Neutral Citation: 2001 ONFSCDRS 89
FSCO A00-001246 and FSCO A00-001247
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SAMUEL KYEI-NIFAH AND GRACE ADDAI
Applicants
and
CUMIS GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Judith Killoran
Heard:
By telephone conference call on May 24, 2001.
Appearances:
Roland Spiegel for Mr. Kyei-Nifah and Ms. Addai
Cameron C.R. Godden for CUMIS General Insurance Company
Issues:
The Applicants, Samuel Kyei-Nifah, and Grace Addai, were injured in a motor vehicle accident on February 20, 2000. They applied for and received statutory accident benefits from CUMIS General Insurance Company ("CUMIS"), payable under the Schedule.1 CUMIS terminated weekly income replacement benefits on April 14, 2000. The parties were unable to resolve their disputes through mediation, and Mr. Kyei-Nifah and Ms. Grace Addai applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. A pre-hearing discussion for Mr. Kyei-Nifah has been scheduled for Tuesday, July 24, 2001 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario. A pre-hearing discussion for Ms. Addai has been scheduled for Thursday, July 26, 2001 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario.
The preliminary issues to be determined prior to the pre-hearing discussions are:
Is Mr. Kyei-Nifah required to appear in person at the pre-hearing discussion on Tuesday, July 24, 2001?
Is Ms. Addai required to appear in person at the pre-hearing discussion on Thursday, July 26, 2001?
Result:
Mr. Kyei-Nifah is required to appear in person at the pre-hearing discussion scheduled for Tuesday, July 24, 2001.
Ms. Addai is required to appear in person at the pre-hearing discussion scheduled for Thursday, July 26, 2001.
Submissions:
On Thursday, May 24, 2001, I heard submissions, by teleconference, from the Applicants' representative, Mr. Roland Spiegel, and CUMIS' counsel, Mr. Cameron Godden, about whether the Applicants should be required to appear in person at their respective pre-hearing discussions.
The Applicants did not claim that they were incapable of appearing at the pre-hearing discussion. The Applicants' representative claimed that the issues in dispute between the parties were legal issues and the participation of his clients would not be necessary.
CUMIS submitted that one preliminary issue to be addressed at the pre-hearing discussion is CUMIS' application to disallow the continued representation of Mr. Kyei-Nifah and Ms. Addai by Mr. Spiegel. In these circumstances, CUMIS considers that it is essential that the Applicants be present in person at the pre-hearing discussions.
The Notice of Pre-hearing Discussion issued by the Financial Services Commission of Ontario, in part, states:
Practice Note #6 lists the purposes of the arbitration pre-hearing. The first purpose is settlement discussions. Arbitrators have noted the absence of clients frequently impedes the settlement process.
The arbitration pre-hearing is designed for the direct involvement of both parties. If clients cannot attend the pre-hearing in person, they are expected to be available and to participate by telephone conference call.
CUMIS submitted that the above Notice specifies that it is only if the clients cannot attend the pre-hearing discussion in person that they are expected to make themselves available and participate by telephone conference call. The Applicants submitted that the insured person is not required to be present in person at a pre-hearing discussion.
Practice Note #6 specifies: "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 states: "A pre-hearing discussion may be held in person, electronically, or by any other means that the pre-hearing arbitrator considers appropriate." Both references recognize the arbitrator's authority to decide what form a pre-hearing discussion may take. This is consistent with sections 279 to 283 of the Insurance Act which set out the procedure to be followed for the dispute resolution process as it applies to statutory accident benefits.
ANALYSIS
I disagree with Mr. Spiegel's submissions that his clients need not attend the pre-hearing discussions, provided that they are available by telephone. As noted, the absence of a party may hinder settlement discussions. In this case, there are preliminary issues which require discussion at the pre-hearing. It is within my discretion to determine the form that the pre-hearing discussion will take.
I find that this is an appropriate case to rule that the parties are required to attend in person. Potentially, the pre-hearing discussion will be much more fruitful if all the parties attend in person.
I find support for my decision in the decisions arising from the case management process provided for in the Courts of Justice Act. Rule 24.1 of the Courts of Justice Act establishes a pilot project for mandatory mediation in case managed civil actions, in order to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes. In the context of this program, which is analogous to the dispute resolution process at the Commission, case management masters have to consider whether parties must participate in person at the mediations and determine the consequences if they do not appear.
In Magalhaes v. Lusitania Portugese Recreation Club2, the defendant's counsel attended the mediation without the client. A representative of the defendant's insurer, with authority to settle the claim, was available by telephone. The Court held that the fact that counsel attends with access to someone in authority does not constitute attendance by a party. Master Beaudoin ruled that counsel and the parties must attend the mediation session in person. Master Beaudoin required the defendant to pay the full cost of the cancelled mediation, as well as the plaintiff's "thrown away" costs and the costs of the motion.
In Merrill Lynch Canada Inc. v. Vacation Properties Time Sharing Inc. et al.3, the defendants failed to attend at mediation and were ordered to pay the mediator's cancellation fee as required by the fee regulation plus the counsel fee to the plaintiff for preparation and attendance at the mediation.
CONCLUSION :
If Mr. Kyei-Nifah does not attend the pre-hearing discussion on July 24, 2001 in person, the pre-hearing discussion will be adjourned with expenses fixed at $200 to be paid by Mr. Kyei-Nifah to CUMIS. The accrual of any interest on benefits which may be found by the hearing arbitrator to be owing shall be stayed from July 24, 2001 until the date that the pre-hearing discussion proceeds with Mr. Kyei-Nifah in attendance.
If Ms. Addai does not attend the pre-hearing discussion on July 26, 2001 in person, the pre-hearing discussion will be adjourned with expenses fixed at $200 to be paid by Ms. Addai to CUMIS. The accrual of any interest on benefits which may be found by the hearing arbitrator to be owing shall be stayed from July 26, 2001 until the date that the pre-hearing discussion proceeds with Ms. Addai in attendance.
June, 18, 2001
Judith Killoran
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 89
FSCO A00-001246 and FSCO A00-001247
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SAMUEL KYEI-NIFAH AND GRACE ADDAI
Applicants
and
CUMIS GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Kyei-Nifah is required to appear in person at the pre-hearing discussion scheduled for Tuesday, July 24, 2001.
Ms. Grace Addai is required to appear in person at the pre-hearing discussion scheduled for Thursday, July 26, 2001.
If Mr. Kyei-Nifah does not attend the pre-hearing discussion on July 24, 2001 in person, the pre-hearing discussion will be adjourned with expenses fixed at $200 to be paid by Mr. Kyei-Nifah to CUMIS. The accrual of any interest on benefits which may be found by hearing arbitrator to be owing shall be stayed from July 24, 2001 until the date that the pre-hearing discussion proceeds with Mr. Kyei-Nifah in attendance.
If Ms. Addai does not attend the pre-hearing discussion on July 26, 2001 in person, the pre-hearing discussion will be adjourned with expenses fixed at $200 to be paid by Ms. Addai to CUMIS. The accrual of any interest on benefits which may be found by the hearing arbitrator to be owing shall be stayed from July 26, 2001 until the date that the pre-hearing discussion proceeds with Ms. Addai in attendance.
June, 18, 2001
Judith Killoran
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.
- (Order of Master Beaudoin, August 1999).
- (Order of Master MacLeod, May 28, 1999).