In Dhawan and State Farm Mutual Automobile Insurance Company (Appeal), P01-00025, February 1, 2002, Mr. R. Spiegel, an agent, was excluded from the proceeding pursuant to s. 23(3) of the Statutory Powers Procedure Act. The proceedings had been lengthy and complex. In issuing the exclusion order, the Director's Delegate referred to the decision of the Ontario Court of Appeal in R.v. Romanowicz (1999), 45 O.R. (3d) 506 in which the role of non-lawyer representatives was discussed (p.18). It was acknowledged that excluding an agent is a serious matter and is warranted only when it is necessary to protect the proper administration of justice (p.20). In the circumstances, however, the Director's Delegate found that it was necessary to exclude Mr. Spiegel:

I am persuaded Mr. Spiegel is not competent to advance his client's interests. His submissions are incoherent, disorganized, and repetitive. ... Some of Mr. Spiegel's arguments fly in the face of well-established legal principles. For example, he ridicules the idea that a tribunal adjudicator may hear and decide a bias allegation made against it. In fact, a party who chooses not to put its bias case before the tribunal concerned runs the risk that a reviewing court may exercise its discretion to refuse to hear the case on the basis of waiver or prematurity (p.21).

In Asmail and Wawanesa Mutual Insurance,A01-000463, February 1, 2002, the applicant was barred from arbitration. Wawanesa had made a motion to strike out the application for arbitration on the grounds that the claims had not been mediated and the claim was frivolous and vexatious. Neither Mr. Asmail, nor his agent, Mr. Sherman appeared at the pre-hearing. Thereafter, Mr. Sherman requested to be removed as agent of record on the basis that he was improperly retained, and was unable to obtain pertinent information from the client. The arbitrator questioned Mr. Sherman's credibility, given the length of time he took to initiate getting off the record. However, as Mr. Asmail had signed a consent to his withdrawal, the arbitrator allowed it, given the mandatary provisions of Rule 9.8 of the Dispute Resolution Practice Code (4th Ed).

 

In Hezavian and Allstate of Canada, A01-000164, February 8, 2002, the applicant was represented by Mr. Baradaran, an agent. The arbitrator had noted Mr. Baradaran's obstreperous and uncooperative attitude at the hearing when objections were raised and orders made with regard to his conduct. It was also found that he displayed a poor understanding of the fundamentals of examination and cross-examination. Mr. McCarthy, counsel for Allstate, stated that his client did not wish to penalize the applicant, but argued that Allstate should not be required to pay her expenses which would include Mr. Baradaran's agency fees. The arbitrator did not order Allstate to pay Ms. Hezavian's expenses, noting that her agent's uncooperativeness, lack of preparedness and inappropriate interventions tended to lengthen the proceeding. While finding it unfortunate that the applicant would likely be expected by the agent to pay for his less than adequate services, the arbitrator also noted that the applicant did not have entirely clean hands as she had misrepresented her medical history to medical assessors and to the tribunal.

In Hezavian and Allstate of Canada, A01-000164, February 8, 2002, the applicant's claims for the costs associated with an assessment and treatment plan by Dr. Rex Samuel and a functional capacity evaluation by Metro Rehabilitation and Assessment Centre were dismissed. The arbitrator followed previous case law, namely Tesfai and Allstate, A99-000321, July, 26,2000; affirmed on appeal P00-00048, December 21, 2001, which held that three factors are to be considered in determining whether the claims should be awarded under s.24. These are:

1. Whether the assessment was for the purpose of the regulation or within the purview of s.24;
2. Whether it was reasonable to have conducted the assessment; and
3. Whether the fees charged are reasonable (p.20).

With respect to the functional abilities evaluation conducted by Metro Rehabilitation Centre it was noted that there was no evidence that Mrs. Hezavian had been referred by a medical practitioner. Following Tesfai, the arbitrator found that the purpose for the assessment can be found in the report itself. She accepted therefore that the report was prepared for the purpose of s.24. However, it was not reasonable for the assessment to have been conducted. The applicant's family physician had not referred the applicant to Metro and it was found that she had failed to establish a medical basis for the assessment. Also, given the applicant's return to work on a full-time basis, the arbitrator found this strongly suggested that an assessment of her daily activities abilities at work was not reasonably required (p.21). Accordingly, the $1,500.00 claim was denied.

 

In Simpson and Allstate Insurance Company of Canada, A01-000215, February 6, 2002, the insurer was permitted to deduct from the applicant's income replacement benefits the amount of a benefit she received from Trafalgar Insurance Company of Canada in respect of a motor vehicle accident on November 1, 1995. Following an earlier motor vehicle accident on November 1,1995, the applicant had received loss of earning capacity benefits. Following the second accident of May 4, 2000, for which Allstate paid her accident benefits, Mrs. Simpson received a temporary supplement to her loss of earning capacity benefits. Section 32(1) of the SABS - 1994 provides:
32(1) If a person who is entitled to receive weekly loss of earing capacity benefits as a result of an accident and who is engaged in employment becomes unable for a temporary period, as a result of the accident, to engage in employment in which the person could earn the gross annual income that was used to determine the person's residual earning capacity for the purpose of determining the amount of the person's weekly loss of earning capacity benefits, the insurer shall, during that period, pay the person a weekly supplement to the loss of earning capacity benefits.

Allstate moved to deduct this supplement pursuant to s.60(1), paragraph 1 and s.60(3)(c) of the SABS - 1996. These sections provide:

60(1) The insurer may deduct the following amounts from the amount payable to an insured person as an income replacement or non-earner benefit:

1. Any temporary disability benefits being received by the insured person
in respect of a period following the accident and in respect of an
impairment that occurred before the accident.
....

60(3) In this section,
'temporary disability benefit' means
...
(c) benefits paid under Part II, III or IV or section 32 of Ontario
Regulation 776/93

In allowing the deduction to be made, the arbitrator found that the applicant's inability to work after May 4, 2000, was, in part at least, as a result of the accident of November 1, 1995 (p.11). It was found that this finding would have been sufficient to trigger Trafalgar's obligation to pay the applicant the s.32 supplement, had Trafalgar contested its obligation to do so on the same evidence (p.12).

In Falahi and Ing-Halifax Insurance Company, A01-000103, February 5, 2001, the insurer took the position that the applicant was entitled to workers' compensation benefits and therefore was not entitled to receive accident benefits, pursuant to s.59 of the SABS. The arbitrator found that with respect to the s.59(2) exception, two prerequisites must be met, namely:

1. The applicant has elected to bring an action referred to in s.30 of the WSIA, namely 'an action against a person in respect to the injury or disease', and
2. That election must not have been made primarily for the purpose of claiming statutory accident benefits (p.7).

There was no evidence of any actual election having been made by the applicant to pursue any other action. The arbitrator also expressed concern with respect to jurisdiction , fairness and notice. He observed that the insurer had at the start of the hearing referred to the exclusive statutory jurisdiction of the WSIA Appeals Tribunal and yet asked him to dismiss the arbitration proceeding. Secondly, the arbitrator found that the issue of entitlement had not been set out anywhere as an issue to be dealt with at the preliminary issue hearing. An adjournment order was made. There was to be a resumption of the pre-hearing discussion for the purpose, amongst others, of setting time lines to allow an application to be made to the Workplace Safety and Insurance Appeals Tribunal for a determination of whether the applicant was entitled to workers' compensation benefits.