Neutral Citation: 2004 ONFSCDRS 69

FSCO A01-000390

BETWEEN:

JOZEF KOZDRA

Applicant

and

CANADIAN GENERAL INSURANCE GROUP

Insurer

MOTION FOR AN ADJOURNMENT

Before:

Beth Allen

Heard:

By telephone conference call on May 3, 2004.

Appearances:

Reynold Kim for Mr. Kozdra

Deborah G. Neilson for Canadian General Insurance Group

Background and Issues:

The Applicant, Jozef Kozdra, was injured in three motor vehicle accidents on the following dates: January 27, 1997, March 3, 1998 and September 8, 2000. He applied for and received statutory accident benefits from Canadian General Insurance Group ("Canadian General"), payable under the Schedule.¹ The issues in dispute are the Applicant's entitlement to: a catastrophic impairment designation, and the cost of medical and rehabilitation, attendant care and housekeeping and home maintenance benefits. The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing commenced before me, Arbitrator Allen, and proceeded for several days in October 2003. Examination-in-chief and a portion of the cross-examination of the Applicant was completed. The matter was rescheduled to resume from May 10 to 13 and September 20 to 23, 2004. The Applicant's counsel brought an interlocutory motion for an adjournment of the May 2004 dates for reasons I will discuss below.

The issue in this motion is:

Is the Applicant entitled to an adjournment of the hearing pursuant to Rule 72 of the Dispute Resolution Practice Code² (the "Code")?

Result:

The Applicant's request for an adjournment is dismissed.

Parties' Submissions:

The parties proceeded by way of written submissions and oral submissions by a teleconference conducted on May 3, 2004.

The Applicant's Counsel's Submissions:

The Applicant's counsel relies on Rule 72 of Code and Practice Note 9 which govern adjournments. He seeks to delay the resumption of the hearing until the dates set in September 2004 in order for the issue of the Applicant's entitlement to income replacement benefits to be added to the arbitration, and for medical assessments, generated by the Insurer in relation to that issue, to be filed as evidence for the hearing.

Rule 72 of the Code sets out procedural rules that are required to be followed by a party requesting an adjournment, namely: an adjournment request must be in writing to the Dispute Resolution Group; must contain a summary of the reasons for the request; must indicate whether there is consent from the opposing party; and must provide alternative dates acceptable to both parties.

Rule 72 directs parties to Practice Note 9 under Section C of the Code. Practice Note 9 states that "adjournments are granted only sparingly..." and will only be considered: in cases of personal emergencies, such as serious illnesses or deaths in the family; for valid reasons relating to the hearing itself, such as an imminent settlement, or medical or other critical evidence that is unavoidably delayed; and if a lawyer has a scheduling conflict with a pre-set trial date.

At the time of the Motion, the Applicant was still in receipt of income replacement benefits. A motivating factor for the Applicant's counsel's request for an adjournment is the fact that Canadian General has requested under section 42 of the Schedule that the Applicant attend multi disciplinary examinations - namely, a functional abilities evaluation, and neurological, orthopaedic and neuropsychological assessments and testing - to assess the Applicant's entitlement to continue receiving income replacement benefits. At the time of the Motion, the Applicant had attended all but the neuropsychological assessment and testing scheduled for May 3 and 5, 2004.

Relying on Practice Note 9, the Applicant's counsel argues that the findings and opinions of the Insurer's multi disciplinary assessors are critical to the ultimate determination of the issues in the hearing. He submitted that allowing the adjournment would permit the parties to obtain the medical evidence and add the income replacement benefit issue to the arbitration.

The Applicant's counsel also submits the medical evidence in question would assist with the determination of such other issues as the catastrophic designation. He further argues that it would be prejudicial to the Applicant for his medical expert to testify without the benefit of that evidence.

The Applicant's counsel cites as a further basis for his request the undesirability of fragmenting the Applicant's case by holding multiple arbitration hearings. He points to the unnecessary inefficiency and cost of proceeding in that manner. He pointed to comments by the Director's Delegate in the Zurich North America Canada and Stelzer³ Commission appeal decision, where she notes some of the adverse effects of multiple proceedings. The Director's Delegate cites as potential problems increased costs, delays, inconsistent findings between adjudicators and in some cases, abuses of process.

The Insurer's Counsel's Submissions:

The Insurer's counsel relies on other comments the Director's Delegate made in Stelzer where she points out the necessity of "a pragmatic balancing of interests" in determining whether to permit multiple proceedings.

In the Stelzer case, the Director's Delegate deals with the matter of issue estoppel and comments on the effect of applying that principle to the dispute resolution process. She stated, for instance, that if an adverse finding on a particular type of benefit claim estops a claimant from commencing a new arbitration about that type of benefit, the result would be to expand the scope of arbitration proceedings and to encourage the parties to delay the dispute resolution process until all claims for that type of benefit were "ripe for adjudication." She concludes that this would have an effect counter to the objectives of the statutory accident benefits scheme, of cost effectiveness, speediness and mediated settlements. The Director's Delegate further concludes that serial arbitrations are contemplated by the scheme and, that while parties are not encouraged to fragment hearings or split issues, serial arbitrations are not an uncommon practice by virtue of the nature of the scheme.

Although the matter of issue estoppel is not before me, I find many of the conclusions in the Stelzer case are helpful here.

The Insurer's counsel argues that the objectives of the dispute resolution process would not be served by delaying the arbitration in this case. She pointed out that the issue the Applicant seeks to add to the arbitration, the income replacement benefit issue, is not in dispute. The Insurer has not terminated these benefits. She further submits that at the time of the Motion, the Insurer had not completed the section 42 examinations scheduled to assess whether the Applicant is entitled to continue to receive income replacement benefits.

The Insurer's counsel challenged the Applicant's counsel's submission that the Insurer's assessments are critical and will assist with the determination of the catastrophic designation issue. She pointed out that the test for determining catastrophic impairment is different from that for income replacement benefits and, as such, the insurer's assessments would be of little assistance in determining whether the Applicant is catastrophically impaired.

Reasons for Decision:

I decline to grant the adjournment for the following reasons.

I accept the Insurer's position. I find the balance between whether to allow multiple proceedings or not should be tipped in favour of not permitting the Applicant to join the income replacement benefit issue to the ongoing arbitration hearing.

In arriving at this decision, I considered that the claim sought to be added by the Applicant is not in dispute. In fact, as the Insurer's counsel pointed out, the examinations the Insurer requested to assess the Applicant's entitlement to income replacement benefits have not yet been completed. It would be a bad practice, and one that would clearly run counter to goals of timeliness, efficiency and dispute resolution, to delay an arbitration in progress to await the unknown outcome of an assessment. I find this would have the adverse effect raised by Stelzer of expanding the scope of arbitration proceedings and encouraging the parties to delay the dispute resolution process until all claims for that type of benefit were "ripe for adjudication."

I agree with the Applicant's counsel's position insofar as I recognize circumstances do exist where fragmenting arbitrations would run counter to the objectives of the accident benefits scheme, particularly in those cases where the result would be increased costs, unnecessary delay and inefficiency. These are the circumstances contemplated by Rule 30 of the Code where the Dispute Resolution Group is given the discretion to combine Applications for Arbitration where the result would be "the most just, quickest, and least expensive" means to proceed.

I also find that the insurer's examinations in question are not "critical evidence that is unavoidably delayed" as contemplated by Practice Note 9. I agree with the Insurer's counsel that the substantial inability to perform the pre-accident employment test is decidedly different from the test for catastrophic impairment, which requires under subsection 2(1)(f) of the Schedule, a consideration of the percentage of impairment of the whole body. For similar reasons, the insurer's examinations will not be helpful in deciding attendant care entitlement.

Nor would the insurer's examinations in question be of any assistance in determining other issues in dispute such as the claims for the cost of medical and rehabilitation, housekeeping and medical examinations, given the time sensitive nature of these claims, as they pertain to an earlier period.

For these added reasons, I will not adjourn the hearing to await the availability of the insurer's examinations.

For all of the above reasons, I deny the Applicants request for an adjournment. The arbitration shall therefore continue from May 10 to 13, and September 20 to 23, 2004.

May 7, 2004

Beth Allen Arbitrator

Date