Neutral Citation: 2001 ONFSCDRS 168
FSCO A01-000588
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GRAEME ERSKINE
Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
David J. Evans
Heard:
By telephone conference call on October 25, 2001.
Appearances:
Mr. Erskine
Ralph D'Angelo for Personal Insurance Company of Canada
Issues:
The Applicant, Graeme Erskine, was injured in a motor vehicle accident on October 10, 2000. He applied for weekly income replacement and other statutory accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Erskine applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mr. Erskine refused Personal's request for a face-to-face pre-hearing. He also failed to attend at insurer examinations scheduled by Personal.
The preliminary issues are:
Should the pre-hearing discussion be held face to face?
What are the consequences of Mr. Erskine's failure to attend at the insurer examinations?
Result:
The pre-hearing discussion should be held face to face. It has been rescheduled for December 5, 2001 at 10:00 a.m. at the Offices of the Financial Services Commission of Ontario.
The second issue was withdrawn.
EVIDENCE AND ANALYSIS:
Practice Note 7 states: "The pre-hearing discussion can be held in person or by telephone conference call, at the arbitrator's discretion." Rule 33.2 of the Dispute Resolution Practice Code, 4th Edition, provides: "A pre-hearing discussion may be held in person, by telephone conference call, electronically, or by any other means that the pre-hearing arbitrator considers appropriate."
Mr. Erskine advised that he does not want to travel in from his Milton home to North York for the pre-hearing because he finds it inconvenient and because he believes the matter is no more likely to settle face to face than if the pre-hearing is conducted by teleconference. However, he has access to a vehicle in order to drive in to Toronto and is not currently working.
Personal insists on a face-to-face pre-hearing on the basis that "any settlement discussions undertaken in this matter at the Pre-Hearing Discussion may be more fruitful if they take place in person" and that the adjuster would be "better able to assess the Applicant's credibility" if she can meet him in person.2
Settlements are more likely when the pre-hearings are held in person. The very first purpose of a pre-hearing set out in the Notice of Pre-Hearing Discussion is "to attempt to settle the dispute." As Arbitrator Killoran put it in Kyei-Nifah and Addai and Cumis General Insurance Company3: "Potentially, the pre-hearing discussion will be much more fruitful if all the parties attend in person." A face-to-face discussion allows the parties to assess each other and their respective positions in a way not possible in a teleconference.
Furthermore, teleconferences are arranged when face-to-face meetings are impractical, not merely for the convenience of the parties. In my experience, teleconferences are arranged when applicants live an unreasonable distance from the Commission or are too disabled to attend in person. Mr. Erskine in his own words is no longer disabled, and I find that the distance from Milton to the Commission is reasonable for the purposes of an in-person pre-hearing discussion.
In light of the considerations set out above, I consider it appropriate for the pre-hearing discussion to be held face to face.
At the end of the preliminary issue hearing I made an oral order for the pre-hearing to be conducted face to face. We arranged a mutually agreed upon date of December 5, 2001 at 10:00 a.m at the Offices of the Financial Services Commission of Ontario for the pre-hearing discussion.
Regarding issue 2, the insurer examinations, Mr. Erskine advised that he is only claiming benefits up to April 1, 2001, for all his claims. In light of this information, Personal withdrew issue 2.
EXPENSES:
I leave the matter of expenses of this motion to the discretion of the hearing arbitrator.
November 20, 2001
David J. Evans
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 168
FSCO A01-000588
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GRAEME ERSKINE
Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The pre-hearing discussion should be held face to face on December 5, 2001 at 10:00 a.m. at the Offices of the Financial Commission of Ontario in North York.
November 20, 2001
David J. Evans
Arbitrator
Date
Footnotes
- 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 and 303/98.
- Affidavit of Leanne Tucker, Accident Benefits Advisor, sworn October 4, 2001.
- (FSCO A00-001246 and A00-001247, June 18, 2001)