Bhupinder Singh Grewal v. AIG Commercial Insurance Company of Canada, 2014 ONFSCDRS 167

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 167 Appeal P14-00032

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BHUPINDER SINGH GREWAL Appellant

and

AIG COMMERCIAL INSURANCE COMPANY OF CANADA Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. Frank J. Burns for the Appellant, Mr. Bhupinder Singh Grewal Mr. J. Claude Blouin for the Respondent, AIG Commercial Insurance Company of Canada

HEARING DATE: October 7, 2014 by telephone conference call Oral reasons given October 7, 2014

PRELIMINARY APPEAL ORDER

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

1. This motion that the Appellant be required to order a copy of the transcript of his evidence at arbitration is dismissed.

2. The legal expenses of this preliminary conference are deferred to the conclusion of this appeal, subject to any further or other order of an appellate officer.

October 10, 2014

Lawrence Blackman Director’s Delegate

REASONS FOR DECISION

I. BACKGROUND AND ANALYSIS

Pursuant to Rule 57 of the Dispute Resolution Practice Code (Fourth Edition – Updated January 2014) (the “Code”), a preliminary conference was held in this matter on October 7, 2014 by telephone conference call arranged by the Commission. The preliminary conference was arranged to address preliminary procedural issues, specifically regarding the transcripts of the arbitration held before Arbitrator Feldman (the “Arbitrator”), and any other appropriate matters.

The August 21, 2014 Notice of Appeal from the Arbitrator’s August 7, 2014 decision stated that the Appellant had ordered the transcript of Dr. Connell’s evidence. The September 2, 2014 Response to Appeal stated, in part, that the Appellant should order the evidence of all of the witnesses who testified “in order to get a full appreciation of the record before the arbitrator upon which he rendered his decisions.”

The Respondent’s September 29, 2014 letter, however, asked for an order that the Appellant produce the transcript of his own evidence “as the Arbitrator, in his Decision, makes a number of comments on the Applicant’s vague testimony and the inconsistent testimony with respect to the post-accident employment which the Applicant engaged in.” At the preliminary discussion, the Respondent confirmed it was only requesting that the Appellant’s evidence be ordered.

The Appellant responds, in part, that the Respondent is free to order the Appellant’s evidence or that of any other witness, if it so requires. The Appellant’s September 12, 2014 letter states that he does not seek to rely on the transcripts the Respondent requests, and that he is unemployed, unable to work and has no financial resources to pay for the further transcripts.

My August 29, 2014 letter set out Rule 67 of the Code regarding bringing motions. My September 19, 2014 letter inquired whether the Respondent was bringing a motion regarding the transcripts. The Respondent requested that its motion be heard as part of this preliminary discussion. The Appellant agreed.

The Respondent’s September 29, 2014 letter states that the appeal is restricted to the Appellant’s claims for ongoing income replacement benefits (“IRBs”) and the $56,655 (US) treatment plan regarding a facility named Sierra Tucson. At the preliminary discussion, the Appellant agreed.

Regarding the IRB claim the Arbitrator held, in part, at page 16 of his decision:

Given my finding that the Applicant has failed to adduce sufficient evidence of loss of income to permit calculation of any income replacement benefit, I find it unnecessary to make a finding on the issue of whether the Applicant sustained the requisite level of impairment to qualify for income replacement benefits during the period of July 18, 2009 to January 17, 2011.

Regarding post 104-week IRB entitlement the Arbitrator held, at page 17:

… the Applicant’s failure to provide particulars and documentation concerning his employment and income for 2011, 2012 and 2013 means that I am unable to determine whether he has sustained any loss of income or calculate an income replacement benefit. I am therefore unable to find that he is entitled to any income replacement benefit during this period. [Emphasis in the original]

Regarding the treatment plan for Sierra Tucson, the Arbitrator held, at page 29:

I accept the opinion of Dr. Walsh that, before further, extensive treatment such as that proposed by Dr. Connell be undertaken, it is crucial to obtain current, valid neuropsychological test results for the Applicant … Once reliable results from such an assessment are obtained, the Applicant is free to submit a new treatment plan to the Insurer for whatever treatment his expert(s) deems to be reasonable and necessary.

The Appellant asserts in his Notice of Appeal, reiterated in his submissions in this preliminary conference, that the Arbitrator failed to consider “voluminous medical and vocational evidence.”

Regarding the use of transcripts on appeal, Delegate Draper, in Malabanan and Canadian General Insurance Company (OIC P96-00073, February 4, 1998), stated:

The filing of a transcript has never been a formal requirement in the appeal process. While it may be useful in some appeals, the decision whether to obtain and file a transcript has been left to the parties.

Delegate Makepeace, in Ms. Z and Dominion of Canada General Insurance Company, (FSCO P00-00023, September 11, 2001), held:

There is no requirement that a transcript be prepared when a hearing is recorded, but the Code contemplates that either party may order “all or a portion of the transcript” [Rule 74.3]. By implication, a party may rely on a transcript of part of an arbitration hearing.

Delegate Makepeace further stated that transcripts in FSCO appeals:

… must be used fairly. Adjudicators should not allow a party to rely on partial transcripts where that would create an inadequate record for the issues being argued … In some cases, fairness requires that a full transcript be prepared. This may be necessary, for example, if the appellant presents good reason to believe that the arbitration decision misstates or disregards important oral evidence, or that the arbitrator erred or showed bias in his conduct of the hearing. However, a bald assertion of a flaw in the process is not enough. Nor is a transcript required just because a party disagrees with the arbitrator’s assessment of the evidence. Appeals are restricted to questions of law … A perverse finding of fact, or one that ignores or misconstrues important evidence, may amount to an error of law, but an appeal is not a rehearing of the evidence.

In McAngus and Guardian Insurance Company of Canada, (FSCO P98-00049, January 10, 2000), Delegate Makepeace confirmed her power under subsections 282(11.1) and 282(7) of the Insurance Act, R.S.O. 1990, c. I.8, to order a party to pay for the transcript (or any other appeal expense) on an interim basis, the order being subject to possible repayment should the party be unsuccessful on appeal.

Upon reading the parties’ correspondence and hearing their submissions, I find:

1. The onus is on the moving party to establish that further portions of the transcript should be ordered by the opposite party and copies provided to the moving party and the Tribunal.

2. There is no ownership by a party in the court reporter or in the transcripts. There is nothing preventing the Respondent from ordering the further transcripts it says are necessary for this appeal.

3. The Appellant agrees the Respondent is free to order the further transcript evidence it feels is required for this appeal.

4. The Respondent does not submit it is unable to afford the cost of further transcripts.

This is unlike the situation in Ms. Z, McAngus, or in Sarpong and Owusu and TD Home and Auto Insurance Company, (FSCO P08-00003 and P08-00004, September 18, 2008), (application for judicial review dismissed: Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627) and D.F. and Wawanesa Mutual Insurance Company, (FSCO P06-00029, April 15, 2008) (application for judicial review dismissed: D.F. v. Wawanesa Mutual Insurance Company, 2012 ONSC 194.

5. The Appellant submits that he is unable to afford the cost of further transcripts, referencing evidence he states was given at arbitration. That evidence, however, is not before me. The Respondent submits, also as argument, not evidence, that the Appellant is not impecunious, having allegedly received a substantial third-party settlement. The Respondent does not submit that it would be unable to recover its legal expenses should it be successful in this appeal and awarded its reasonable expenses.

6. Section 283 of the Insurance Act limits appeals from the decision of an arbitrator to questions of law. The Appellant states that he is not relying on the further transcripts.

At this present juncture, given the Arbitrator’s reasons noted above as well as the Appellant’s augmented argument at this preliminary conference, consistent with the Notice of Appeal, that the Arbitrator failed to consider the voluminous medical and vocational evidence filed, it is not clear why the absence of transcript evidence would create an inadequate record for the issues being argued on appeal.

7. The pertinent consideration regarding ordering the arbitration transcripts is not “to get a full appreciation of the record before the arbitrator upon which he rendered his decisions.” As stated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, “an appeal is not a retrial of a case.” Nor, as argued at this preliminary conference, is the test that it is “dangerous” to both parties to proceed without the Appellant’s oral evidence. The criterion is whether the transcripts are required for a full and fair appeal hearing.

Upon consideration of the above, I am not persuaded to exercise my discretion to require the Appellant to order and pay for the transcript of his own testimony given at arbitration and provide copies of the transcript to the Respondent and to this office. There is nothing preventing the Respondent, should it be of the view that further portions of the transcript are indeed necessary for a full and fair appeal hearing, to order those transcripts, provide copies to the Appellant and this Tribunal and seek its costs in that regard as of part of any claim for its legal expenses.

The Respondent indicated it would determine whether it would order any further portion of the arbitration transcript. As undertaken, the Respondent shall advise the Appellant and this office within twenty days as to whether it will order any further transcripts from the arbitration hearing.

On consent, to accommodate the possible ordering of further transcripts as well as the availability of counsel, the following time line was set for the exchange of written submissions:

1. The Appellant will have until January 16, 2015 to serve on the Respondent and file (with a Statement of Service in Form F) with this office his written submissions.

2. The Respondent will then have until February 20, 2015 to serve on the Appellant and file (with a Statement of Service in Form F) with this office its written submissions.

3. The Appellant will have until March 20, 2015 to serve on the Respondent and file (with a Statement of Service in Form F) with this office any reply submissions.

Oral submissions will be heard at the Commission, on consent, on April 15, 2015.

IV. EXPENSES

The legal expenses of this preliminary conference are deferred to the conclusion of this appeal, subject to any further or other order of an appellate officer.

October 10, 2014

Lawrence Blackman Director’s Delegate