWOOD, DOUGLAS FACEY, SERGEI FORISIUK, CHARMAINE MARIE GREEN, VOLODYMYR HORBAN, ABU ABDULKADIR JEYLANI, RUBEN LOWNDES, OSMAN MOHAMED, DENNYS EDUARDO QUEZADA, EDWIN QUEZADA-BARQUERO AND CARMEN WILSON-DURSTON Respondents

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. Eric K. Grossman, for the Appellants, Intact Insurance Company and Belair Insurance Company Inc. Mr. Marko Djukic for the Respondents, Iqra Aweys, Munira Aweys, Henrick Archer Benjamin, Annmarie Colquhoun, Najib Dawood, Douglas Facey, Charmaine Marie Green, Volodymyr Horban, Abu Abdulkadir Jeylani, Ruben Lowndes, Osman Mohamed, Dennys Eduardo Quezada, Edwin Quezada-Barquero and Carmen Wilson-Durston Mr. Jonathan M. Burton for the Respondent, Sergei Forisiuk

HEARING DATE: June 12, 2012

PRELIMINARY APPEAL ORDER

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

The ground of these appeals that the Arbitrator erred in law in denying a stay based on a concurrent court action is not rejected pursuant to Rule 50.2 of the Dispute Resolution Practice Code (Fourth Edition - Updated August 2011).
The further ground of appeal in Intact Insurance Company and Iqra Hussein Aweys, (FSCO P12-00007) and Intact Insurance Company and Munira Aweys, (FSCO P12-00008) that the Arbitrator erred in law in denying a stay, based on non-attendance at examinations under oath requested under subsection 33(1.1) of the Schedule, is rejected.
The Appellants’ request for a stay of the Arbitrator’s Orders is denied.
The legal expenses of this preliminary appeal decision are deferred to the conclusion of these appeals, subject to any further or other order of an appellate officer.

June 18, 2012

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND AND NATURE OF THE APPEAL

Following their respective motor vehicle accidents, each of these fifteen Respondents sought statutory accident benefits under the Schedule¹ from one or the other of the Appellants, their first-party automobile insurer. Following separate denials of specific benefits and unsuccessful mediation in each case, the Respondents applied individually for arbitration at the Commission.

At arbitration, the Appellants brought a motion that each of these fifteen separate arbitrations be stayed under sections 21 and/or 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) until a decision is reached in a court action issued June 6, 2011 by the Appellants (and two other insurers) in the Ontario Superior Court of Justice against Assessment Direct Inc., Osler Rehabilitation Centre Inc. and Metro Rehabilitation Centre Inc. (the “Defendants”), a separate numbered company and specified officers and/or directors of the corporate Defendants.

Section 21 permits a tribunal to adjourn a hearing where it is satisfied the adjournment is required to permit an adequate hearing to be held. Section 23 allows a tribunal to make such orders or give such directions it considers proper to prevent abuse of its processes.

In the alternative, the Appellants sought a stay of all issues in the arbitration proceedings related directly or indirectly to the Defendants.

The court action alleges that the Defendants engaged in a pattern of misconduct, in part, in submitting invoices pertaining to 217 insured persons² (including the fifteen Respondents) for medical services that were not performed, were overcharged or the Defendants knew were not reasonable or necessary. The Plaintiffs seek, in part, significant damages and a declaration they are not required to pay any future or outstanding invoices or bills submitted by the Defendants.

The Arbitrator states in his decisions, and the Appellants agree, that none of the insured persons are named as defendants in the court action, nor is any insured person alleged to have conspired with the Defendants in the alleged wrongful conduct.

At the motion, the Appellants argued, in part, that a stay of all fifteen arbitrations was warranted as the more comprehensive court action would better expose a pattern of misconduct by the Defendants than multiple single arbitrations. The omnibus court action would also save time and expense for the Appellants as well as the Respondents, and avoid inconsistent findings.

In two proceedings, Iqra Hussein Aweys and Intact Insurance Company, (FSCO A10-004067), and Munira Aweys and Intact Insurance Company, (FSCO A11-000012), the Appellant Intact Insurance Company (“Intact”) also sought a stay of the arbitration hearing based on these two Respondents not attending subsection 33(1.1) of the Schedule examinations under oath.

The motion was heard by Arbitrator Feldman (the “Arbitrator”). His March 19, 2012 decisions denied the requested stays. Finding a stay to be an extraordinary remedy, especially when there is no alleged misconduct by the Respondents themselves, the Arbitrator held that the Appellants had failed to meet their evidentiary onus to establish the possibility of either irreparable harm or abuse of the Commission’s process if a stay were refused.

Regarding non-attendance at examinations under oath, the Arbitrator found that the Appellants had failed to establish that a stay of those proceedings was an appropriate remedy.

Fifteen Notices of Appeal were filed April 12, 2012 seeking, as initial relief, leave to appeal and a stay of the Arbitrator’s orders. My April 18, 2012 acknowledgement letter set out three preliminary appeal issues:

Should these fifteen appeals be combined and heard at the same time?
Should the appeals be rejected pursuant to Rule 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition - Updated August 2011) (the “Code”), on the basis they are from preliminary or interim orders that do not finally decide the issues in dispute?
If the appeals are accepted at this time, should the Arbitrator’s orders be stayed under subsection 283(6) of the Insurance Act, R.S.O. 1990, c. I. 8?

Rule 30 of the Code addresses combining two or more Applications for Arbitration. There is no specific equivalent for appeal proceedings. Rule 1.2, however, provides that where something is not specifically provided for in the Code, the practice may be decided by referring to similar Rules.

Having provided notice as required under Rule 30.1 of the Code and having received no objection from any party to combining these appeals, my May 15, 2012 letter decision combined the fifteen appeal proceedings, to be heard at the same time.

Applying the criteria of Rule 30, I was persuaded that all of the appeals had a common issue or question of law, fact or policy, namely, whether the Arbitrator had erred in law in not staying the arbitrations based on the concurrent court action. Two appeals had a further common issue of whether the Arbitrator had erred in law in not staying the hearing for non-attendance at examinations under oath. Further, combining these appeals would result in the quickest and least expensive means of dealing with these appeals.

Upon reading the written submissions filed, and upon hearing oral argument, my decision on the remaining preliminary issues follows.

II. ANALYSIS

Should these appeals be accepted at this time?

The Arbitrator’s decisions are preliminary orders. Rule 50.2 of the Code states that a party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute have been finally decided, unless ordered otherwise. Under Rule 51.2(c) of the Code, an appeal may be rejected if it is from a preliminary or interim order that does not finally decide the issues in dispute.

Delegate Makepeace, in Allstate Insurance Company of Canada and Torok, (FSCO P01-00021, May 29, 2001), held that the purpose of Rule 50.2 is to:

… facilitate the most cost-effective resolution of disputes by minimizing the time and money spent on procedural or collateral matters. The decision whether to hear an appeal of a preliminary order is discretionary … the over-arching principle guiding the exercise of the discretion is that the rule “should be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute.” The criteria to be considered include the apparent strength of the appeal, the importance or novelty of the issue raised, and whether rejecting the appeal or hearing it will prejudice either party.

Allstate Insurance Company of Canada and Al-Obaidi, (FSCO P99-00009, May 2, 2000), notes that the Code’s general thrust is to defer appeals from preliminary or interim orders until the arbitration is over. Appeals have been accepted where it makes sense to do so before the expense and time of a full arbitration hearing are incurred. The importance of the issues, the parties’ preference, whether the decision departs from prior case law and whether hearing the appeal would significantly save time and expense or streamline the process in some way, are important considerations.

The Appellants seek leave to bring these appeals prior to all of the issues in dispute being finally determined. Regarding the concurrent court action, they submit that the Arbitrator erred in law, in part, in failing to correctly apply RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, by not acknowledging that a monetary loss (the excessive time and expense of addressing the multiple arbitration proceedings) can be considered an irreparable harm warranting the requested stay. The Appellants further argue that these appeals are important, addressing fundamental concerns regarding fraud and abuse of process. Not accepting these appeals at this time would effectively extinguish the Appellants’ right to appeal.

The Appellant Intact submits that Aviva Insurance Company of Canada v. Balvers, 2007 CanLII 17193 (ON SC) and Echelon General Insurance Company v. Henry, 2011 ONSC 3673, confirm the mandatory requirement that insured persons attend examinations under oath. It submits that a stay is necessary to prevent an abuse of the adjudicative process, which would result if the two Respondents were allowed to skirt their obligations under the Schedule.

The Respondents represented by Mr. Djukic argue that the Arbitrator did not err in law and to accept these appeals effectively grants the Appellants the extraordinary stay remedy they seek. The Respondent Forisiuk relies on these submissions.

In determining these preliminary appeal issues, I note the following chronology:

Accident Dates:

July 5, 2009: Colquhoun August 2, 2009: Forisiuk August 9, 2009: Lowndes September 20, 2009: Green September 23, 2009: Quezada and Quezada-Barquero October 18, 2009: I.H. Aweys, M. Aweys, and Jeylani November 7, 2009: Dawood December 10, 2009: Benjamin April 19, 2010: Facey, Wilson-Durston May 12, 2010: Horban May 28, 2010: Mohamed

At oral submissions, the parties were unable to provide the dates of the Applications for Mediation. However, the following was confirmed:

File	Date of Report of Mediator	Date the Application for Arbitration was received by the Commission
I.H. Aweys	December 14, 2010	December 31, 2010
M. Aweys	December 14, 2010	January 4, 2011
Benjamin	June 10, 2011	July 15, 2011
Colquhoun	March 18, 2011	April 20, 2011
Dawood	April 29, 2011	May 25, 2011
Facey	August 5, 2011	August 23, 2011
Forisiuk	March 1, 2011	March 22, 2011
Green	February 16, 2011	March 9, 2011
Horban	September 6, 2011	November 1, 2011
Jeylani	December 14, 2010	December 31, 2010
Lowndes	March 1, 2011	March 23, 2011
Mohamed	September 22, 2011	November 1, 2011
Quezada	March 15, 2011	April 19, 2011
Quezada-Barquero	March 15, 2011	May 3, 2011
Wilson-Durston	August 5, 2011	August 23, 2011

The present status of these matters in arbitration is as follows:

Hearings scheduled:

Hearing Dates	File(s)	Date hearing set	Hearing Days Scheduled	Witnesses identified in the Pre-Hearing letter
July 9-12, 2012	I.H. Aweys, M. Aweys and Jeylani	July 14, 2011	4	None
January 14-17, 21-24, 28-31, 2013	Dawood	Feb. 13, 2011	12	None
June 10-13, 2013	Lowndes	April 3, 2012	4	For the insured: 4 lay witnesses, a hospital representative and 10 medical doctors. For the insurer: 25 medical personnel at Universal and Assessment Direct
June 24-27, 2013	Colquhoun	March 14, 2012	4	For the insured: the insured, 3 service providers and a chiropractor. For the insurer: occupational therapist, psychologist and orthopaedic surgeon
July 22-25, 2013	Wilson-Durston	May 10, 2012	4	None
July 29-Aug.1, 2013	Facey	May 10, 2012	4	None
Sept. 23-26, 2013	Benjamin	April 23, 2012	4	None

Pre-Hearings scheduled:

September 25, 2012: Mohamed October 23, 2012: Forisiuk and Green

Pre-Hearings to be scheduled:

Horban Quezada Quezada-Barquero

The Appellants submit that at the pre-hearing discussions they, unsuccessfully, routinely requested longer hearing time. In Benjamin, a preliminary issue hearing is scheduled for October 24, 2012 on whether “the Insurer is entitled to an Order that the Applicant attend an examination under oath pursuant to s. 33(2) of the Schedule.”

The issues in dispute under the Schedule in these matters, other than medical/rehabilitation/cost of examinations expenses (usually fairly sizeable, where itemized) relating to the Defendants, are as follows:

File	Where the issues set out	Attendant Care	Housekeeping and Home Maintenance	Caregiver	Income Replacement Benefits
I.H. Aweys	pre-hearing letter	Oct. 2009 to Oct. 2011	Oct. 2009 to Oct. 2011
M. Aweys	pre-hearing letter	Oct. 2009 to Oct. 2011	Oct. 2009 to Oct. 2011	Oct. 2009 to Oct. 2011
Benjamin	pre-hearing letter	Dec. 2010 to Dec. 2011	Dec. 2010 to Dec. 2011	to Dec.10, 2011
Colquhoun	pre-hearing letter	July 2009 to July 2011	July 2009 to July 2011	July 2009 to July 2011
Dawood	pre-hearing letter	Nov. 2009 to Nov. 2011	Nov. 2009 to Nov. 2011
Facey	pre-hearing letter	ongoing from Apr. 19, 2010	ongoing from Apr. 19, 2010
Forisiuk	arbitration application	noted as a dispute	ongoing from August 2009	noted as a dispute
Green	arbitration application	ongoing from Sept. 2009	noted as a dispute	noted as a dispute
Horban	arbitration application	ongoing from May 2010	ongoing from May 2010
Jeylani	pre-hearing letter	Oct. 2009 to Oct. 2011	Oct. 2009 to Oct. 2011
Lowndes	pre-hearing letter	ongoing from August 2009	ongoing from August 2009	noted as a dispute
Mohamed	arbitration application	ongoing from May 2010	ongoing from May 2010	ongoing from June 4, 2012
D.E. Quezada	arbitration application	ongoing from Sept. 2009	ongoing from Sept. 2009
E. Quezada-Barquero	arbitration application	ongoing from Sept. 2009	ongoing from Sept. 2009	ongoing from Sept. 2009	noted as a dispute
Wilson-Durston	pre-hearing letter

Mr. Steve White, in his affidavit in support of the arbitration motion, at paragraph 79, states his belief that the court Defendants are the “true Applicants and are the controlling minds of the arbitration claims, and that the claims of the Claimants for specified benefits are ancillary, subservient and incidental to the claims of the Defendants.”

In oral submissions, the Appellants confirmed that the court action, presently at the pleadings stage, will not determine attendant care, housekeeping, caregiver or income replacement benefit entitlement of the 217 insured persons noted in Schedule “A” of the Statement of Claim, including these Respondents. Nor is it anticipated that the Respondents will necessarily be called to give evidence at the court trial. The Appellants, however, are hopeful that the Court decision, not anticipated before late 2013 at the earliest, may provide general comments casting aspersions on the credibility, viability and authenticity of the reports generated by the Defendants in support of these categories of claims.

Without deciding the matter, I presently have questions specifically as to the apparent strength of this aspect of the appeals, that the attendant care, housekeeping, caregiver and/or income replacement benefit claims individual to each Respondent be stayed pending the completion of a court action that will not, it is agreed, determine these issues. At the current juncture, this would seem to impede the expeditious and cost efficient resolution of these claims on their respective merits at a full and fair hearing in a specialized alternative dispute resolution system procedurally fine-tuned to these types of disputes (including the full participation of insured persons), rather than the reverse. Indeed, in their motion materials the Appellants sought, in the alternative, a stay only of those issues related directly or indirectly to the Defendants in the court action.

Nonetheless, I am persuaded to exercise my discretion under Rule 50.2 of the Code to hear, at this time, the ground of appeal common to all the appeals that the Arbitrator erred in his preliminary orders not to stay the arbitration proceedings notwithstanding the concurrent court action. I do so for the following reasons:

This aspect of the appeals raises an important question of law, specifically the application, in the context of an administrative tribunal operating under the authority of the SPPA, of the three-part test in RJR-MacDonald Inc. v. Canada (Attorney General) pertaining to interlocutory injunctions. This includes the application of the requirement that the Appellants demonstrate that irreparable harm will result if the stay is not granted.
The appeals thus address questions fundamental to this tribunal process regarding the application of Rule 1.1 of the Code that these Rules be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.
Unlike attendant care, housekeeping, caregiver or income replacement benefits, medical/ rehabilitation and cost of examination benefits are the subject matter of the court action.
The issue regarding the concurrent court action and these arbitrations is novel.
Not accepting these appeals prior to the final determination of the arbitration proceedings renders this issue moot in all fifteen proceedings.
The advice that there are 55 further arbitrations advanced by insureds listed in Schedule “A” in the Statement of Claim, with others anticipated, underlies the importance of the issue raised. Hearing these appeals at this time may minimize or significantly reduce the time and money spent on similar procedural or collateral matters in other cases.
This appeal should be concluded by the end of the year. Twelve of the fifteen arbitrations are either not scheduled for a hearing before 2013 or a hearing is yet to be scheduled. As set out above, the current hearings were set for a date approximately a year subsequent to the pre-hearing discussion. Accepting these appeals should not prejudice these Respondents in any delay of a hearing date, should the appeals be ultimately rejected.
Three arbitrations are scheduled for a single hearing starting July 9, 2012. As set out below, it is questionable that the hearing can conclude in the scheduled four days, even with a modest witness list and no further issues emerging. A pre-hearing discussion in those cases should be resumed, prior to the hearing, to address the most appropriate and least prejudicial use of the limited assigned hearing days.

I am not accepting the ground of appeal in Intact Insurance Company and Iqra Hussein Aweys, (P12-00007) and Intact Insurance Company and Munira Aweys, (P12-00008) that the Arbitrator erred in law in not staying the hearings for non-attendance at examinations under oath requested under section 33 of the Schedule.

The Appellant Intact states that the Arbitrator correctly set out, at page nine of his decisions in these two matters, its position that the Appellant had an “absolute right to conduct [examinations under oath pursuant to section 33 of the Schedule] before or after termination of benefits or commencement of litigation (including arbitration proceedings) and that an applicant should not be permitted to avoid such an examination.”

Subsection 33(2) of the Schedule provides that “the insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with” a request to submit to an examination under oath, in compliance with section 33. Subsection 33(3) states that subsection 33(2) of the Schedule does not apply where the insurer either fails to comply with its obligations under subsections 33(1.3) or (1.4), or interferes with the insured person’s rights to be represented, as set out in subsection 33(1.2).

Intact submits that the remedy for non-attendance at examinations under oath provided by the Legislature in subsection 33(3) is insufficient. An insurer’s absolute right to such an examination should not be mired by incorrect notice or some other technical deficiency. Thus, Intact is also entitled to seek other remedies, including an indefinite stay of the hearing, independent of Rule 33. In any event, Intact argues that while it did not directly seek the prescribed section 33 remedy, that alternative relief was implicitly within the Arbitrator’s power to order.

The two Respondents argue the remedy for non-attendance at an examination under oath is set out in Rule 33 and that this issue was never before the Arbitrator. Intact states that the Arbitrator’s further statement on page nine of his decisions, that the insurer “takes the position that it is therefore appropriate to stay this proceeding until such time as the Applicant submits to the requested examination under oath,” is not entirely correct. Rather, the issue set out in the July 11, 2011 pre-hearing letter was that hearings be simply stayed due to non-compliance.

Given the relief sought (it not necessarily being pertinent if the Respondents subsequently agree to attend at examinations under oath), there is a question whether the focus of this ground of appeal is to assist the broader stay request rather than raise a genuine separate question of law. Indeed, the Arbitrator states in his two decisions, at page 13, that “Counsel who appeared on this motion spent very little time on this issue.”

Second, it is difficult to see how the Arbitrator erred in law in failing to decide the issue of the specific remedy set out in subsection 33(2), when such relief was not sought. As the issue, as the Respondents argue, has not yet been addressed, it still remains open for first-level adjudication.

Further, the Arbitrator’s decisions were consistent with prior case law, including Troubitsine and TTC Insurance Company, (FSCO Appeal P09-00019, January 14, 2010). Troubitsine cited Delegate McMahon, in CAA Insurance Company (Ontario) and Sandhu, (FSCO P01-00044, January 18, 2002), that the Commission’s:

… processes do not include examinations for discovery. An insured person who elects to arbitrate, instead of bringing a civil action, foregoes the opportunity to conduct a pre-hearing examination of one of the insurer's representatives. But correspondingly, he is not subjected to such an examination at the behest of the insurer. The insured person’s election must be honoured and given meaning.

Troubitsine noted that the “introduction of examinations under oath in the adjusting process under the Schedule did not create a new procedural right of examinations under oath in the arbitration process under the Code.” In other words, there is no right of examination under oath independent of section 33 of the Schedule. The consequence of this alternative dispute resolution system intended to be more expeditious and less expensive is that insured persons have no right of pre-hearing examination under oath of insurers. Observing that the “consequences of non-compliance in the Schedule are significant, namely, the non-payment of benefits,” I reviewed in Troubitsine the importance of the procedural safeguards in the Schedule for insured persons.

In Balanki and Zurich Insurance Company (Commercial Business), (FSCO A04-002286, April 11, 2005), Arbitrator Muir held that “where the legislative provision provides for an express remedy, a statutory decision maker has limited jurisdiction to fashion other remedies.” In Salah and State Farm Mutual Automobile Insurance Company, (FSCO A04-000210, November 2, 2005), Arbitrator Miller, following Balanki, held she had no jurisdiction to adjourn an arbitration hearing as a remedy where an insured failed to attend an examination under oath.

In neither Balvers nor Echelon v. Henry, cited by the Appellants, did the Court order a stay of the trial. In both cases, the insured attended at examinations under oath, but refused to answer certain questions. In Balvers, finding that the questions asked were “within the scope of matters relevant to his entitlement to benefits,” Stewart J. held that “Balvers is required under the Schedule to submit to the examination under oath or risk losing payment of benefits until he does comply.”

In Echelon v. Henry, finding that “the questions asked of Ms. Henry related to her application for, and receipt of, benefits from State Farm are matters relevant to her entitlement to benefits,” Corrick J. held that “Echelon is not liable to pay any benefits to Ms. Henry [under the Schedule] until such time Ms. Henry makes herself reasonably available for an examination under oath pursuant to s. 33(1.1)” of the Schedule.

These decisions recognize that subsection 33(2) of the Schedule stops benefits, not proceedings, and that, if benefits were being paid, they shall be resumed, under subsection 33(4), upon an insured’s compliance. Further, under paragraph 33(4)(a), if the insured provides a reasonable explanation for the delay in complying, the insurer shall pay all amounts that were withheld during the period of non-compliance. These issues have not been addressed in these arbitrations.

The Appellant has the onus of establishing that an appeal from an interim or preliminary decision that does not finally decide the issues in dispute should be accepted. Assessing the apparent strength of this further ground of appeal, its lack of novelty and that the Arbitrator did not depart from prior case law, I am not persuaded to accept this ground of appeal.

Should a stay be granted?

Having determined that these appeals should be, in part, accepted at this time, I turn to the question of the requested stay of the Arbitrator’s orders. Subsection 283(6) of the Insurance Act states that an appeal does not stay the order of an arbitrator, unless decided otherwise. The leading case of Guardian Insurance Company of Canada and Armstrong, (FSCO P00-00037, July 20, 2000), adopted the following criteria on whether to grant a stay:

The bona fides of the appeal;
The substance of the grounds for appeal; and,
The hardship to the respective parties if the stay is granted or refused.

The Appellants state that while not all of the insured persons listed in Schedule “A’’ of their Statement of Claim have filed for Arbitration, 70 have, including these Respondents. Each claim, they state, will take two to three weeks to hear, including examination of each of the Defendants’ service providers. Not to stay these proceedings will lead to a long and cumbersome process, and inconsistent findings.

The Appellants submit that the Respondents have not adduced any evidence as to any prejudice they may face, while the Appellants have adduced significant evidence that the Respondents are “generally vehicles through which the claims are advanced and to which they have usually no legitimate stake or economic interest in the claim.” By not permitting a stay of the proceedings, the Appellants submit that they are being denied the right to address the fundamental abuse and prevalent fraudulent activity that is the overriding focus of insurance regulation today.

The Respondents argue that if a stay were granted, prejudice may be inferred in denying them prompt payment of their benefits and subjecting their adjudication to a court action to which they are not parties.

My authority under subsection 283(6) of the Insurance Act is to stay the order of an arbitrator. The Arbitrator’s orders simply dismissed the motions. The Appellants acknowledge my apparent lack of authority under subsection 283(6) to stay the arbitrations at this point in the appeals.

In any event, the Appellants acknowledge that 12 of the 15 arbitrations are not scheduled for a hearing until, at the earliest, January 2013, prior to which these appeals should be concluded. The Appellants are not opposed to the remaining pre-hearings proceeding. Hence, to this extent, a stay under subsection 283(6) is not required.

The claims of three Respondents are scheduled to be heard over four days in July 2012. There are 13 different issues (excluding interest and legal expenses) including attendant care, housekeeping and caregiver benefits, as well as medical benefits and the cost of examinations.

The July 15, 2011 pre-hearing letter for these Respondents states that the “parties did not provide the names of their witnesses, although pursuant to Rule 33 one of the purposes of a pre-hearing is to identify witnesses.” Rule 41.1 of the Code provides that every party must provide the other parties with the names of the witnesses it intends to call and the names of persons it requires to attend for cross-examination on a report, at least thirty days before the first day of the hearing.

At oral appeal submissions, the parties were presently unable to produce any notices of witnesses. The parties disagreed whether the hearing could be completed in the scheduled four days. The possibility of a further preliminary arbitration issue was raised.

As set out above, the substance of the appeals regarding the attendant care and other personal claims that will not be determined in the court action is presently, specifically, questionable. The three claims to be heard in July have been in arbitration roughly a year and a half and in mediation at the Commission for some unknown period before that. The goal of Rule 1.1 of the Code is that disputes be expeditiously resolved. To stay a hearing on the merits of such claims means, considering the history of these matters, realistically another year’s delay.

Subsection 25.0.1 of the SPPA provides that a “tribunal has the power to determine its own procedures and practices.” It is questionable that the pending July 2012 arbitration hearing, with three claimants and thirteen issues, would be completed in the allotted four days, even with a limited witness list and no further issues arising. Further, proceeding with the medical/ rehabilitation and cost of examination claims that are the subject matter of the court action would render the appeal moot in these three matters.

Rule 34 of the Schedule allows a pre-hearing to be resumed before an arbitrator. A fulsome discussion prior to the hearing, which was not possible during appeal submissions, should address how to make the most appropriate and least prejudicial use of the limited hearing days available. I leave it to the parties to take the initiative in requesting such resumption.

In the interim, I set the following time lines for the exchange of appeal written submissions on the ground of appeal allowed:

Pursuant to Rule 54.1 of the Code, the Appellants have thirty days from the date of this decision to serve on the Respondents and file with the Commission (with a Statement of Service in Form F) their written submissions.
The Respondents, pursuant to Rule 54.3 of the Code, have twenty days from the date the Appellants’ written submissions are received to serve on the other parties and file with the Commission (with a Statement of Service in Form F) their written submissions.

At oral submissions, the Appellants requested that fresh evidence be received in the form of a recently sworn affidavit of a medical practitioner pertinent to the issue of the court action. Prior notice was not provided. The Respondents objected to my receiving this fresh evidence.

Budd and Personal Insurance Company of Canada, (FSCO P99-00032, January 8, 2000), is the leading case on whether fresh evidence should be allowed on appeal. Having accepted these appeals regarding whether the Arbitrator erred in law in not staying these arbitrations pending a decision being reached in the concurrent court action, the question of whether this fresh evidence should be received can be more fully addressed in the written submissions that follow.

III. EXPENSES

The legal expenses of this preliminary issue decision are deferred to the conclusion of these appeals, subject to any further or other order of an appellate officer.