Financial Services Commission of Ontario

Neutral Citation: 2001 ONFSCDRS 20

FSCO A98-001309

BETWEEN:

TUAN HUYNH

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ADJOURNMENT DECISION

Before:

Lawrence Blackman

Heard:

February 12, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Brian Sherman for Mr. Huynh

Grant R. Dow for Allstate Insurance Company of Canada

Judgment:

Oral reasons given February 12, 2001, with a written copy provided to the parties by letter dated February 14, 2001

Issue:

The hearing in this matter was scheduled to commence on February 12, 2001, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario.

At the commencement of the hearing, Mr. Dow, on behalf of the Insurer, requested that this arbitration proceeding be dismissed because undertakings given by the Applicant had not been met.

Mr. Sherman, on behalf of the Applicant, requested an adjournment of this matter, essentially on the basis that he was only retained on Friday, February 9, 2001 and that he has not had an opportunity to properly prepare for this arbitration hearing.

An interpreter had been requested for this hearing. The interpreter did not arrive until after the lunch break. I heard submissions in the morning. Before rendering my decision, I asked the Applicant's representative if he wished to have anything repeated for the benefit of the Applicant. Mr. Sherman indicated that was not necessary. I, therefore, read my decision to the parties, with the assistance of the interpreter, Mr. Marvin Ko.

I decline to dismiss this proceeding. I grant the Applicant’s adjournment request on the following terms:

(a) the adjournment is granted peremptory to the Applicant. It is not peremptory to the Insurer;

I am not prepared to dismiss this proceeding. I am not satisfied that I have jurisdiction to dismiss a proceeding, other than on the merits of the case under the present Dispute Resolution Practice Code. In any event, I find that such a remedy is too drastic, considering that I have other remedies at my disposal.

I note that there have been no prior adjournments obtained or requested by the Applicant. The Applicant's representative was only retained last Friday. It would not be just to force the Applicant on when his representative has not had a reasonable opportunity to review his case, let alone properly prepare the case as he feels is reasonable and required. The Insurer is also at a disadvantage, in that necessary documentation, undertaken to be produced by the Applicant, has not been provided or any proof of any efforts made by the Applicant, provided. That puts the hearing arbitrator at a disadvantage in trying to decide this matter on its merits. I note, however, that the Insurer does not seek an adjournment, does not consent to an adjournment and is ready to proceed with this matter.

(b) the Insurer is awarded its costs thrown away, fixed in the amount of $1000, inclusive of GST, payable in any event of the cause, but payable only as a set-off against the claim herein for supplementary medical benefits relating to the account of Back Care and Sports Injuries Rehabilitation Centre, interest on that account, or legal expenses awarded pursuant to that claim. These monies are not otherwise payable by the Applicant himself either as a claim personally against him or as a set-off against any other claims that he might have;

The Insurer has been prejudiced in this case. The Applicant's representative has conceded that he has difficulty arguing against a claim for expenses. I accept that the Insurer's counsel, Mr. Dow, has prepared for this arbitration hearing and will have to duplicate certain of the work that was done in preparation for this proceeding today. I confirm that the Insurer is restricted to the legal aid tariff for its party and party expenses. I further acknowledge that the better part of a day has been spent dealing with a late adjournment request and productions which should have been complied with by the Applicant months ago. The Applicant's prior representative, Mr. Suboch, gave those undertakings at the April 28, 2000 pre-hearing discussion. These undertakings were confirmed by correspondence dated April 28, 2000, by the Insurer's prior counsel, Ms. Chadwick. Arbitrator Sapin, in her April 28, 2000 pre-hearing letter, ordered the parties to have either complied with their undertakings or have provided proof of best efforts to comply with the undertakings within 60 days of the pre-hearing date. There is no evidence, nor is there any submission, that Mr. Suboch followed up with those undertakings within that 60-day period, or indeed at all until December 2000, the latter, as I understand it, with regard to obtaining the OHIP summary. Much of this morning, when this hearing was to commence, dealt with these production matters. This is unacceptable. I find that it is incumbent upon the Commission to say so in this case in a meaningful way, hence the award of costs set out above.

(c) the Applicant has undertaken to waive any claim for interest on the outstanding account of Back Care and Sports Injuries Rehabilitation Centre from today's date of February 12, 2001 to the start of the hearing;

I stated, and the Insurer did not dispute, that I do not appear to have any jurisdiction to waive interest accruing on any possible overdue accounts. However, the Applicant has voluntarily agreed to waive interest accruing as set out above. I state for the record, that this was a factor in allowing this adjournment request.

(d) the Applicant shall serve on the Insurer any expert reports and any documentation upon which he intends to rely not less than forty-five (45) days before the start of the hearing. The Insurer shall serve on the Applicant any expert reports and any documentation upon which it intends to rely not less than thirty (30) days before the start of the hearing.

The Applicant has new representation. Concerns were raised, very politely, as to how this application was previously conducted. There may be some measure of justification for those concerns. It is in the interests of justice to decide cases at this Commission on their merits while at the same time avoiding any real prejudice to either side.

As an aside, I am concerned in this case that technical arguments are being raised regarding a variety of issues that seem, at first blush, to speak more to a tactical advantage than to the true merits or justice of this case or to procedural fairness.

(e) The Applicant shall, within 30 days of February 12, 2001, either have complied with the undertakings confirmed in Ms. Chadwick's letter of April 28, 2000 or, in the case of documents not in the Applicant's possession, control, or power, have provided proof of best efforts to comply with these undertakings, best efforts which shall include, at the very minimum, both initial and follow-up letters to be copied to the Insurer.

I note for the record that the failure of the Applicant to comply with this order may lead to at least, amongst other things:

• the Applicant being restricted as to what evidence he may lead;
• an adverse inference being drawn against the Applicant; and/or,
• a further award of expenses against the Applicant.

I note that the Applicant has stated that regarding certain of the undertakings, he needs no more than a couple of weeks. I have given a more generous time period, as perhaps being more realistic. As certain productions are not in the power, control or possession of the Applicant, the requirement of proof of best efforts to be given is set out above.

(f) the parties shall, subject to paragraph (g) below, confirm to each other the names of the witnesses they intend to call to testify not less than thirty (30) days before the first day of the hearing.

The Insurer has indicated that it will probably proceed by way of filing the reports upon which it intends to rely, without calling the authors thereof. I applaud such an approach. I encourage both sides to try to fine-tune the actual areas of dispute, prepare to the extent possible an agreed statement of facts, and limit oral evidence, again where possible, in part by filing the reports of the experts.

(g) the Applicant shall serve a document setting out the names and qualifications of the expert witnesses upon which he intends to rely, the subject matter of the testimony to be presented, and the substance of the facts and opinion to be presented by the experts, not less than forty-five (45) days before the start of the hearing. The Insurer shall serve a document setting out the name and qualifications of the expert witnesses upon which it intends to rely, the subject matter of the testimony to be presented, and the substance of the facts and opinion to be presented by the expert, not less than thirty (30) days before the start of the hearing.

(h) the Applicant shall, within 30 days of February 12, 2001, confirm to the Insurer whether he is seeking a special award, and if so, provide the Insurer, also within that thirty-day period, with the particulars of such a claim as are then within his knowledge. The Applicant shall advise the Insurer of any further particulars, forthwith.

(i) the Applicant's representative has raised certain issues which, in part, he terms jurisdictional concerns, regarding what evidence the Insurer may call in this proceeding and indeed, whether its Response should be struck out. Some of these issues appear to be novel. However, they may merely be sub-issues encompassed by the substantive question of entitlement to the account of Back Care and Sports Injuries Rehabilitation Centre. The Applicant shall, within 30 days of February 12, 2001, advise the Insurer, in writing, and file that letter with the Commission, setting out all of the issues which he advances falling within this substantive issue.

I decline to award the Insurer its assessment fee of $3000, or any amount up to that maximum. I am not persuaded that the Applicant has commenced an arbitration that is frivolous, vexatious or an abuse of process. This differs from the finding made by Arbitrator Renahan in D'Angelo and Wawanesa (FSCO A99-000797, January 5, 2001), relied upon by the Insurer. In any event, the order given there, that is allowing the representative to withdraw on terms, was very different from what was sought in this case.

February 14, 2001

Lawrence Blackman Arbitrator

Date