Pietro Posca v. Wawanesa Mutual Insurance Company, 2005 ONFSCDRS 15

Financial Services Commission of Ontario

Neutral Citation: 2005 ONFSCDRS 15

FSCO A04-002436

Between:

Pietro Posca Applicant

and

Wawanesa Mutual Insurance Company Insurer

Pre-Hearing Decision

Before: Lawrence Blackman

Heard: February 3, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David Carranza for Mr. Posca Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Pietro Posca, was injured in a motor vehicle accident on April 8, 2004. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa refused payment of certain benefits. The parties were unable to resolve their disputes through mediation and Mr. Posca applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on February 3, 2005, the Insurer raised the following production issue:

1. Shall Mr. Posca serve all reports at least ninety days prior to the start of the arbitration hearing?

Result:

1. The parties shall comply with Rule 39 of the Dispute Resolution Practice Code (Fourth Edition - Updated October 2003).

Evidence and Analysis:

Wawanesa sought an order that Mr. Posca serve all reports at least ninety days prior to the start of the arbitration hearing.

Rule 39 of the Dispute Resolution Practice Code (Fourth Edition - Updated October 2003) requires parties to serve all documents, including expert reports, at least thirty days before the first day of the hearing. The Insurer submitted that the present Rule allows applicants a tactical advantage in holding on to their reports until a month before the hearing, and allowing the Insurer insufficient time to respond. Counsel stated that he was not challenging the integrity of this Applicant's representative nor did he impute to him any misconduct. Rather, counsel noted what he considered to be unfortunate experiences in other files and indicated that he would henceforth make this request in every proceeding.

Rule 53.03 of the Rules of Civil Procedure requires that a party who intends to call an expert witness serve on every other party to the action not less than ninety days before the start of trial, a report prepared by the expert. The Rule further requires that a party who intends to call an expert witness in response, shall, not less than sixty days before the start of trial, serve on every other party to the action a report prepared by its own expert. Any supplementary report must be served at least thirty days before the start of the trial. The time provided for service of a report may be extended or abridged at a pre-trial conference, a conference under Rule 77 or by the court, on motion.

Section 52 of the Evidence Act, R.S.O. 1990, c. E.23, requires parties to provide at least ten days notice to all other parties as a condition to the report being allowed into evidence.

The Applicant was prepared to use his best efforts to serve any further reports at least ninety days prior to the start of the hearing, but did not wish to be restricted by a formal order. The Insurer was initially reluctant to be bound by anything greater than a thirty day notice period. It argued that it was better to allow discretion in such cases, noting concerns regarding holidays and other occurrences which might delay a response. Ultimately, however, the Insurer was prepared to commit to fifty days notice.

Rule 1 of the Practice Code enumerates the paramount principles guiding our procedural rules, namely, justice, expeditiousness and cost efficiency. Exclusively following, however, only one of these principles may lead to a result inconsistent with another. Justice is not always inexpensive. Expeditiousness can lead to injustice. While consistency is extremely important, Rule 81 of the Practice Code, the waiver of procedural requirements provision, allows adjudicators to fashion, where and if appropriate, a result in the particular circumstances of a case, that most properly weighs the sometimes conflicting pre-eminent principles.

I am not prepared to make the order requested for the following reasons:

1. one should resist making rules that, more likely than not, will be routinely ignored, thus putting into disrepute the administration of justice. The Commission has had difficulty enforcing the change from ten days notice (under the Third Edition of the Dispute Resolution Practice Code, April 15, 1997) to the present thirty days notice. The Courts may have longer notice periods when a party wishes to call (rather than merely file) a primary expert report, but this Commission, which was created to be, amongst other things, faster than the court system, has much shorter time lines (especially as there are no affidavits of documents or examinations for discovery) than the court system (and specifically in Toronto); indeed, fixed arbitration hearing dates are presently available for next week and for the weeks thereafter (other than one week in April 2005);

2. increasing, across the board, the notice period by two months will, in many cases, merely artificially delay by two months, or more, the hearing dates booked by the parties, defeating the principle of expeditiousness enshrined in Rule 1;

3. increasing the notice period across the board will also have the almost inevitable effect of increasing motions for relief, either during the pre-hearing process or at the arbitration hearing, defeating the principles of cost and time effectiveness. Overzealous case management sometimes has the opposite effect to what was intended, namely, greater costs and a bogged down process; and,

4. we should encourage best practises and mutual undertakings; where there is not a problem, and no problem was suggested in this case, we should not "fix" what is not broken. I do note that conduct by parties which tends to obstruct or hinder the proceeding is one of the criteria specifically enumerated in considering an award of expenses.

Rule 39 of the Practice Code sets out a minimum notice period. I note that Rule 53.03 of the Rules of Civil Procedure does not set one notice period for plaintiffs and another for defendants. Rather, the Rule pertains to parties intending to call an expert and parties intending to respond.

There is merit in the Insurer's proposal for early disclosure, a proposal that is equally applicable to both sides. The Rules should not give an undue advantage to either party.

Given the parties' undertakings noted above, I encourage both sides to:

(a) serve their documents in a timely manner upon receipt;

(b) agree that notwithstanding (a), all documents, reports (including experts' reports) and assessments to be introduced at the arbitration hearing by either party be served on the other party at least fifty days before the first day of the hearing; and,

(c) notwithstanding (b), serve any responding report at least thirty days prior to the start of the hearing.

If the parties wish to formalize this proposal into a consent order, I would be pleased to do so.

February 14, 2005

Lawrence Blackman Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 15

FSCO A04-002436

Financial Services Commission of Ontario

Between:

Pietro Posca Applicant

and

Wawanesa Mutual 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:

1. The parties shall comply with Rule 39 of the Dispute Resolution Practice Code (Fourth Edition - Updated October 2003).

February 14, 2005

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.