Neutral Citation: 2001 ONFSCDRS 97

FSCO A00-000916

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MANUEL A. JAMES

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Fred Sampliner

Heard:

June 21, 2001, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances:

James Schacter for Zurich Insurance Company

No one appeared for Manuel James

Issues:

Zurich Insurance Company (Zurich) argues that the Applicant, Manuel A. James, cannot proceed to an arbitration hearing concerning his claimed entitlement to statutory accident benefits under the Schedule¹ arising out of a December 24, 1999 motor vehicle accident. The parties were unable to resolve their disputes through mediation, and Mr. James applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Both parties and their representatives attended the March 6, 2001 prehearing discussion. Notice for the June 21, 2001 hearing on the preliminary issue was sent to the parties and representatives on March 8, 2001. Zurich seeks an order precluding Mr. James from proceeding to the arbitration hearing because he did not submit his claims within the time limitation prescribed under the Schedule.

The preliminary issue is:

Can Mr. James proceed to an arbitration hearing?

Result:

Mr. James may proceed to an arbitration hearing providing that he pays Zurich $335 on or before September 14, 2001.

REASONS:

Neither Mr. Manuel James nor his representative appeared at the preliminary issue hearing. The Commission sent both hearing notices on March 8, 2001, and I find they were delivered in March because postal authorities did not return them as undeliverable.

The day before the scheduled hearing on the preliminary issue, Mr. James' representative faxed an adjournment request to the Commission. He stated that he had just encountered a "last moment" scheduling conflict requiring his attendance on an injunction application in the Superior Court at the same time as the scheduled hearing. He did not state when he received the notice to appear in Court, the case name or any other substantiating data to confirm his assertion. Zurich refused to consent to Mr. James' adjournment request. When Mr. James' representative reiterated his request in a second fax that day, he notified the Commission that neither he nor his client would appear at the June 21, 2001 hearing. He offered no further reason or supporting information for his late request.

The notice that Mr. James' representative would not attend the hearing and his subsequent failure to appear or obtain anyone to take his place presents this Tribunal with a unilateral fait accompli. I find it usurps the power of this Tribunal to control the process under sections 21 and 23 of the Statutory Powers and Procedure Act.

Mr. James did not comply with the rule that adjournment requests should be filed and served on opposing parties seven days in advance of the hearing.² This Tribunal's adjournment policy³ was sent to Mr. James and his representative in the March 2001 prehearing letter.

Mr. James has not demonstrated grounds for a late adjournment. Late adjournments are granted when there is a personal emergency, critical evidence is unavoidably missing, settlement is imminent or the lawyer is called into or held over in another legal proceeding. Mr. James' representative failed to set out any information that would support his allegation that he had a previously scheduled conflicting matter in the Superior Court or that it had been put over to the same date.

Although I find that Mr. James has not demonstrated a valid reason to adjourn the hearing on the preliminary issue, I am loath to decide this issue based on Zurich's evidence and submissions alone. Moreover, Zurich agrees that the main hearing on the assessment expenses together with the limitation issue will only take one day. I find that the just and least expensive solution⁴ is to defer the hearing of the preliminary issue and combine it with the main hearing, beginning October 16, 2001.

Zurich voiced no strenuous objections, but sought its expenses of the day. I agree there should be expense consequences for Mr. James' failure to provide Zurich and the Commission with adequate notice or justification for late adjournment request. I find it appropriate that Mr. James pay the Insurer's reasonable expenses that have been wasted in preparation for this preliminary issue hearing.

Based on counsel's submissions and the briefs submitted, I find that Zurich's lawyer spent four hours preparing the materials for this hearing and one hour in attendance. I have not added the printing and binding costs for the briefs because they may be used at the main hearing. I find that Zurich is entitled to $335 plus GST for its expenses of the preliminary issue hearing,⁵ payable on or before September 14, 2001. In the event that Mr. James fails to pay Zurich's allowed expenses, he may not proceed to the main hearing.

June 28, 2001

Fred Sampliner Arbitrator

Date