Neutral Citation: 1994 ONICDRG 24
File No. A-003569
ONTARIO INSURANCE COMMISSION
BETWEEN:
ALEX CHERTIN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON PRELIMINARY ISSUE
The Applicant, Alex Chertin, submits that the State Farm Automobile Insurance Company should not be allowed to participate in the arbitration hearing because it did not serve its Response within the specified period. State Farm submits that the Response was served in time. In the alternative, it submits that if the Response was late, the time should be extended.
The preliminary issue is:
Is State Farm precluded from participating in the arbitration hearing because it failed to serve its Response within the required time period?
This issue was dealt with by way of written submissions. I received written submissions, dated February 25, 1994, from Mr. Harry P. Brown, Barrister and Solicitor, on behalf of State Farm. Mr. Chertin provided submissions, dated March 6, 1994.
Mr. Chertin was involved in a motor vehicle accident on November 8, 1990. He applied for and received accident benefits from State Farm under section 12 of Ontario Regulation 6721. A dispute developed and Mr. Chertin applied for mediation. The Report of Mediator, dated February 26, 1993, states that the issues were not resolved.
Mr. Chertin then submitted an Application for Appointment of an Arbitrator, dated August 29, 1993, which was received by the Ontario Insurance Commission on September 28, 1993. Unfortunately, Mr. Chertin's cheque for the filing fee was made payable to the Treasurer of Ontario, rather than the Minister of Finance. Mr. Chertin indicates that he completed the cheque as he was instructed.
Ms. Sally Baker, Manager of Arbitration Coordination at the Commission, wrote to Mr. Chertin, asking him to provide a cheque payable to the Minister of Finance. He provided the filing fee in cash on November 17, 1993. At that time, Mr. Chertin's application was treated as completed.
Section 11.1 of the Dispute Resolution Practice Code provides that the insurer is to file its Response by Insurer within fourteen days of receiving the Application for Appointment of an Arbitrator:
11.1 The insurer shall complete and serve a Response on the insured person and any other parties within fourteen (14) days of having received the Application for Appointment of an Arbitrator.
On November 17, 1993, Ms. Baker, wrote to Mr. Chertin at his apartment in Thornhill, Ontario, confirming the completion of his application. She also wrote to State Farm, as follows:
The regulations require your company to pay an assessment of $1,000.00 in respect of the arbitration. It is also required to complete and serve a Response by Insurer (Form 5) on Mr. Chertin and this office by December 06, 1993. Please note that in the Response you should indicate whether your company wishes to waive an oral hearing in this matter.
Some insurers are not filing their fees within the prescribed time, as set out in the Regulation. In future, insurers who are late in filing will not have standing to participate in the arbitration process, nor will they receive notices regarding the proceedings. In addition, the matter may be referred to the Superintendent of Insurance.
It is submitted on behalf of State Farm that it initially attempted to serve Mr. Chertin with its Response on November 20, 1993. State Farm provided a copy of the envelope, addressed to Mr. Chertin at his apartment in Thornhill, Ontario, that is postmarked November 20, 1993. The envelope is marked as returned to State Farm as "unclaimed".
On December 1, 1993, the Commission received correspondence from State Farm, dated November 26, 1993. Enclosed with the letter was a cheque for $1,000 and Statement of Service, indicating that a secretary at State Farm sent the Response to Mr. Chertin by regular mail on November 29, 1993. The letter also indicates the Response was enclosed, but it was not.
The Commission file also includes a Statement of Service signed by Mr. O'Brien, the claims superintendent at State Farm. It states that the Response was served on Mr. Chertin, at his apartment in Thornhill, Ontario, by registered mail on November 26, 1993.
The Commission scheduled a pre-hearing discussion for February 7, 1994. It also advised State Farm that although it had received various documents, including the fee of $1,000, the Response had not been included.
Mr. Brown, the lawyer acting for State Farm, sent a new Response, dated December 29, 1993. This was received by the Commission on January 4, 1994. I accept that this Response was a replacement, although it is not clear what became of State Farm's original Response.
Ms. Baker then wrote to Mr. Chertin, advising him that the documents from State Farm had been received on January 4, 1994, and inviting him to file a Reply by January 17, 1994. The Commission received a Reply from Mr. Chertin on January 25, 1994.
Although the documents are somewhat confusing, I accept that State Farm attempted to serve its Response on Mr. Chertin within the time period. I conclude, therefore, that State Farm is not precluded from participating in the arbitration.
Even if I am wrong in this conclusion, and the Response was not served with fourteen days of State Farm receiving Mr. Chertin's Application for Appointment of an Arbitrator, I would have no hesitation in extending the time limit. The Dispute Resolution Practice Code allows the Director or an Arbitrator to extend the time period:
42.3 The Director or arbitrator, as the case may be, may, upon such terms as he or she considers advisable, extend or abridge the time set out in this Code for doing any act, serving any notice, filing any report, document or paper or holding any proceeding.
Although Ms. Baker's letter, dated November 17, 1993, suggests that the time limit is absolute, the discretion to extend it remains with the Director or arbitrator. It is unfortunate that there was an initial confusion about the filing fee, but I find no indication that the matter has been delayed from the time that Mr. Chertin's fee was received in cash. In fact, the recent delay is due to Mr. Chertin's insistence that this technical issue be addressed before the pre-hearing discussion continues.
Order:
State Farm is entitled to participate as a party in the arbitration hearing.
March 14, 1994
David R. Draper Arbitrator
Date