Neutral Citation: 2002 ONFSCDRS 18
FSCO A00-001259
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARSHA CAMPBELL
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
October 15, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Rod Hare and Mark Rowe, agents, for Ms. Campbell
Jamie Pollack, Barrister and Solicitor, for Kingsway General Insurance Company
Issues:
The Applicant, Marsha Campbell, was injured in a motor vehicle accident on January 21, 2000. She applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.1 Kingsway refused to pay for assessments performed by Profile Evaluations. The parties were unable to resolve their disputes through mediation, and Ms. Campbell applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is Ms. Campbell entitled to payment for the cost of medical assessments performed by Profile Evaluations, claimed pursuant to section 24 of the Schedule as follows:
$1,000 for an in-house assessment dated June 2, 2000;
$1,400 for a functional assessment and report dated June 4, 2000;
$900 for an attendant care form 1 report dated June 4, 2000; and
$900 for what is described in the report of the pre-hearing arbitrator as a "mediation fee adjustment." At the commencement of the hearing, Mr. Hare advised me that Ms. Campbell withdrew this claim.
- Is either party entitled to expenses of the arbitration?
Result:
I postpone issuing a final order in this matter pending further submissions from the parties on any application to reopen this hearing as outlined in these reasons.
The preliminary issue raised at the commencement of the hearing was whether I should order Kingsway to produce further documents to Ms. Campbell. I declined to order further production.
EVIDENCE AND ANALYSIS:
Preliminary issue:
At the commencement of the hearing I asked counsel to raise any preliminary issues. Mr. Hare, representative of Ms. Campbell, said he did not receive a response to production requests. He asked for an "order for production requests" and an "interim order on expenses." Although I explained the difference to Mr. Hare, he continued to use the terms "production requests," "production agreements" and "production orders" interchangeably in his submissions.
I found no merit to Mr. Hare's arguments at the hearing and so indicated at that time. I relate the discussion in some detail because after nearly two hours of discussion, Mr. Hare and his assistant, Mr. Rowe, gathered together their papers and left the hearing. Mr. Hare advised me that he could not say whether he would return. As they walked out, I advised Mr. Hare and Mr. Rowe that the hearing was concluded and that I would send my decision to the participants by mail.
Ms. Campbell filed her application for arbitration on December 8, 2000. Kingsway filed its Response on January 5, 2001. By letter to Mr. Hare of the same date, Mr. Pollack, counsel for Kingsway, identified the documents he requested. Ms. Campbell filed a Reply on March 21, 2001. Mr. Hare attached to the Reply a letter dated March 16, 2001 to Mr. Pollock identifying the documents he requested.
A pre-hearing discussion was held at the offices of the Financial Services Commission on March 20, 2001. The pre-hearing arbitrator reported to the participants on March 21. In that letter the arbitrator wrote:
The parties have partially agreed on production exchange subject to any issues arising out of the documents to be exchanged. The parties shall:
Prepare a joint list of agreed productions and file it with the Financial Services Commission of Ontario within 21 days of this pre-hearing discussion date; and,
Within 60 days of this pre-hearing discussion date either have complied with the undertakings given or, in the case of documents not in a party's possession, control, or power, have provided proof of best efforts to comply with the undertakings.
Should there be any issues arising out of the documents forthcoming that cannot be resolved by the parties this pre-hearing discussion may be resumed by telephone conference before me. The parties should arrange the discussion well in advance of the hearing date, as otherwise the Commission may not be able to accommodate their request.
The arbitrator made orders on the production issues which could not be resolved. Neither party complied with the arbitrator's direction to provide a joint list of agreed productions within 21 days or comply with any production agreement within 60 days. On October 4, 2001, Mr. Hare wrote to Mr. Pollack and indicated that he had not received "any of our production requests." On the same date he wrote to the Commission and asked for a resumption of the pre-hearing to address outstanding productions and requested an adjournment of the hearing. On that same day, Mr. Pollock delivered Kingsway's arbitration brief to Mr. Hare's office. On October 10, Mr. Hare wrote to the Commission that he had received partial production from Mr. Pollock and that the majority of his production requests remained outstanding. On October 11, 2001, a case administrator at the Commission sent to Mr. Hare the Commission's Practice Note 9 which sets out the procedure for requesting an adjournment. Among other things, the caseworker advised Mr. Hare to indicate whether the other parties consented to the adjournment and to propose alternative hearing dates. That same day, Mr. Hare wrote to the caseworker that he was withdrawing his request for an adjournment and that he would deal with outstanding productions at the commencement of the hearing.
Mr. Hare made general allegations that Kingsway had not complied with his "production requests" as set out in his letter of March 16, 2001. Kingsway is not obliged to comply with "production requests." A party need only comply with the terms of an agreement to produce documents or an order to produce documents.
The pre-hearing in this case was held in March 2001 and therefore the former Dispute Resolution Practice Code (Third Edition) applies. Rule 32 of the Dispute Resolution Practice Code (Third Edition) sets out the procedure for exchanging documents and the procedure to follow if the parties cannot agree. In this case, the parties exchanged the list of the documents each requested prior to the pre-hearing and the pre-hearing arbitrator made rulings on those requests which the parties could not agree on. It is not clear to me if Mr. Hare had requests for documents which were not dealt with at the pre-hearing or if he thought that Kingsway was required to produce the documents he requested absent any agreement or order. The rules contemplate that the parties will identify those documents they agree to exchange before the pre-hearing and then ask the pre-hearing arbitrator to rule on those requests for documents on which they cannot agree. Normally, a party should not expect the arbitrator to deal with production requests at the hearing. A party may expect the arbitrator to deal with failure to comply with an agreement or order to produce documents at the hearing, if the failure to produce documents prejudices the party.
After questions by me, I determined that the only information Mr. Hare claimed Kingsway agreed to produce and did not produce was the name and position of a Kingsway employee responsible for Kingsway's decision to deny the claim for the cost of Profile's assessments. I now set out my reasons for my decision that Kingsway complied with that agreement.
Mr. Pollock wrote to Mr. Hare that the only employee responsible for the file up to the denial of Profile's account was Ms. Balli Gill. Mr. Hare submitted that two Explanations of Benefits Payable forms sent by Kingsway setting out Kingsway's reasons for not paying were signed by an adjuster, John Damiani. He argued that Kingsway had not complied with its agreement to provide this employee's name to him. Mr. Pollock argued that Mr. Damiani was not responsible for Kingsway's decision to deny the claim and that, therefore, his identity was not covered by the agreement to produce documents. Mr. Pollock also argued that Mr. Hare should have known of Mr. Damiani's identity. He pointed out that the Explanation of Benefits Payable form signed by Mr. Damiani was mailed to Ms. Campbell's solicitor and to Profile Evaluations.
I accept Mr. Pollack's argument that Mr. Damiani's identity was not the subject of any production agreement. In any event, Mr. Hare should have known about Mr. Damiani since Mr. Damiani's name was on the Explanation of Benefits Payable form which Kingsway mailed to Mr. Hare. Further, if Mr. Hare thought it relevant and wanted Mr. Damiani's testimony, he knew Mr. Damiani's identity and could have summonsed him. I did not see the relevance of any testimony Mr. Damiani might give. However, if after time I determined that he had relevant testimony, I would have adjourned the hearing for his evidence.
Mr. Hare presented no further evidence with respect to his allegation that Kingsway failed to comply with its agreement to produce documents. The pre-hearing arbitrator did not order Kingsway to produce any documents.
Mr. Hare also argued that Kingsway failed to serve it with the documents it was relying on at least ten days before the hearing. Kingsway served the Applicant with a copy of the document brief on October 4, ten days before this hearing. It therefore complied with the ten-day time limit.
Mr. Hare made no argument for interim expenses.
At the hearing, I ruled that I would not order the production of any documents or interim expenses.
Mr. Hare requested an adjournment. He said that he needed instructions from his client and that he could not proceed. Ms. Campbell did not attend the hearing. Mr. Hare did not explain why Ms. Campbell was not at the hearing and why he could not proceed. He could not answer any questions or make any further submissions in support of his request for an adjournment. Mr. Pollack asked that the application be dismissed. He argued that the conduct of Mr. Hare amounted to an abuse of process and that I should order Ms. Campbell to pay Kingsway the amount of its assessment. It was 11:40 a.m. and I suggested to Mr. Hare that we take lunch and that he try to get instructions and respond to Mr. Pollack's request for an order dismissing the application after lunch. Mr. Hare said he did not know if he would come back at 1:00 p.m. I directed Mr. Hare to tell me whether he was coming back at 1:00 p.m. or explain why he would not tell me. He repeated that he could not say whether he was coming back. I concluded the hearing and told Mr. Hare and Mr. Pollack that the participants would get my decision in the mail.
By letter dated November 7, 2001, the Director of Arbitrations advised me that he had received an application under subsection 282(12) of the Insurance Act and directed me not to release any formal orders. Subsection 282(12) allows a party to apply to the Director for the appointment of a new arbitrator if the party believes that the arbitrator is biased. By decision dated December 18, 2001, the Director concluded that there was no basis to prevent me from continuing to act in this case and revoked his previous direction that I not issue any formal decisions.
I now turn to what appeared to me at the hearing to be contempt of my direction to Mr. Hare that he advise me whether he intended to return after the lunch break. The file contains correspondence between Mr. Hare and Senior Arbitrator David Braund which sheds light on the matter. In a letter to Mr. Hare dated October 19, 2001, the Senior Arbitrator replies to a letter from Mr. Hare as follows:
In your letter, you state that your apparently unusual behaviour was because I told you not to mention your complaint to Arbitrator Renahan. That is not what I said, although I accept that there could have been a misunderstanding.
Based on this information, I find that Mr. Hare's refusal to comply with my direction was due to a misunderstanding of what the Senior Arbitrator told him and therefore did not amount to a contempt of my direction.
It is not clear from Mr. Hare's letters to the Director and to the Senior Arbitrator whether Ms. Campbell has applied for an order to reopen the hearing. Further, the letters do not comply with the provisions of the Dispute Resolution Practice Code (Third Edition), particularly, Rule 65.
I postpone issuing a final order in this matter until February 15, 2002. If Ms. Campbell or her representative, Mr. Hare, wishes to apply to me in writing for an order to reopen this hearing, they may do so before February 15, 2002. Such application should include submissions on any terms that I should make if I decide to reopen the hearing. If Ms. Campbell applies for an order to reopen the hearing, Kingsway shall have until February 25, 2002 to serve and file a written response. The application and response should comply with the provisions of the Dispute Resolution Practice Code (Third Edition).
January 25, 2002
William J. Renahan 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.```