Neutral Citation: 2014 ONFSCDRS 9

FSCO A10-001912

BETWEEN:

ABDEL EL-SISI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Anne Sone

Heard: Final written submissions were due June 28, 2013

Appearances: Mike Giordano and Elvis Viskovic for Mr. El-Sisi Jocelyn Tatebe, Tracy Brooks for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Abdel El-Sisi, was injured in a motor vehicle accident on January 22, 2008. His legal counsel applied for statutory accident benefits¹ from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.² The parties were unable to resolve their disputes through mediation, and Mr. El-Sisi’s legal counsel applied on behalf of Mr. El-Sisi for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Was the Application for Arbitration made on behalf of Mr. El-Sisi on June 18, 2010 a nullity?

Result:

Mrs. Soad El-Sisi, as Litigation Administrator for the Estate of the deceased, Mr. Abdel El-Sisi, may proceed to arbitration on behalf of Mr. El-Sisi, provided that she confirms that she is pursuing this arbitration on behalf of her late husband’s estate and asks that the style of cause be amended to reflect this change.

Outline:

Unless otherwise indicated, the following facts are not in dispute. Mr. El-Sisi died intestate on April 18, 2010. Wawanesa alleges that Mr. Sal Guzzo, his legal counsel, knew of his death approximately 10 days later. Despite his death, Mr. Guzzo filed an Application for Arbitration in Mr. El-Sisi’s name on June 18, 2010. This Application did not mention Mr. El-Sisi’s death.

On September 23, 2010, Mr. Elvis Viskovic, a paralegal in Mr. Guzzo’s office, wrote to Wawanesa’s counsel, Ms. Tracy Brooks, and advised her of Mr. El-Sisi’s death.

On November 1, 2010, Ms. Brooks wrote to Mr. Guzzo and the Commission advising that Wawanesa was taking the position that Mr. El-Sisi’s Application for Arbitration was a nullity.

On November 2, 2010, Ms. Guzzo provided several explanations for his decision to file the Application in Mr. El-Sisi’s name, after he was deceased. Here is a list of them:

The Applicant’s family needed time to grieve.
Mr. Guzzo was not aware McCague Borlack LLP was retained until July 2010.
Mr. Guzzo was not in the office for the month of August 2010.
Mr. Guzzo experienced difficulty arranging a meeting with the Applicant’s family and obtaining instructions from them.
Mr. Guzzo was concerned that he could have a negligence claim against him, if an Application for Arbitration was not submitted within the appropriate limitation period.
Mr. Guzzo was unable to get instructions until September 2, 2010.
Wawanesa was aware of Mr. El-Sisi’s death.

A copy of an Affidavit that Mrs. Soad El-Sisi swore on September 2, 2010 was attached to Mr. Guzzo’s letter of November 2, 2010. It stated that her husband died intestate without any assets which would require the appointment of an estate trustee.

Mr. Guzzo also advised that if he did not receive Wawanesa’s consent to amend the Application for Arbitration, he would bring a motion to amend it.

Wawanesa did not consent to Mr. Guzzo’s proposed amendment. It took the position that the Application was a nullity. It took this position because it was submitted in Mr. El-Sisi’s name by his lawyer whose authority had been terminated by the Applicant’s death two months before it was filed.

Wawanesa relied on Hancock and RBC General Insurance Company.³ In that case, the Applicant had died after the motor vehicle accident of causes unrelated to the accident. Despite her death, her representative had filed an Application for Mediation, and then an Application for Arbitration in her name. This Application claimed past and ongoing non-earner benefits and housekeeping expenses. The Arbitrator found that “there was no evidence before him that anyone had undertaken to administer Ms. Hancock’s estate in Ontario.” Finding that the application was not properly constituted, he dismissed the claim. Upon appeal, the Director’s Delegate upheld this dismissal.⁴

On January 10, 2012, Mrs. Soad El-Sisi obtained an Order in Superior Court. This Order stated that she “… be appointed as Litigation Administrator for the Estate of the deceased Applicant / Plaintiff, Abdel El-Sisi, so that the FSCO Arbitration (Commission File No. A10-001912-IP) and any resulting litigation commenced on behalf of the deceased’s estate can continue; …”⁵

This Order distinguishes this case from Hancock. Due to the limitation period issue that arose, I am using my discretion under the Dispute Resolution Practice Code (the “Code”) to deal with the defect in the original Application for Arbitration.

Accordingly, Mrs. El-Sisi may proceed to arbitration on behalf of Mr. El-Sisi, provided that she confirms that she is pursuing this arbitration on behalf of her late husband’s estate and asks that the style of cause be amended to reflect this change. The following analysis is a more detailed discussion of the reasons for my decision.

Was Mr. El-Sisi’s Application for Arbitration a Nullity?

Rules of Civil Procedure:

Section 9.02 of the Ontario Rules of Civil Procedure⁶ provides that where it is sought to commence or continue a proceeding against the estate of a deceased person who has no administrator, the court may appoint a litigation administrator.

Section 9.03 of the Rules states that where a proceeding is commenced by a person as administrator before the grant of administration has been made, the person who subsequently receives the grant of administration is deemed to have been properly constituted from its commencement.

Dispute Resolution Practice Code:

The first three Rules of the Code state as follows:

1.1 These Rules will be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute.

1.2 Where something is not specifically provided for in these Rules, the practice may be decided by referring to similar Rules in this Code.

1.3 A defect in form or other technical breach will not make a proceeding invalid.

Wawanesa’s Submissions:

Mr. Guzzo had no authority to act on behalf of the estate when the Application for Arbitration was filed.

Rules 9.02 and 9.03 cannot be applied to save this Application from being a nullity according to the Director Delegate’s decision in CGU Insurance Company of Canada and Jacob Bittan,⁷ where he found that Rule 9.03 was not applicable to Commission proceedings. (Instead, in Bittan, the Director’s Delegate found that the doctrine of relation back did not apply under these circumstances, and used the broad powers of an Arbitrator under Rules 1.1 to 1.3 of the Code to deem that an Application filed on behalf of a deceased person was not a nullity.⁸)

Wawanesa submitted that in this case Rules 1.1 to 1.3 of the Code could not be used to deem an Application filed on behalf of a deceased person not a nullity. It argued that Bittan is distinguishable on its facts. The differences Wawanesa raised refer to variations in:

how soon the Application was filed after the death of the insured
how soon the insured’s lawyer received instructions to file the Application for Arbitration
how quickly the insurer’s lawyer challenged the validity of the Application for Arbitration.

Wawanesa also submitted that finding that the Application for Arbitration in this case was not a nullity would bring the administration of justice into disrepute. It made this argument because the Application for Arbitration was brought in the financial interest of Mr. Guzzo’s firm, rather than on behalf of the Applicant. Accordingly, the public would lose confidence in the administration of justice if this Application were allowed to proceed.

Mr. El-Sisi’s Submissions:

Mr. Guzzo did not have instructions from Mr. El-Sisi’s family until he met with them in September 2, 2010.

Mr. Guzzo was concerned that he could have a negligence claim against him, if an Application for Arbitration was not submitted within the appropriate limitation period.

Mr. Guzzo did not originally seek to obtain an order appointing a litigation administrator in this matter because Mr. El-Sisi died without a will and he had no assets which would require him to seek the appointment of an estate trustee.

When Wawanesa questioned Mr. Guzzo’s motivation for filing the Application for Arbitration, Mr. Guzzo stated that he would do this case on a pro bono basis, and would donate any fees recovered to charity, and provide proof that this was done.

Mr. Guzzo’s firm then obtained an Order dated January 10, 2012 appointing Mrs. El-Sisi as Litigation Administrator. This Order states at paragraph 2 that:

THIS COURT ORDERS that Soad El-Sisi be appointed as Litigation Administrator for the Estate of the deceased Applicant / Plaintiff, Abdel El-Sisi, so that the FSCO Arbitration (Commission File No: A10-001912-IP) and any resulting litigation commenced on behalf of the deceased’s estate can continue.

As a result, there is a court order appointing Mrs. El-Sisi as Litigation Administrator for the Estate of Mr. El-Sisi.

Analysis and Conclusion:

The Hancock case is distinguishable from this one because no litigation administrator was ever appointed in that case. In fact, there was no evidence before the Arbitrator that anyone had undertaken to administer Ms. Hancock’s estate in Ontario.

In this case, there is a court order appointing Mrs. El-Sisi as Litigation Administrator for the Estate of Mr. El-Sisi. The Order specifically states that this is being done so that this Arbitration can continue.

Under these circumstances, I am prepared to follow the Director’s Delegate’s decision in Bittan in using my discretion under the Code to allow this Arbitration to continue, because of the limitation period issue that Mr. Guzzo was facing. Wawanesa attempted to distinguish Bittan on the basis of various timing differences set out above. However, I do not find these differences so significant as to prevent me from exercising my discretion.

As in Bittan, a relative (in this case Mrs. El-Sisi) has been appointed as Litigation Administrator by the Ontario Superior Court of Justice, so that litigation commenced on behalf of the deceased’s estate can continue. Apart from delay, it is difficult to see any real prejudice to Wawanesa.

For these reasons, I conclude that this arbitration need not, and should not, be treated as a nullity. However, Soad El-Sisi, as Litigation Administrator, must immediately confirm that she is pursuing this arbitration on behalf of her late husband’s estate and ask that the style of cause be amended to reflect this change.

January 20, 2014

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario