In Alamin v. Royal & Sunalliance Insurance Company of Canada/Markel Insurance Company of Canada, FSCO-008445, September 18, 2002, a motion was made by Ms. Moira Gracey, counsel of record for Ms. Alamin, to be removed as counsel of record. Ms. Alamin claimed to have been injured in motor vehicles accidents in March and September 1993. Throughout the proceedings there had been concerns with respect to her mental capacity. Adjournments had been allowed for changes of representation and concerns over Ms. Alamin's capacity. The file had been transferred to the Juan Carranza law office by December 1998. On April 15, 1999, Arbitrator McMahon wrote to Mr. Tiano, a lawyer from the Carranza firm who was representing Ms. Alamin. The letter reminded Mr. Tiano that he had "undertaken to apply to the court for the appointment of the litigation guardian" (and requested to know the status of the matter. p.5). There was no response and the matter continued to move slowly before the Commission. Eventually, a note on a prescription pad was produced that was signed by Dr. Dilkhush Panjwani which stated that Ms. Alamin was competent to instruct counsel and make independent decisions (p.6). The arbitrator, however, did not find the note to be highly probative as it did not address the test in s. 6 of the Substitute Decisions Act. The arbitrator further noted that in this case, the lawyer's proposed withdrawal was objected to by the client. In the circumstances, he refused to grant the motion stating:

Given the previous allegations of incapacity in this matter, I refuse to grant the requested order without some credible evidence that the alleged breakdown in the solicitor client relationship was not due to, or related to the capacity issues, previously identified, and that the prejudice asserted by Ms. Alamin can be addressed (p.9).

The arbitrator noted that Rule 4 of the Rules of Professional Conduct of the Law Society states that a lawyer must strictly and scrupulously carry out an undertaking given to the tribunal or to another lawyer in the course of litigation (p.12). The matter was adjourned to permit the production of medical evidence on the capacity issue (p.12). Given that the adjournment was due entirely to the failure of the moving party, Ms. Gracey, fulfill her undertaking to the tribunal, was warned that an expense order could be made against her.

In four recent cases, Allstate succeeded in having arbitrations stayed until the applicants complied with the orders of pre-hearing arbitrators: Nguyen v. Allstate, A00-001228, September 5, 2002; Ho v. Allstate, A00-001228, September 5, 2002; Khong v. Allstate, A00-001228, September 5, 2002; Phan v. Allstate, A00-001228, September 5, 2002.

 

In Pantazis v. TTC Insurance Company, A01-001564, September 16, 2002, the arbitrator accepted that the applicant had been in a "accident" within the meaning of s. 2 of the SABS-1996. Ms. Pantazis had lost her balance after alighting from a TTC bus, had fallen and twisted her ankle. The applicant's evidence was preferred to that of a bus driver who saw her fall, as the bus driver admitted that he was looking straight ahead and did not have a view of her feet. The arbitrator also rejected the TTC's allegation that Ms. Pantazis' testimony was inconsistent with the statement that she gave to the TTC shortly after the accident. On the third page of the statement it stated that the driver had not lowered the step and that caused Ms. Pantazis to "come down from a higher point and to tumble out at a greater force" (p.7).

 

In Berhe v. State Farm, A01-001117, September 9, 2002, the applicant was awarded $35,000.00 in death benefits. Ms. Berhe's son, Mr. Gebremeskel was a pedestrian on January 20, 2000, when he was fatally struck by a car insured by State Farm. Death benefits in the amount of $6,000.00 were paid for funeral costs, but State Farm refused to pay additional benefits. Mr. Gebremeskel's mother lived in Ethiopia. State Farm asked the arbitrator to draw an adverse inference because of the lack of information provided about Ms. Berhe's assets and financial obligations (p.5). The arbitrator, however, found that Ms. Berhe had made her best efforts to provide the information requested. The definition of dependency is set out in s. 2(6) of the Schedule that states that a person "is a dependant of another person if the person is principally dependent for financial support or care on the other person or on the other person's spouse (p.6). Ms. Berhe had obtained a ruling from an Ethiopian court that she was a dependant of her son. The Ethiopian court had listened to the evidence of three witnesses: a priest, a government worker and a textile factory worker. These individuals lived close to Ms. Berhe and gave evidence that she was receiving money from her son and was financially dependent upon him. With respect to the foreign court's decision, the arbitrator remarked:

I consider that the communal court in Ethiopia treated the question of dependency as a very serious question and sought the testimony of various witnesses who gave evidence about their knowledge of Ms. Berhe's dependency on her son. While this was another forum that determined the question of dependency, I believe that at the same time as I am required to weigh the evidence before me and ultimately decide the question, I am also obliged to treat a decision of the Ethiopian court with respect. While it is not determinative, the decision, taken together with Ms. Berhe's affidavit and supplementary document in response to State Farm's request for further information comprise a body of evidence which satisfy me that Ms. Berhe was financially dependent on her son (p.8).

In Howden v. Pembridge Insurance Company, A01-000333, September 23, 2002, the applicant's motion to re-open the case to induce fresh evidence was denied and counsel was not given leave to make further submissions. The arbitrator referred to R. v. Palmer [1980] 1 S.C.R. 759 which set out the criteria for admitting new evidence. The applicant sought to reopen the hearing because of the release of Smith v. Co-operators [2002] S.C.J. No. 34 by the Supreme Court of Canada. The case dealt with a limitation defence, but Mr. Wilson argued that it also stood for the proposition that a failure to properly terminate benefits by the insurer creates, in itself, an entitlement to ongoing benefits for an insured, that is not dependent on the merits of an insured's situation (p.5). In denying the motion, the arbitrator stated:

In any event, it would appear that the applicant has not previously raised this issue at either mediation or pre-hearings. The insurer, consequently, has presented its entire case without being aware that it would be required to speak to another issue. The present motion, is not merely to induce further evidence relevant to the issues of the hearing, but, fundamentally, to add a further issue to a hearing that has already taken place (p.6).

In Volfson v. Shuster and Royal & Sunalliance Insurance Company of Canada, A01-000440, September 13, 2002, the arbitrator concluded that the documents which Mr. Volfson (a partner in the treatment facility Universal Injury Treatment Centre Inc.) provided to FSCO were forged, and there was no authorization from Olga Shuster or Yur Shuster (Royal's insureds) to commence the proceedings (p.10). Ms. Diane Kruger, a forensic document examiner, testified at the hearing and her evidence was accepted that the Shusters did not sign or date the authorizations filed with FSCO. The arbitrator amended the pleadings to reflect the reality that Mr. Volfson was the applicant, commenting:

There is no evidence that this proceeding was commenced for the benefit of anyone other than Mr. Volfson and Universal, a treatment facility in which he is a partner. I find Mr. Volfson commenced this arbitration on his own account and is therefore a party to these proceedings. I agree with the submission of counsel for Mr. and Mrs. Shuster that in doing so he used the names of Olga Shuster and Yury Shuster as hollow, false labels. I therefore amended the style of cause to reflect this finding, so that Mr. Volfson is listed as the applicant, Mr. and Mrs. Shuster as insured persons and Royal as the insurer of Mr. and Mrs. Shuster (p.15).

Mr. Volfson cited a number of cases in which arbitrators have held that they had no authority to order a party's representative to pay expenses (p.16). Arbitrator Alves, however, distinguished those cases, as they involved agents acting as the representative of the insured person, not on their own account, or as a party (p.17). She cited with approval the decisions in Piotto v. Kingsway General Insurance Company (A00-001061), March 22, 2002 and Gurevich v. Royal & Sunalliance Insurance Company of Canada (A01-000936), April 29, 2002. In the former it was held that he agent did not have the authority to represent the insured and in the latter it was held that the agent abused the tribunals's process by commencing proceedings when there were no issues in dispute.
Royal sought an award of its assessment fee pursuant to s. 282(11.2) of the Insurance Act. The arbitrator found that she was unable to award the assessment as it is only payable by an insured person. In light of the facts before her, she would not make an award as the Shusters had not commenced the proceedings.

With respect to ordering expenses to be paid by Mr. Volfson the arbitrator found that ss. 17 and 25.1 of the SPPA are complementary to the expenses power in the Insurance Act. She found that Mr. Volfson has been wilfully blind in his actions and had abused the Commission's process in attempting to collect monies in his discussions with Mr. Kazdan (a lawyer for Royal) when he knew that the account had been paid (p.23). The order for expenses against Mr. Volfson it would not cover the actual expenses incurred by Royal and the Shusters. While Royal could treat its actual expenses as a business expense, the Shusters would have to personally bear their own expenses. The arbitrator remarked that the case illustrates the need for a general equitable power so that in exceptional circumstances, solicitor and client costs may be ordered when that is appropriate (p.25).