Neutral Citation: 1994 ONICDRG 87

File No. A-006241

ONTARIO INSURANCE COMMISSION

BETWEEN:

WILLIAM PETERSON

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The issue in this case concerns a request for an adjournment of a scheduled hearing date. The request was denied for the reasons which follow. The issue at the arbitration involved the continuing entitlement and quantum of weekly benefits. I heard no evidence on the substantive issues.

Hearing:

The hearing was held in North York, Ontario, on September 12, 1994, before me, Fred Sampliner, arbitrator.

Present at the Hearing:

Applicant:

William Peterson

Applicant's

Deepak B. Paradkar

Representative:

Barrister and Solicitor

Insurer's

Stephen B. Macauley

Representative:

Barrister and Solicitor

Evidence and Findings:

History of the Dispute Proceedings:

The background to the hearing is as follows: Mr. Peterson's entitlement and quantum of weekly benefits was mediated between August 23, 1993 and October 19, 1993. He was represented by Mr. Shale Wagman, a lawyer. On October 20, 1993, the mediator issued a report in which he concluded that the parties' differences about weekly benefits had not been resolved.

Mr. Peterson applied for arbitration of the unresolved issues, rather than pursuing a lawsuit in the court system. His application, date stamped by the Ontario Insurance Commission ("the Commission") November 5, 1993, was filed by his lawyer, Mr. Shale Wagman. Royal Insurance Company of Canada ("Royal") filed a response denying the claim.

A pre-hearing conference was set for February 16, 1994, after consultation with the parties. Both the parties and their representatives were requested to attend. The pre-hearing conference affords parties and counsel an opportunity to fully discuss the facts and issues, exchange documents and other information, and canvas settlement possibilities. The pre-hearing arbitrator, who acts as a neutral moderator in the discussion, also sets the arbitration hearing date in consultation with the parties and their counsel.

The pre-hearing is a very important stage in the proceedings. It is the one formal occasion when the parties and their representatives can meet, exchange information and decide the future conduct of the arbitration.

Mr. Peterson and Royal's lawyer attended the pre-hearing conference on February 16, 1994. Unfortunately, Mr. Peterson's lawyer did not appear.

After the pre-hearing, the arbitrator sent both lawyers a letter outlining the pre-hearing discussions. The letter provided background facts to Mr. Peterson's claim and identified that entitlement to weekly benefits, the amount of the weekly benefits and repayment of weekly benefits to Royal were the issues to be decided at the hearing. The hearing was set for 10:00 a.m. on August 23 and 24, 1994.

The pre-hearing letter also set forth the productions to be exchanged by the parties before the hearing. Mr. Peterson was to provide Royal with employment and medical information. The productions required from Mr. Peterson are fairly standard in cases where entitlement and quantum are at issue. They are not extraordinary or particularly burdensome.

The pre-hearing letter also explained the Commission's adjournment policy. A copy of the Adjournments Policy was enclosed. On March 10, 1994, a formal hearing notice was sent to the parties and their counsel. No adjournment was requested before the commencement of the August 23, 1994 hearing.

At the opening of the August 23, 1994 hearing, Mr. Peterson requested an adjournment. Mr. Kevin Bennett, a solicitor from Mr. Wagman's office, indicated that none of the productions had been obtained and forwarded because Mr. Wagman had been unable to communicate with his client. The authorizations to obtain the information had been sent to Mr. Peterson, but he had not returned them. Apparently, Mr. Peterson may not have understood the process. Mr. Wagman said that he was unable to contact his client.

Further, Mr. Bennett stated that Mr. Peterson no longer wanted Mr. Wagman to represent him, and therefore he was requesting permission to withdraw. He said that Mr. Peterson was not prepared to proceed with evidence that day.

Upon hearing these submissions, I was prepared to accept that Mr. Peterson and Mr. Wagman had some difficulty communicating and that he was not prepared to proceed. Moreover, Mr. Peterson did not want the lawyer to represent him. These facts presented circumstances which, in my view, warranted an adjournment, even in the absence of any advance notice to Royal.

However, Mr. Peterson's lack of preparedness and failure to provide advance notice of his request for an adjournment, should have some consequence in setting the new date. Indeed, I feel it was incumbent upon him to have given the Commission and Royal notice of the request, or to have made his best efforts to prepare for the hearing. If Mr. Peterson chose not to act in a timely manner or prepare, then a lengthy adjournment should not be granted. He presented no grounds for a lengthy adjournment. Thus, Mr. Peterson was given a short adjournment until September 12, 1994. A formal notice of the rescheduled hearing dates was sent to the parties and counsel on August 24, 1994.

At the August 23, 1994 hearing, Mr. Peterson signed authorizations for Royal to obtain the productions. I specifically asked Mr. Peterson, and he agreed, to immediately seek the services of a new lawyer, who would come prepared to present his case on September 12, 1994.

Two weeks later, on September 7, 1994, the Commission received a letter transmitted by facsimile from the law firm of Misir, Patterson requesting an adjournment of the new hearing date. The letter states:

Please be advised that our firm has recently been retained by Mr. William Peterson to act on his behalf with respect to the above-noted matter.

The Ontario Insurance Commission Arbitration Hearing has been rescheduled for September 12, 1994, however, we will not be in a position to proceed with the hearing at that time as we are unable to have our file properly prepared. We are therefore seeking an adjournment for a later date.

This file is being assigned to Mr. Robert Wong, who will be returning from holidays on September 12, 1994. There is no other lawyer in our firm available at this time.

We thank you in advance for your co-operation herein and look forward to hearing from you.

In deciding whether an adjournment request is reasonable it is helpful to review the Director of Arbitration's policy. Copies of this adjournment policy are enclosed to counsel with every pre-hearing letter. Its purpose is to promote the efficient and expeditious hearing of disputed no-fault claims. The policy states that once the hearing date has been set adjournments will be granted sparingly, bearing the following factors in mind:

1. Adjournments will be granted for personal emergencies, such as a death or serious illness in the family.

2. More than seven days in advance of the hearing, upon the consent of the parties.

3. Less than seven days in advance of the hearing, by written request to the registrar citing extenuating circumstances.

4. Counsel's scheduling conflicts will not be accommodated.

5. Adjournments to dates uncertain will be granted only in extraordinary circumstances.

6. Second and subsequent adjournment requests will be considered on the same basis as a first request.

Mr. Peterson's written adjournment request for the September 12, 1994 hearing was made less than seven days in advance of the hearing. According to the adjournments policy he must show extenuating circumstances. On September 8, 1994, the Registrar's office denied the adjournment.

At the commencement of the September 12, 1994 hearing, Mr. Peterson's new counsel reiterated the adjournment request. Mr. Deepak Paradkar, from the law firm of Misir, Patterson, stated that the law firm had only recently been retained, and counsel was unable to obtain the case file or any of the supporting documents from Mr. Peterson's former counsel. Neither Mr. Paradkar or Mr. Peterson provided any evidence of efforts made to retrieve the file from Mr. Wagman. I also note that at the August 23, 1994 hearing, Mr. Bennett, on behalf of Mr. Wagman, had agreed to co-operate and immediately provide the file to Mr. Peterson's new counsel. Thus, I am not convinced that Misir, Patterson or Mr. Peterson made any attempt to get the file from Mr. Wagman.

Mr. Paradkar stated that Misir, Patterson was not prepared to present any evidence or make submissions on the substance of Mr. Peterson's claim. Mr. Paradkar stated that his firm would require at least a three month adjournment in order to prepare the case and have one of its lawyers available. He said that the firm was appearing solely to obtain an adjournment. At the August 23, 1994 hearing, I had requested Mr. Peterson to retain a lawyer who could act swiftly. Quite obviously,

Misir, Patterson was not going to do that.

In conclusion, Mr. Paradkar stated that Misir, Patterson would withdraw from the case if an adjournment was not granted. He said that Mr. Peterson would not withdraw the matters from arbitration, and he would refuse to present any evidence. Misir, Patterson stated that Mr. Peterson intended to appeal the adjournment denial.

The process of arbitration is different than court. It emphasizes speed and efficiency. Participants should be aware that the arbitration process is not bound by the practices in other forums. Under the Statutory Powers and Procedure Act, the arbitrator has the right to control the hearing process in order to conduct hearings in a speedy and efficient manner.

Mr. Peterson and his representatives had done nothing to prepare the case for hearing over the 11 months since it was filed. If I had been presented with medical reports, other expert opinions, financial documents, witness statements, or letters showing that the matter was moving forward, I would have been better able to accept that this adjournment was reasonable. But faced at the hearing with what appeared to be Mr. Peterson and his counsels' complete inaction since the pre-hearing, he gave me little choice, but to find that the adjournment request was not reasonable.

Entitlement and Quantum:

Mr. Paradkar left the hearing room after the adjournment request was denied. I was not without sympathy for Mr. Peterson, who sat alone. He did not wish to testify or present any evidence. I explained that it was his burden to prove his entitlement and quantum of earnings, and that failing to meet his burden I could not find in his favour. I did not make findings or an order about his weekly benefits at that time. I explained that a written decision would be forthcoming.

I find that Mr. Peterson is not entitled to weekly benefits after December 23, 1992. I have no evidence upon which I can make a finding about the quantum of benefits payable.

Repayment:

Mr. Macauley, counsel for Royal, requested that I hear evidence about an overpayment of weekly benefits to Mr. Peterson. I refused to hear evidence or decide that issue. I feel that an arbitrator has discretion to exclude an overpayment issue where the applicant does not proceed.

Mr. Peterson told me that he is not a highly educated man. After his counsel left the hearing room Mr. Peterson was without legal assistance. He declined to testify, call any evidence or make submissions on the issues. On these facts, I find that it would not be fair to force Mr. Peterson to defend the repayment claim in arbitration. Royal has a court remedy.

Order:

1. Mr. Peterson is not entitled to weekly benefits after December 23, 1992.

2. I make no order as to quantum.

September 22, 1994

Fred Sampliner Arbitrator

Date