The Appeals Process. Presented by David Evans, Appeals Officer

Transcription

1 The Appeals Process Presented by David Evans, Appeals Officer Good morning. My name is David Evans, and I am a Director s Delegate in the Appeals Unit of the Dispute Resolution Services at FSCO. Parties to an arbitration hearing have a statutory right of appeal to the Director of Arbitrations on a question of law. My colleague, Nancy Makepeace, and I are the Director s Delegates, appointed by him to hold such hearings, conduct proceedings, exercise the powers and perform the duties of the Director as necessary in any given appeal. Christina Pearce, the Appeals Administrator, assists us in our duties. Nancy and I both manage our own files. For that reason, we do not conduct settlement talks. We also do not generally conduct pre-hearings, although Rules 57 and 63.2 give us the power to conduct preliminary conferences for appeal or variation/revocation applications. As for the effect of our decisions, as reiterated in the recent Hejnowicz case, our decisions bind arbitrators, but not each other. However, we generally follow the principle that we should only depart from a previous interpretation of a statutory or regulatory provision in clear and cogent circumstances. 1 Today, I would like to describe the practical aspects for you as either appellant or respondent in a new appeal. I will point you to some resources and then set out what we consider when the file lands on our desks. I will also touch on applications for variation/revocation where necessary. The main resource is FSCO s web site, From the opening screen, click on Dispute Resolution Services to get to the DRS home page or type 25 in the Find Page box at the bottom, 2 where you ll find an introduction to DRS and a number of links. See p. 33 for the list of Statutes and Regulations governing FSCO. The Dispute Resolution Forms page (p. 186) includes 1 The delegation power arises pursuant to s. 6(4) of the Insurance Act, R.S.O. 1990, c. I-8, the Act, and rules 56.1 and 56.2 of the Dispute Resolution Practice Code, Fourth Ed., DRPC, as updated October The leading case on the binding effect of appeal cases and stare decisis is Vo and Maplex General Insurance Company and Insurance Bureau of Canada, (OIC P , December 12, 1997), as cited in Hejnowicz and Coachman Insurance Company, (FSCO P , August 3, 2006). 2 The English and French pages have the same page number.

2 links to the forms and also notices. The DR Forms themselves are listed at p. 43. The forms we are concerned with today, namely the Notice of Appeal and the Response to Appeal, Forms I and J, (as well as the Application for Variation/Revocation and its related Response, Forms K and L) are all now fillable. That means you can fill in the forms on-line, but you still have to print, serve and file them. In addition, each of these forms has a related Guide that sets out the relevant steps and some basic information on how to complete the form. Thus, you can turn to the Guides for basic information such as when to file the Notice of Appeal and a Response, as well as the time lines for submissions on appeal. As noted in the Guides, for a complete set of the rules for appeals, see the DRPC (p. 84). Essentially, I will provide a background to the Guides. Although I will focus on the Guide for filling in the Notice of Appeal, my comments are meant to be equally useful for respondents filling in the Response. At several points the Guide states that, for instance, if you do not want the usual rules relating to new evidence or stays of an arbitral order to apply, you have to provide an explanation. I will set out what we look for in those explanations by referring to the main cases that we rely on in making our preliminary decisions. However, I am making no attempt to be comprehensive, and I am describing cases as briefly as possible for the purpose of giving you a starting point. The process starts when the appellant files the Notice of Appeal, to which the respondent files a Response. The parties then file their respective submissions, following the time lines set out in the DRPC, and we set a hearing date. The hearings are usually in the form of oral submissions, held either at the Commission offices or out of town, although we can have hearings by teleconference or even simply on the record. I will focus mostly on the beginning of the process, since so much of what follows depends on it. Our involvement with an appeal commences after a Notice of Appeal has been filed and the Director appoints one of us as his Delegate. Usually, both the Notice of Appeal and the arbitration record are available to us from the beginning. The Appeal Record includes the record of the arbitration hearing, including all arbitration exhibits and, if it is filed, the transcript of the arbitration hearing. [R ] We then examine the Notice of Appeal in the context of the impugned 2

3 decision and the record to see if the appeal should be acknowledged or rejected. If we determine that a Notice of Appeal is incomplete or should be rejected under Rule 51.2, we will notify you of the rejection. [R. 51.3; application for variation/revocation, R ] Otherwise, we will promptly acknowledge the appeal. [R. 51.4; variation/revocation, R ] Rule 51.2 allows for the rejection of an appeal in the following circumstances: 51.2 An appeal may be rejected if: (a) it is out of time; (b) it does not raise a question of law; (c) it is from a preliminary or interim order that does not finally decide the issues in dispute; (d) the Notice of Appeal is incomplete or lacks sufficient details to allow the other party to respond; or (e) the appellant does not pay the required application filing fee. 3 Rejecting an appeal means the appeal goes no further. It is not a dismissal order and does not prevent either party from starting a new and proper appeal. For most of these grounds, we generally ask for comment before an appeal is rejected with the exception of failing to pay the required application filing fee [R. 51.2(e)]. As stated in the Guide: The application will be rejected if the filing fee is not enclosed. The fee is mandatory for us to open a file, whether or not the application is ultimately acknowledged. However, the insurer applying to appeal should not enclose the filing fee with its Notice of Appeal, as insurers are separately invoiced by the Commission for the $250 filing fee (as well as the separate insurer assessment of $500). The insured person who is applying to appeal does have to include the filing fee (payable by cash, or cheque or money order made out to the Minister of Finance), and the fee may not be waived, deferred, or refunded, but it may be recovered as part of an applicant s expenses. Similarly, once we open a file, the fee will be invoiced to an insurer that is appealing, even if the application is 3 For variation/revocation, see R. 61.4, which echoes the proscriptions against applications with respect to preliminary or interim orders (a), incompleteness (b) and failure to pay the fee (d). 3

4 ultimately rejected on some other ground. 4 Failure to pay the necessary filing fee is also a ground for rejecting an application for variation/revocation under R. 61.4(d). In passing, I note that the insurer assessment is treated somewhat differently from the application fee. As described in Fees and Assessments, an assessment of $500 is charged to an insurer that is a named party to an appeal or to a variation/revocation proceeding. The assessment is charged only if the appeal is acknowledged. O.Reg. 548/05 added a new s. 7 to the Expenses Schedule to O.Reg It provides that an insurer may be awarded its total assessment for appeals if the insured person, on or after March 1, 2006, refused or failed to submit to a s. 42 examination or refused or failed to provide any material relating to the claim that was required to be provided by s. 42(10) of the SABS I will now turn to the other grounds for rejecting an appeal. If at all possible, the appellant should deal with any such potential grounds in the Notice of Appeal. As the Guide notes with respect to appeals from preliminary or interim orders, for instance: It is likely that this issue will be decided without further submissions so your reasons should be as complete as possible. Astute responding counsel in turn may act quickly after receiving the Notice of Appeal and provide comment even before being asked. However, usually we will send a letter to the respondents asking them for comments and advising them that they do not need to file a Response unless and until we decide to acknowledge the appeal. An appeal may be rejected if it is out of time. [R. 51.2(a).] (As discussed below, this is not a ground for rejecting a variation/revocation application.) The Notice of Appeal must be served and filed within 30 days of the date of the Arbitration order, but this is subject to extension by us for reasonable grounds. [Act, ss. 283(2), (3); DRPC, Rule 52.] If you are filing late, you should set out why you believe reasonable grounds exist for such an extension. We consider the test for extending time in s.283(3) of the Act to be broad and may include consideration of several factors, such as: the existence of a bona fide intention to appeal; the length of the delay in applying 4 See in general the Financial Services Commission of Ontario Act, S.O. 1997, c. 28, s. 27, and its associated regulation, O. Reg. 11/01. Section D of the DRPC sets out fees and assessments. 5 This Regulation is made in English only. 4

5 for the extension; the merits of the proposed appeal; and, any prejudice to the other party and whether it is compensable or not. In Sittler, for instance, the appellant had no intention of appealing until there was an apparent change in the law. The Director stated: Chaos would result if, every time a court decision or a Commission pronouncement appeared to differ from a finding in an arbitration case, the Director granted an extension of time allowing an appeal of a decision that the parties have been living with peaceably to proceed. However, as in Lanctot, even if there was an ongoing intention to appeal, the passage of time can lead to the appeal s rejection on the basis of prejudice. If the delay is short, and especially if there are other grounds, such as the appealing party otherwise acting expeditiously, or there are conflicting arbitration decisions, then as in cases such as Mussa and Edwards the appeal will likely be accepted. 6 Since the principles for extending time limits are now well established, we generally issue only letter decisions. With respect to the time limits, you should note that if the respondent also intends to appeal the arbitration order, a separate Notice of Appeal must be completed and the time periods for appeal, as set out above, apply. [R ] In the early Levenson case, after an appeal was brought with respect to the main decision, the respondent brought a cross-appeal with respect to an interim decision. The Director held that, in the circumstances of that case, the respondent was not out of time for not having filed an appeal within 30 days of the interim decision. However, in Balwinder Singh, the Director considered that the cross-appeal was brought strictly on a question of fact and only because there was an appeal, so she refused the extension of time. 7 The passage of time is not a ground for rejecting an application for variation/revocation. For instance, variation may be sought years after a decision on the basis of a material change in circumstances. 8 6 Sittler and Canadian General Insurance Company, (OIC P , August 11, 1995); Lanctot and Zurich Insurance Company, (FSCO P , June 26, 2003); Mussa and Allstate Insurance Company of Canada, (OIC P , February 1, 1996); Edwards and State Farm Mutual Automobile Insurance Company, (OIC P , February 26, 1996). 7 Levenson and The General Accident Assurance Company of Canada, (OIC P , September 29, 1992); Singh and Simcoe Erie Group, (OIC P , February 2, 1994). 8 See for instance Riley and Pilot Insurance Company, (FSCO P V, February 29, 2000), upheld (P , June 12, 2002). 5

6 The nature of the appeal in Singh that it was based on a question of fact played a role in the order. Since the decision in Singh, s. 283(1) of the Act was amended to exclude appeals on questions of fact: A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law. Hence, the DRPC in Rule 50.1 similarly provides: A party to an arbitration may appeal an order of an arbitrator to the Director only on a question of law. It also provides in R. 51.2(b) that an appeal may be rejected if it does not raise a question of law. Accordingly, if you are appealing what seem to be essentially factual findings, you should address this issue. Alternatively, we may invite comment if we feel that the appeal does not seem to raise a question of law. You should address the criteria in Lombardi 9 for considering whether the alleged error is a simple error of fact and hence not appealable, or rather amounts to an appealable error of law. In that case, the Director s Delegate noted that a finding of fact made in the complete absence of supporting evidence amounts to an error of law. In addition, however, he noted that one can characterize at least two other types of findings as errors of law: findings that are made on the basis of conjecture; and, findings that arise from a misapprehension of the evidence that is caused by a misdirection on a legal principle. On a practical note, if you have to address this issue, the space on the form has a check box for Extra sheets attached. Often, counsel will simply deal with all the matters raised in the form in a separate, attached schedule. Similarly, there is a fair amount of space on p. 1 of the Response where respondents are directed Briefly explain your response to the appellant s reasons for appeal. (Questions of law only.) Respondents often raise the question of law issue and ask for the appeal to be rejected on the ground that there is simply an appeal on the facts. Again, as with the appellant, the respondent can attach extra sheets. In most cases, we simply leave any dispute about whether the appeal raises a question of law to be decided after the appeal hearing. There may be expense consequences if we find that there was no question of law. 2003). 9 Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P , February 26, 6

7 Again, since an application for variation/revocation often turns on new evidence, there is no restriction to questions of law. However, where the applicant s variation application was really an attempt to re-litigate the appeal, it was denied. 10 An appeal may be rejected if the Notice of Appeal is incomplete or lacks sufficient details to allow the other party to respond. [R. 51.2(d).] This provision has been rarely invoked, although there are a couple of cases from the mid-1990s. In Abedi, the Notice of Appeal was prepared by an unrepresented claimant who was not held to the standard of a professional advocate. In Boateng, although the Notice of Appeal lacked a detailed statement of the grounds for appeal, it was sufficient for the insurer to respond. 11 On a related note, it has been held that the notice can be amended after the expiry of the time for initiating an appeal. In Welsh, the Director s Delegate held that because Mr. Welsh met the initial requirement of filing his Notice of Appeal within 30 days, he did not have to rely on Rule 52.2 (the equivalent of the extension of time provided for in s. 283(3) of the Act). The Delegate did use the Rule as a starting point, and found that prejudice is the major factor to be considered; less important factors include the length of the delay, the reason for the delay, and the substance of the proposed amendment. Welsh was followed in Driver, where the Notice of Appeal mentioned only s. 14 of the SABS-1996 (medical benefits), but the written submissions were framed entirely in terms of s. 15 (rehabilitation benefits). The Delegate found no surprise or any prejudice due to the change in the ground of appeal because the insurer s written submissions in the arbitration dealt with both ss. 14 and The majority of our decisions on whether to accept or reject an appeal deal with appeals from a preliminary or interim order that did not finally decide the issues in dispute. [R. 51.2(c)] In that regard, Rule 50.2 provides: A party may not appeal a preliminary or interim order of an arbitra- 10 Lukachko and Allianz Insurance Company of Canada, (FSCO P , April 9, 2003). 11 Abedi and Pilot Insurance Company, (OIC P , June 22, 1994); Boateng and Cumis General Insurance Company, (OIC P , July 22, 1996). See the equivalent R. 61.4(b) for variation/revocation. 12 Welsh and Economical Mutual Insurance Company, (FSCO P , April 23, 2003); Driver and Traders General Insurance Company, (FSCO P , November 18, 2003). 7

8 tor until all of the issues in dispute in the arbitration have been finally decided, unless the Director [or his Delegate] orders otherwise. 13 As an example of the application of this rule, a finding in a preliminary issue hearing that the applicant was not in an accident would not be within its scope, since such a finding, by precluding the applicant from continuing with her case, essentially decides all the issues in dispute. Conversely, a finding that the applicant was in an accident would not finally decide all issues in dispute, so the Rule would apply. Most of the published decisions on these matters appeared a couple of years ago, 14 and since then we have tended to issue letter decisions. The preferred practice, as suggested by Delegate McMahon in Govani, is that, when scheduling a preliminary issue hearing at a pre-hearing, the parties should discuss the implications of an appeal and whether it should proceed in advance of the remaining issues or be deferred, and that discussion should be recorded in the pre-hearing letter. If you are appealing from a preliminary issue decision, or are responding to such an appeal, you should be aware that we consider factors such as: whether the issue in dispute goes to the basis for the insured person s application for arbitration (for example, time limits) or relates to an evidentiary or procedural issue (for example, attendance at an insurer s examination); the merits and significance of the appeal; whether the parties discussed potential appeals when requesting a preliminary issue hearing at arbitration; whether either party will suffer irreparable prejudice or hardship if the appeal is rejected or acknowledged; the balance of convenience between the parties; and any other factor affecting fair and cost-effective resolution of the dispute. As stated in the relatively recent review of these principles in Pato, the aim is to ensure that protracted 13 Rule 61.2 for variation/revocation is similar. Contrast s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C-43, which provides that an appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice. 14 See: Govani and Motor Vehicle Accident Claims Fund, (FSCO P , May 13, 2002); Pato and National Frontier Insurance Company, (FSCO P , February 5, 2003); Bolger and CGU Insurance Company of Canada, (FSCO P , May 29, 2003); Pinhasov and Guarantee Company of Canada, (FSCO P , September 4, 2003). 8

9 disputes over procedural matters do not jeopardize a timely or affordable hearing of the substantive issues. Thus, appeals from decisions denying insurer examinations have usually been rejected as being largely evidentiary or procedural, unless the legal basis for the appeal is particularly strong. As an example, Director s Delegate Makepeace accepted an appeal on a sweeping order for production for inspection by the arbitrator of documents subject to a claim of solicitorclient privilege. 15 Assuming the appeal is acknowledged, there are two other preliminary issues we frequently address, either in our letters of acknowledgment or in a subsequent ruling: stays and fresh evidence. With respect to the former, as stated in the Guide: The usual rule is that an appeal does not stop the Arbitration order from taking effect. [R. 50.3; Act, s. 283(6).] If the appellant seeks a stay (such as an insurer as appellant seeking a stay of a requirement to pay benefits), we will ask the respondent to address the stay request in the Response. Indeed, a good portion of p. 2 of the Response is provided for this purpose, where it is stated: Set out your response to the preliminary matters raised in the Notice of Appeal (transcript, stay, appeal of a preliminary or interim order, new evidence). Our approach to a stay request is guided by the principles summarized by Director s Delegate McMahon in Armstrong and Guardian Insurance Company of Canada, (FSCO P , July 20, 2000, namely: the bona fides of the appeal, the substance of the grounds for appeal, and the hardship to the respective parties if the stay is granted or refused. We consider each criterion in turn. I have touched above on matters relating to the first two criteria, such as a cross-appeal brought simply because there was an appeal or an appeal brought simply on a question of fact. However, our assessment of the merits of an appeal is limited to the arbitration decision, the Notice of Appeal and the Response, so we consider caution appropriate. Accordingly, it often happens that we focus most on the last criterion. The hardship depends on the award for which a stay is sought. Insurers often raise the specter of not being able to recover 15 The appeal subsequently settled. 9

10 monies they have paid if there is no stay. However, absent a particular reason for special concern, we are generally reluctant to order a stay of income benefits since s. 283(6) reflects the legislature s intention of protecting an insured person s income stream pending the outcome of an appeal. Appeal adjudicators have held that somewhat different considerations apply to special awards, which are not intended to provide an income stream, but serve a penalty function. However, even here a complete stay may not be granted. For instance, in Amato, 16 the Director ordered the insurer to pay a considerable portion of the special award pending the appeal, but not the entire amount. A stay may be more likely to be granted, at least in part, if the appellant has raised a compelling issue of law. The entire circumstances of the case may also affect whether we grant a complete or partial stay, such as if there is a large retroactive payment of benefits ordered on the basis of a new or different interpretation of the law. With respect to fresh evidence, the Notice of Appeal also contains a space on p. 2 for the appellant to: List any evidence that you intend to rely on that was not part of the Arbitration hearing. Explain why this evidence is necessary. That space is not meant to encourage you to seek to file fresh evidence. In fact, fresh evidence has not been generally accepted because, after all, an appeal is on issues of law and is not a re-hearing of the arbitration proceeding. The criteria for admitting fresh evidence were first set out early on in the Plows case by Director s Delegate Richardson based on both criminal and civil appeal cases and the tests applied in them, and these were accepted by the Director in Bruno. 17 The criteria include: 1. the evidence should generally not be admitted if by due diligence it could have been adduced at trial; 2. the evidence must be reasonably capable of belief; 3. the evidence must relate to a decisive or potentially decisive issue, and 4. the evidence, if believed, taken with other evidence adduced at trial, could reasonably have affected the result. 16 Amato and Wawanesa Mutual Insurance Company, (FSCO P , October 3, 2005). 17 Plows and Jevco Insurance Company, (OIC P and P , May 22, 1992), adopting Palmer v. The Queen, [1980] l S.C.R. 759, as reiterated in R. v. Stolar, [1988] 1 S.C.R. 480; Bruno and Liberty Mutual Insurance Company, (OIC P , August 31, 1993). 10

11 We may or may not rule on fresh evidence prior to the hearing, but our rulings are reflected in our decisions. The Director s Delegate in Ms. Z rejected a doctor s additional letter because it was an attempt to repair oral evidence, prejudicial to party relying on that oral evidence, and unpersuasive because of its apparent purpose; in short, she concluded it was exactly the sort of document the fresh evidence rule is intended to exclude. In Kassa, the appellant sought to file materials demonstrating his attempts to answer documentary undertakings. These were refused on the basis that it would be manifestly unfair: What efforts Mr. Kassa made or did not make to secure these medical records was at the heart of the hearing. Any evidence concerning his or his counsel s efforts could and should have been put forward at the arbitration hearing. However, in Budd, the appellant was not seeking to introduce an entirely new document but just to have the Director s Delegate consider the full text of a document that was already in evidence. 18 I note that, by contrast, the existence of new evidence is a prerequisite under two of the three grounds for applying for variation/revocation under R They are that (a) there has been a material change in the circumstances of the insured, or (b) evidence not available on the arbitration or appeal has become available. (The other ground is that (c) there is an error in the order.) Certainly, in the case of a material change in circumstances, the basis for the application is new evidence that has arisen since the hearing. However, in the case of evidence that was not available on the arbitration or appeal, generally the fresh evidence should still only be admitted if a diligent party could not have been expected to have presented it at arbitration, and it could reasonably be expected to have had an important influence on the decision. 19 One other area where an appellant may be required to provide an explanation is if the arbitration was recorded but no transcript is being ordered (p. 2 of the Notice of Appeal). In Ms. Z, the insurer was ordered to obtain the complete transcript of a doctor s evidence where it had ordered 18 Ms. Z and Dominion of Canada General Insurance Company, (FSCO P , September 11, 2001); Kassa and Economical Mutual Insurance Company, (FSCO P , July 26, 2001), confd. [2002] O.J. No. 4404, Div. Ct.; Budd and Personal Insurance Company of Canada, (FSCO P , January 8, 2000). 19 See Ready and Progressive Insurance Company and Zurich Insurance Company, (OIC V and V , June 25, 1997), and Lukachko, cited above. 11

12 and been relying only on the cross-examination. However, although a Director s Delegate has the power to order the insurer to pay for the transcript on an interim basis, that power was not exercised in McAngus where there was no specific allegation that the oral testimony was ignored or misunderstood by the arbitrator or that it rebutted the adverse documentary evidence that supported the arbitrator s conclusions. Of course, if a transcript is ordered, the time lines for written submissions do not start until the transcripts are received by both parties. 20 [R ] I have touched on variation/revocation applications above. The procedure is set out in Part 5 of the DRCP. One unique ground for rejecting a variation/revocation application is if it is in respect of an order that has been appealed, and the appeal is pending. [R. 61.4(c).] In Brady and Personal Insurance Company of Canada, (FSCO P , November 26, 1998), the insurer in its submissions added a request for variation/revocation as an alternative to the appeal. This was not allowed. The procedure for variation/revocation is similar to appeals. The application filing fee for a variation/revocation of an arbitration or appeal order is $250. Either party can apply by completing Form L, Application for Variation/Revocation, and if the application is acknowledged, the other party has 20 days to complete a Response to Application for Variation/ Revocation. The FSCO web site also provides guides for both of these forms. The Director may decide the case, delegate the hearing, or have the original adjudicator or another adjudicator decide it. Rule 54 (submissions) applies. Variation/revocation is required in certain circumstances. For instance, where an arbitrator has ordered the payment of weekly benefits, an insurer cannot terminate them on the basis of new medical information like a new insurer s exam without first applying for a variation (or possibly appeal) of the order McAngus and Guardian Insurance Company of Canada, (FSCO P , January 10, 2000). 21 Nelson and Liberty Mutual Insurance Company, (FSCO A , November 8, 2001). 12

13 With respect to mistakes in the order, the remaining ground for application/variation, it should be noted that whereas the previous version of the DRPC did not specifically give arbitrators the power to clarify their decisions, R of the current DRPC provides that an adjudicator may at any time clarify a decision or order that contains a misstatement, ambiguity or other similar error See Shadd and Liberty Mutual Insurance Company, (FSCO P , December 24, 2002) for the law under the previous Code. The new rule was applied in Videnov and Royal & SunAlliance Insurance Company of Canada, (FSCO A , April 11, 2003). 13