Sama Baradaran v. State Farm Mutual Automobile Insurance Company, 2018 ONFSCDRS 149

Financial Services Commission of Ontario / Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 149 FSCO A13-014023

BETWEEN:

SAMA BARADARAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION ON A MOTION

Before: Alan Mervin Heard: By written submissions ordered at the pre-hearing, to be filed by August 17, 2018 by the moving party, the Insurer; written submissions on behalf of the Applicant by August 31, 2018; and reply, if any, by the Insurer, by September 7, 2018. Written submissions from the Insurer were received on August 17, 2018. No further written submissions were filed by either party.

Appearances: No one appearing on behalf of the minor Applicant Ms. Sama Baradaran Timothy Crljenica for State Farm Mutual Automobile Insurance Company

Issues:

The minor Applicant, Sama Baradaran, was injured in a motor vehicle accident on May 30, 2012. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated benefits, and the parties were unable to resolve their disputes through mediation.

Ms. Baradaran then applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this motion are:

1. Should Mr. Baradaran be removed from the record as Form P representative of the minor Applicant, Sama Baradaran?
2. Should the Insurer be granted its expenses for this motion?

Result:

1. The Insurer’s motion is granted. Mr. Baradaran is removed from the record as Form P representative for the minor Applicant, Sama Baradaran.
2. The issue of expenses on this motion is deferred to the hearing arbitrator.

BACKGROUND:

Following the accident on May 30, 2012, Mr. Manoucher Baradaran, father of the Applicant, filed expense claims for attendant care benefits for the Applicant, and, on October 1, 2012, State Farm issued a payment of $12,000.00 as payment for attendant care services the Applicant claimed to have received.

As the Applicant was a minor, her father, Manoucher Baradaran signed a Form P-Representing Minors and Mentally Incapable Persons, attesting that he was filing the application on behalf of the Applicant, in his capacity as a parent with whom the Applicant resided.

On August 9, 2013, her then counsel, Mr. Plate, filed the Application for Mediation, and subsequently, on November 8, 2013, filed the Application for Arbitration on behalf of the Applicant seeking entitlement to further attendant care benefits and medical benefits.

On November 22, 2013, the Applicant attended an Examination Under Oath (EUO), during which she allegedly denied receiving attendant care services from the service providers named on the attendant care expense forms which were submitted to the Insurer.

After the EUO, State Farm amended the Insurer response and served the amended Schedule A to the Insurer Response and served the amended Schedule A to the Insurer’s Response personally on Mr. Baradaran, who was representing the Applicant at a pre-hearing on February 9, 2015.

The amended Response claimed repayment of the $12,000.00 paid for attendant care services due to material misrepresentation with respect to the services provided.

The February 9, 2015 prehearing, with Mr. Baradaran attending representing the Applicant, was adjourned to May 15, 2015 at Mr. Baradaran’s request.

Mr. Baradaran attended the May 15, 2015 resumption via teleconference, again representing the Applicant, and at which time an arbitration hearing was scheduled for June 6 to 9, 2016.

A further resumption of prehearing took place on February 26, 2016. Mr. Baradaran did not attend despite having been served with notice, and subsequent to this pre-hearing, Arbitrator Feldman wrote to Mr. Baradaran on March 11, 2016 advising that Mr. Baradaran was in a potential conflict situation. It was the Insurer’s position that he made material misrepresentations to State Farm with respect to the Applicant’s claim.

Arbitrator Sone wrote to him on May 17, 2016, pointing out that he had not responded to Arbitrator Feldman’s letter of March 11, 2016, after which time The Commission received an email from Mr. Baradaran. That email advised that the Applicant was not prepared to proceed with the arbitration at that time.

On May 30, 2016, the related case of Fariba Baradaran was scheduled to begin. Immediately after the conclusion of Fariba Baradaran’s case, Ms. Sama Baradaran’s case was to begin. However, because of procedural concerns raised during an Insurer’s preliminary motion, Arbitrator Sone adjourned both hearings to April, 2017.

Following this adjournment, Arbitrator Alves wrote to the Children’s Lawyer, advising of the conflict situation, and requested that the Children’s Lawyer consider representing Ms. Baradaran. The Children’s Lawyer declined.

On March 16, 2017, Mr. Baradaran emailed counsel for the Insurer, advising that “we will not settle or attend in any sort of hearing in FSCO”². After receipt of this email, the Insurer immediately responded to various points Mr. Baradaran had raised, and advised him that if he did not attend at the FSCO hearing, the arbitrator may dispose of the case in his absence. In fact, the Insurer advised that intended to ask the arbitrator to dispose of the case at that time, with or without his participation in the hearing.

On March 23, 2017, Mr. Baradaran wrote to the insurer, again advising, “We are not proceeding with the hearing”.

However, Mr. Baradaran had not taken any steps to withdraw the application, and on March 30, 2017, the Insurer wrote to FSCO advising that it was the Insurer’s position that the hearing ought to proceed, and in the event Mr. Baradaran failed to appear at the hearing, the Insurer would seek its expenses against Mr. Baradaran directly³.

On April 10, 2017, the morning that the hearing was scheduled to commence, Mr. Baradaran advised the Tribunal that he wished to withdraw the Application for Arbitration.

Arbitrator Muzzi, who was presiding, allowed the request, and ruled that the Insurer could not pursue its request for repayment until the applicant re-applied for arbitration.⁴

The Insurer successfully appealed this decision to Director’s Delegate Evans, who held that the Insurer was entitled to pursue the request for repayment of attendant care benefits.

A prehearing teleconference took place on July 30, 2018 before me, to discuss the issues with respect to the hearing of this matter. Mr. Baradaran participated, constantly interrupting the discussion with outbursts, and said he would not participate in the arbitration hearing. He then abruptly hung up.

The pre-hearing continued and the arbitration was scheduled to proceed on November 21, 2018, in his absence. The Insurer again advised that Mr. Baradaran would be called as a witness at the hearing, given his role in reporting the attendant care services.

After the prehearing concluded, a Notice of Hearing was served on Mr. Baradaran.

EVIDENCE AND ANALYSIS:

The Insurer requests that Mr. Baradaran be removed as the Applicant’s Form P representative, submitting that he has shown repeatedly that he is not competent to properly represent the applicant and has not complied with the duties and responsibilities of an advocate and advisor.

The Insurer has also submitted that he be removed, as the Insurer intends to call him as a witness at the hearing with respect to the alleged misrepresentations contained in the expense documents he submitted in support of the attendant care claim. It is the Insurer’s position that Mr. Baradaran is in a position of conflict, and has been advised of this by several arbitrators in correspondence.

The Insurer has further submitted that Mr. Baradaran has caused numerous procedural problems and delay, and has refused to properly participate in various pre-arbitration steps, including the most recent pre-hearing before me during which he hung up part way through the pre-hearing after objecting to the entire process and stating that he would not participate in any hearing (as summarized above.)

THE LAW:

The only issue in this motion, other than the issue of expenses, is whether Mr. Baradaran should be removed as the Applicant’s Form P Representative.

Section 23(3) of the Statutory Powers Procedures Act (SPPA) states as follows:

(3) A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.⁵

Rule 9.9 of the Dispute Resolution Practice Code, Fourth Edition, updated January, 2014 (The Code) states as follows:

9.9 An adjudicator may exclude from a proceeding anyone, other than a duly qualified barrister and solicitor, appearing as a representative or agent on behalf of a party, or as an advisor to a witness, if the adjudicator finds that such person is not competent to properly represent or to advise the party or witness or does not understand and comply with these Rules and the duties and responsibilities of a representative, agent or advisor.

Conduct of Mr. Baradaran;

The Insurer submits that Mr. Baradaran has shown repeatedly that he is not competent to properly represent the Applicant, and that he has not complied with the duties and responsibilities of an advocate or advisor, as required by The Code

In support of this submission, the Insurer states that Mr. Baradaran’s conduct has caused numerous procedural problems and delay, and cites the following examples of Mr. Baradaran’s conduct:

• He has refused to properly participate in various pre-arbitration steps, including the last pre-hearing teleconference, over which I presided, and during which Mr. Baradaran hung up part-way through;
• He did not properly prepare the Applicant’s claim, and only announced that the arbitration was being withdrawn on the morning of the hearing, despite many opportunities to do so earlier, thereby exposing the Applicant to an award of Insurer expenses;
• Mr. Baradaran refused to comply with the admonishments of multiple arbitrators that he was in a position of conflict and should find alternative representation for the Applicant.

The Insurer also has cited several decisions from The Commission, The Licence Appeal Tribunal, and the courts that have commented on Mr. Baradaran’s incompetence on representing applicants in accident benefits cases.

While I do not intend to cite all of the cases referred to in the Insurer’s submission, I found the case of Baradaran v. Tarion Warranty Corp.⁶ particularly informative, in providing some historical context for the Insurer’s submissions.

While that case was heard in the Ontario Superior Court of Justice, and was not an accident benefits case, it is useful to note Justice McEwen’s comments regarding Mr. Baradaran’s conduct with respect to Tarion’s application to have Mr. Baradaran declared a vexatious litigant.

In that case, Justice McEwen took note of the defendant’s submissions regarding Mr. Baradaran’s history of “unruly and obstreperous behaviour” before tribunals, Mr. Baradaran’s commencing over fifty actions in Small Claims Court, and eleven actions in the Ontario Superior Court of Justice, and Mr. Baradaran’s continuing to hold himself out as a qualified paralegal, notwithstanding that he was not licensed as a paralegal. Although Justice McEwen found him to be a vexatious litigant, that decision was overturned by the Court of Appeal.

However, in so doing, the Court of Appeal made the following comments:

There is evidence that the appellant has conducted himself in a vexatious manner in respect of the Tribunal proceedings, and in the course of the Superior Court action….such conduct no doubt makes it difficult for both opposing counsel and the court to understand and deal with the appellant’s claims in the action, is distracting and impedes the resolution of the litigation…

While I have considered the many cases that the Insurer has submitted supporting its allegations that Mr. Baradaran’s past conduct has demonstrated that he ought not to be allowed to represent the Applicant, I am more concerned with his behaviour in this matter. I would not be prepared to remove him solely based on his prior history. However, in this matter, it is clear to me that he is either unable to understand the proceedings and his role, or is deliberately sabotaging the proceeding by delay and obstructionist tactics. A competent representative does not hang up in the middle of a pre-hearing, and does not show up on the day of the hearing unprepared to proceed.

Further, just before he hung up during the last pre-hearing, he made it clear that he would not participate in the arbitration hearing.

Based on the Insurer’s submissions which I note were unopposed, (as Mr. Baradaran did not submit written submissions and exercise his right to reply), and my own observations during the pre-hearing at which I presided, including but not limited to, the following:

• he hung up during the prehearing and was not present when the hearing date was chosen;
• his constant outbursts and interruptions during the portion of the pre-hearing in which he did participate;
• he submitted nothing in writing in reply to the Insurer’s extensive written submissions despite being given an opportunity to do so;
• he made it clear that he would not participate in the arbitration hearing,

This conduct could only be considered detrimental to the Applicant’s case, and no doubt would result in increased expenses claimed by the Insurer in the event that the Insurer succeeded in the arbitration. As a result, I find that Mr. Baradaran is not competent to properly represent the applicant and has not complied with the duties and responsibilities of an advocate, representative and advisor, as required by Rule 9.9 of the Code.

Should Mr. Manoucher Bararadaran be removed as Form P Representative of the Applicant because of a Potential Conflict of Interest?

I agree with the Insurer’s submission that Mr. Baradaran should not represent the Applicant, as he is in a conflict situation. In addition, given an opportunity to make submissions as to why he should not be removed, Mr. Baradaran submitted nothing to contradict the Insurer’s submission.

Mr. Baradaran submitted the attendant care expense sheets to the Insurer, and the Applicant herself, at her EUO, identified him as one of the individuals that provided attendant care services, and was identified as such by the Insurer as a witness at the prehearing.

The Insurer submits that the Courts have removed family member representatives who may have a potential conflict of interest and who may be necessary witnesses at trial.⁷ I am prepared to follow the Courts’ guidance in this matter.

Because I have found Mr. Manoucher Baradaran’s conduct during these proceedings objectionable, and not in the best interests of the minor Applicant, and because of the potential conflict arising with respect to Mr. Baradaran’s dual roles of representative, and potential witness, I find it appropriate under the circumstances of this case to remove him as the Applicant’s Form P representative.

EXPENSES:

The Insurer, in its written submission, has suggested that in the event of Mr. Manoucher’s non appearance at the hearing, it would be seeking costs against him personally. However, Mr. Manoucher did appear at the hearing, and the matter was withdrawn at that time.

I also note that should Mr. Manoucher be removed at this time, there may arise an issue as to whether an expense order against the former representative can be made.

In any event, as this decision leaves the minor Applicant unrepresented, I am not prepared to make any expense order at this time, and I defer any issue(s) relating to expenses of this motion to the hearing arbitrator.

October 23, 2018

Alan Mervin Arbitrator

Neutral Citation: 2018 ONFSCDRS 149 FSCO A13-014023

BETWEEN:

SAMA BARADARAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Manoucher Baradaran is removed from the record as Form P representative of the minor Applicant, Sama Baradaran.

October 23, 2018

Alan Mervin Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Email from Manoucher Baradaran to Thomas Gold Pettingill LLP, dated March 16, 2017, at Tab 23 of Insurer’s written submissions.
3. 3Correspondence from Thomas Gold Pettingill LLP to FSCO, dated March 30, 2017, Tab 26 Insurer’s written submissions.
4. 4Baradaran and State Farm, (FSCO A13, 014013, May, 2017, at Tab 27 Insurer’s written submission.
5. 5SPPA, 2006, c. 21, Sched. C, s. 134 (7).
6. 6Baradaran v. Tarion Warranty Corp., 2013 ONSC 3145 at paras 44 to 46.
7. 7McWaters v. Coke, 2005 ONCJ at Tab 45, Kam v. Hermanstyne , 2011 ONJC 101 at Tab 46 and Windsor-Essex Childtren’s Aid Society v. B.D. 2013 ONCJ 43. At Tab 47 of the insurer’s written submissions.