Case Name: Graham v. Coseco Insurance Co./HB Group/Direct Protect

Page 1 Case Name: Graham v. Coseco Insurance Co./HB Group/Direct Protect Appearances: Between: Malvia Graham, applicant, and Coseco Insurance Co./HB Group/Direct Protect, insurer [2002] O.F.S.C.I.D. No. 40 File No. FSCO A01-000281 Ontario Financial Services Commission D. Leitch, Arbitrator Heard: February 12, 2002 by conference call Decision: March 8, 2002 (33 paras.) Jadranka Cavrak, for Ms. Graham. Catherine Byrne, for Coseco Insurance Co./HB Group/Direct Protect. Issues: REASONS FOR DECISION 1 The Applicant, Malvia Graham, was injured in a motor vehicle accident on April 16, 1999. She applied for statutory accident benefits from Coseco Insurance Co./HB Group/Direct Protect ("Coseco"), payable under the Schedule. 1 Disputes arose which the parties were unable to resolve through mediation and Ms. Graham applied for arbitration. However, at the pre-hearing, Ms. Graham sought to withdraw her application for arbitration. Coseco was prepared to agree to the withdrawal but only if it obtained two awards, one in respect of its assessment fee and another in respect of its arbitration expenses. Ms. Graham disputed Coseco's right to obtain such awards. The

Page 2 pre-hearing letter identified the following two issues for arbitration: Result: 2 Background: 1. Is Ms. Graham liable to pay an amount to Coseco that does not exceed the amount assessed against Coseco in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because she commenced an arbitration that is frivolous, vexatious or an abuse of process? 2. Is Ms. Graham liable to pay Coseco's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8? 1. Ms. Graham is not liable to pay an amount to Coseco pursuant to subsection 282(11.2) of the Insurance Act. 2. Ms. Graham is not liable to pay Coseco's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8. 3 A Mediator's Report dated June 15, 2000 states that the parties were unable to resolve disputes regarding Ms. Graham's entitlement to income replacement benefits, medical benefits, housekeeping expenses and examination expenses. In accordance with section 281(1) of the Insurance Act, Ms. Graham elected to pursue her right to these statutory accident benefits by commencing an action against the alleged tortfeasor and Coseco in the Superior Court of Justice. Ms. Graham's Statement of Claim was issued by the Local Registrar on August 25, 2000. 2 Ms. Graham is represented in that action by Goldentuler & Associates. 4 A second Mediator's Report dated February 9, 2001 states that the parties were unable to resolve disputes regarding Ms. Graham's entitlement to additional examination expenses, different from the examination expenses mentioned in the Mediator's Report of June 15, 2000. Whereas the first Mediator's Report had identified examination expenses in the amount of $2,400 for "a Job Site analysis and O.T. assessment by Career Navigators," the second Mediator's Report identified examination expenses in the amount of $3,022.75 for "assessments and reports provided by Deahy Medical Assessments on May 18, 2000." However, both Mediators' Reports confirmed that Ms. Graham claimed her examination expenses pursuant to section 24 of Part VI of the Schedule. Ms. Graham elected to pursue her right to payment for the Deahy account by filing an Application for Arbitration, received by the Financial Services Commission of Ontario ("FSCO") on February 22, 2001. The Application for Arbitration states that Ms. Graham is again represented by Goldentuler & Associates. 5 As stated above, Ms. Graham sought to withdraw her application at the pre-hearing. This discussion took place on September 12, 2001. Ms. Graham indicated that she now intended to

Page 3 pursue her right to payment for the Deahy account through her court action. Coseco agreed that this examination expense claim could be advanced in Ms. Graham's court action but it did not agree that Ms. Graham should be permitted to withdraw her Application for Arbitration on an unconditional basis. 6 Rule 70 of the Dispute Resolution Practice Code establishes that Ms. Graham is obliged to seek permission to withdraw her Application for Arbitration and that Coseco is entitled to seek awards in respect of its assessment fee and its arbitration expenses before agreeing to such a withdrawal. Evidence: 7 In paragraph 2(a)(vi) of her Statement of Claim, Ms. Graham sought to recover the "cost of examination expenses, pursuant to part VI, section 24 of the schedule, from April 16, 1999, ongoing." 3 In paragraph 2(d) and (e) of her Statement of Claim, Ms. Graham advanced a claim for punitive, aggravated and exemplary damages. 8 When counsel for the Insurer, Mr. Ted Charney, learned that Ms. Graham intended to proceed to arbitration in respect of the Deahy account, he wrote a letter dated February 19, 2001 to Goldentuler & Associates. Mr. Charney's letter 4 reads as follows: I have your fax of February 14, 2001 and proposed application for arbitration. Currently, your client has commenced proceedings in the Superior Court of Justice claiming various accident benefits. Accordingly, I would suggest you include the additional issues that were recently mediated as part of the ongoing court proceedings. Alternatively, if you decide to apply for arbitration, please take notice of our intention to add to the arbitration, all of the existing issues which are currently the subject matter of the court proceedings. It is our position that all of these matters should be dealt with in one forum and if you intend to proceed to arbitration, then we will use the arbitration as the forum to dispose of these matters. 9 Mr. Charney apparently received no reply to this letter and wrote a second letter to Goldentuler & Associates dated March 27, 2001 5 which reads as follows: Further to our recent conversation at which time I informed you that a $3,000.00 levy would be assessed against the insurer, unless you withdrew your application for arbitration by the response date, we now enclose our Response to the Application for Arbitration. We have filed this response as the time period for doing so expires today. Having not heard from you in connection with withdrawing the application for arbitration, we have no choice but to respond. Consequently, we trust you will discontinue the court proceeding against Coseco

Page 4 Insurance Company and proceed to adjudicate all matters in dispute through the services of the Financial Services Commission. In the event you disagree, please advise and we will institute the appropriate interlocutory proceedings. 10 In keeping with this second letter, the Insurer's Response to Ms. Graham's Application for Arbitration (which was also completed by Mr. Charney) addressed all of Ms. Graham's claims, including those advanced in her Statement of Claim. The Insurer did not file a Statement of Defence6 in the court action until after Ms. Graham indicated that she wanted to withdraw her Application for Arbitration and advance all her claims in court. 11 Ms. Graham was represented in the proceeding before me by Ms. Jadranka Cavrak of the law firm, Goldentuler & Associates. Ms. Cavrak supplied the following explanation for that law firm's decisions, first to file, and then to seek to withdraw, Ms. Graham's Application for Arbitration. 12 Ms. Cavrak stated that when Goldentuler & Associates filed Ms. Graham's Statement of Claim in August 2000, the firm was unaware of the Deahy account. She claimed that when the firm subsequently became aware of the Deahy account and filed the Application for Arbitration to recover only that account, it did so on the understanding that Ms. Graham was permitted to "split the venue" 7 in this way. According to Ms. Cavrak, Goldentuler & Associates only became aware of the FSCO case law discouraging venue-splitting well after the time allowed for Coseco's response to Ms. Graham's Application for Arbitration in February 2001. Ms. Cavrak was unable to indicate the exact dates when Goldentuler & Associates became aware of the Deahy account or the relevant FSCO case law. 13 Coseco's claim for an expense award was supported, in part, by a $1,336 bill 8 it received from Mr. Charney for his correspondence with Goldentuler & Associates and for his time in preparing for, participating in and reporting on the pre-hearing. In addition, Ms. Byrne indicated that she would charge Coseco $480 for her time in preparing for the hearing before me and that Coseco, therefore, claims total arbitration expenses in the amount of $1,816. 9 Arguments: 14 Ms. Byrne submitted that the FSCO case law discouraging venue-splitting was clearly established by August 2000, the month when Ms. Graham filed her Statement of Claim and six months before she filed her Application for Arbitration. She noted that since Ms. Graham's court action sought to recover section 24 examination expenses "from April 16, 1999, ongoing," it covered the Deahy account dated May 18, 2000. Ms. Byrne pointed out that despite Mr. Charney's letter dated February 19, 2001, stating that "all of these matters should be dealt with in one forum," Goldentuler & Associates persisted in filing a separate Application for Arbitration in respect of the Deahy account and only sought to withdraw that application after Coseco had paid the required $3,000 assessment fee. In Ms. Byrne's submission, Goldentuler & Associates' conduct in this case amounted to an abuse of process, deserving of awards in Coseco's favour under section 12(2) paragraph 3 of the Expense Regulation 10 and under section 282(11.2) of the Insurance Act. 11

Page 5 15 Ms. Cavrak denied the allegation of abuse of process. She submitted that earlier FSCO case law had permitted venue-splitting and she maintained that her firm "promptly withdrew the Application at the pre-hearing" 12 on September 12, 2001. She pointed out that there was nothing frivolous, vexatious or abusive about the Deahy account itself. Based on the comments of the arbitrator in the case of Catlos v. Jevco Insurance Company, 13 Ms. Cavrak argued: It has been held that a finding that an Applicant has abused the Commission's process should not be made lightly. More must be shown than that an insurer has incurred costs in the course of the proceeding. There must be some evidence of improper purpose, the conduct muse [sic] be contemptuous of the process. 14 16 In addition, Ms. Cavrak maintained that since Coseco's Statement of Defence alleges that Ms. Graham failed to comply with sections 33 and 42 of the Schedule, Ms. Graham would have been forced to withdraw her Application for Arbitration in any event in order to seek relief from forfeiture, a remedy only available in court. 17 Finally, Ms. Cavrak submitted that Coseco is not entitled to arbitration expenses because it has employed the same law firm to defend both the court action and the arbitration with the result that the latter has not put the Insurer to any additional expense. Analysis and Conclusions: 18 I begin by agreeing with Ms. Byrne that since August 1, 2000, FSCO case law has strongly discouraged venue-splitting. On that date, Director's Delegate David Draper released the Lloyd's and Mangat decision 15 in which he enumerated the criteria to be considered in determining whether or not an applicant is entitled to proceed to arbitration when he/she has also commenced a court action in respect of the same accident. 19 Coseco did not request a finding that Ms. Graham was not entitled to proceed to arbitration in respect of the Deahy account. While I therefore do not make such a finding, I note that one would appear to have been justified on a consideration of the eight criteria enumerated in the Lloyd's and Mangat decision: (1) the court action was started before the arbitration proceeding and is broader in scope, (2) the same parties are involved and Ms. Graham carries the burden of proof in both forums, (3) the court action is broad enough to include the benefits claimed in the arbitration proceeding, (4) the court action includes a claim for punitive damages, (5) the court action includes a claim for weekly income benefits and to other examination expenses which may involve the same evidence, (6) there is no obvious impediment to Ms. Graham adding the issues to the court action, (7) the two proceedings may require substantially overlapping medical evidence and (8) the overlapping factual and legal issues create a real possibility of inconsistent findings. 20 Nevertheless, the Lloyd's and Mangat decision represented a new approach to the issue of venue-splitting. This fact was clearly present in the mind of the Director's Delegate when, after deciding that Mr. Mangat was not entitled to proceed to arbitration, he turned to address Lloyd's

Page 6 claims for the return of its assessment fee and for its arbitration expenses. The last paragraph of the Director's Delegate's decision in Lloyd's and Mangat is of particular importance for the issues before me. It reads as follows: In my view, Mr. Mangat's actions cannot be regarded as abusive. There was substantial support in the arbitration decisions for splitting claims between court and arbitration. Further, as noted above, Lloyd's condoned this approach to some extent. As a result, I am not persuaded that Mr. Mangat should be ordered to pay Lloyd's assessments. For similar reasons, I am not prepared to require Mr. Mangat to pay Lloyd's expenses. Rather, the parties will bear their own expenses, both at arbitration and on appeal. 16 21 Likewise, in the case of Royal & Reid, 17 also released on August 1, 2000, the same Director's Delegate overturned the Arbitrator's decision that Ms. Reid was entitled to proceed to arbitration despite her court action but he refused to overturn the Arbitrator's decision that Royal was not entitled to its expenses or to the return of its assessment fee. Ordering instead that the parties bear their own expenses, the Director's Delegate held: Ms. Reid's actions must be evaluated in light of the jurisprudence at the time. As there was considerable support in the arbitration decisions for splitting claims between court and arbitration, it would be unfair to criticize her to any significant degree. 18 22 Coincidentally, it was the same Director's Delegate who, in 1997, heard an appeal from the Catlos decision cited by Ms. Cavrak. After quoting the Arbitrator's comments as paraphrased by Ms. Cavrak, the Director's Delegate made the following remark of significance for present purposes: "... abuse of process may not be limited to situations of improper purpose or contemptuous conduct." 19 23 Finally, I note that according to the case of Gik and Zurich Insurance Company, 20 I do not have the jurisdiction to order Ms. Graham's representative, Goldentuler & Associates, to pay the expense and assessment awards sought by Coseco. 24 Taking all these factors into consideration, I regard this as a difficult case involving competing interests. 25 On one view of the matter, it is clear that Coseco did not condone or contribute in any way to Ms. Graham's attempt to split the Deahy account from the rest of her claims. On the contrary, Mr. Charney's correspondence to Goldentuler & Associates clearly stated Coseco's position that Ms. Graham was only permitted to pursue her claims in one forum. Mr. Charney's correspondence was timely and reflected current case law. If abuse of process is not limited to situations of improper purpose or contemptuous conduct, then it can be extended to cover situations like the present one where, however innocently, Ms. Graham put Coseco to the expense of responding to an Application

Page 7 for Arbitration which, arguably, should never have been filed in the first place. 26 On another view of the matter, any law firm should reasonably expect to be excused for not knowing about a change in FSCO case law the day after, a month after, or perhaps even six months after, the release of the decision which brought about that change. In this case, Mr. Charney's correspondence to Goldentuler & Associates did not refer to any specific change in FSCO case law or to the Lloyd's and Mangat decision in particular. Given that Goldentuler & Associates cannot be held directly responsible for its lack of awareness of the Lloyd's and Mangat decision, it would be unfair to hold Ms. Graham responsible for this lack of awareness, even if she could try to recover her losses from Goldentuler & Associates in another forum. 27 While I acknowledge these competing interests, the ultimate resolution of this matter turns on the proper interpretation of the expression "abuse of process." As I am bound to do, I fully accept the Director's Delegate's view that abuse of process may not be limited to situations of improper purpose or contemptuous conduct. However, in my opinion, this expression should not be extended to cover the present case for two reasons. 28 First, as a result of Ms. Graham's decision to seek to withdraw her Application for Arbitration, her right to proceed to arbitration in respect of the Deahy account has never been specifically argued and adjudicated. I agree with the arbitrator in the Catlos case when he observed that "a finding that an applicant has abused the Commission's process should not... be made lightly." 21 29 I am reluctant to make such a finding in the present case because I have not made the underlying finding that it would be based on, namely, that Ms. Graham was not entitled to proceed to arbitration in respect of the Deahy account. 22 30 Second, I regard Ms. Graham's Application for Arbitration as a genuine and guileless attempt to access the arbitration process in a manner in which it was indeed more accessible only six months before the Application was filed, that is, before the Lloyd's and Mangat decision was released. Goldentuler & Associates' lack of awareness of this decision was obviously not commendable but it was, in my view, understandable given the uneven evolution of FSCO case law in this area. 31 Accordingly, I conclude that Ms. Graham's application is not fairly or accurately characterized as an abuse of the arbitration process deserving of an assessment penalty or an expense award. I, therefore, allow Ms. Graham to withdraw her application without the conditions sought by Coseco. 32 Despite Ms. Graham's success in resisting the conditions for withdrawal sought by Coseco, the circumstances of this case do not justify an expense award in her favour. Each party will, therefore, bear its own expenses in relation to this hearing. ARBITRATION ORDER 33 Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

Page 8 1. Ms. Graham is not liable to pay an amount to Coseco pursuant to subsection 282(11.2) of the Insurance Act. 2. Ms. Graham is not liable to pay Coseco's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8. qp/i/nc/qlamc 1 The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00. 2 Exhibit 3, p. 2. 3 Exhibit 3, p. 5. 4 Exhibit 1, p. 4. 5 Exhibit 1, p. 5. 6 Exhibit 2, p. 17. 7 Exhibit 2, p. 6, par. 14. 8 Exhibit 1, p. 6. 9 Exhibit 1, p. 3. 10 Expense Regulation 12(2) An arbitrator may award expenses to an insurer or insured person under subsection 282(11) of the Act if the arbitrator is satisfied that the award is justified, having regard to the following criteria:... 3. Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process. 11 Assessment against insured person. (11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is

Page 9 frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14. 12 Exhibit 2, p. 7, par. 21. 13 (OIC A96-000183, February 7, 1997) at p. 7. 14 Exhibit 2, p. 7, par. 20. 15 Non-Marine Underwriters, Mbrs. of Lloyd's and Mangat (FSCO Appeal P00-00020, August 1, 2000). 16 ibid., p. 17. 17 Royal & SunAlliance Insurance Company of Canada and Reid, (FSCO Appeal P00-00014, August 1, 2000). 18 ibid., p. 13. 19 Jevco Insurance Company and Catlos, (FSCO Appeal P97-00013, September 26, 1997). 20 (FSCO A00-001144, October 4, 2001). 21 Op. cit. note 13. 22 I acknowledge that had Coseco requested such a finding, Ms. Graham may have responded that the issue was rendered moot by her request to withdraw her Application. Since Coseco made no request for such a finding, the issue of mootness was not raised or argued before me. I nevertheless observe that, on my view of this case, Ms. Graham's right to proceed to arbitration is far from moot; it is the alleged non-existence of this right which gives rise to Coseco's abuse of process argument.