Neutral Citation: 2005 ONFSCDRS 4

FSCO A03-001697

BETWEEN:

SHARIF KULMIE

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A MOTION #2

Before:

Denise Ashby

Heard:

December 23, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Mohammed Muslim for Mr. Kulmie

Gustavo Garrido for TTC Insurance Company Limited

The Applicant, Sharif Kulmie, claims he was injured in a motor vehicle accident on January 9, 2003. He applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC denied Mr. Kulmie's claims for benefits. The parties were unable to resolve their disputes through mediation, and Mr.Kulmie applied for arbitration at the Financial Services Commission of Ontario (Commission) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Kulmie, with his counsel, Mohammed Muslim, appeared on Thursday, December 23, 2004 at the Commission. This was the time and place set for the preliminary issue hearing in the Notice of Rescheduled Hearing of a Preliminary Issue, dated November 26, 2004. The TTC brought a motion to have the preliminary issue hearing adjourned to another date as its witnesses were not available. Mr. Kulmie contested the motion maintaining that he was prepared to proceed.

I ordered the matter adjourned to Thursday, February 17, 2005 at 10 a.m. at the Commission. The adjournment is peremptory to both parties. I indicated that my reasons for the Order would follow.

The issue for the motion hearing is:

Should the preliminary issue hearing be adjourned to Thursday, February 17, 2005 at 10:00 a.m. at the Commission?

The preliminary issue hearing is adjourned to Thursday, February 17, 2005 at 10:00 a.m. at the Commission, peremptory to both parties.

1. History of Proceedings:

Mr. Kulmie was involved in a motor vehicle accident on January 9, 2003. He claimed that he was injured in the accident and applied for statutory accident benefits. Benefits were denied by the TTC. In the pre-hearing letter dated March 17, 2004, the Arbitrator noted that the TTC had raised a preliminary issue as follows:

Was Mr. Kulmie injured as the direct result of the use or operation of a TTC vehicle?

The preliminary issue hearing was scheduled for Monday, June 28, 2004. The hearing of the substantive issues was scheduled to commence on Monday, November 22, 2004. Notices of hearing dated March 17, 2004 were issued setting the above dates.

The preliminary issue hearing was convened on June 28, 2004. Mr. Kulmie was in attendance. The Arbitrator, in her letter dated June 28, 2004, confirmed her order permitting Mr. K. Wolf, counsel for the Applicant, to withdraw. Further, she granted an adjournment to allow Mr. Kulmie time to retain new counsel. In her letter, the Arbitrator requested:

...that the Applicant ask his new counsel to contact TTC's counsel as soon as possible so counsel might expeditiously approach the case administrator on the file to schedule a new hearing date for the hearing into a preliminary issue.²

At a motion hearing before me on November 22, 2004, counsel for the TTC advised that he has had no contact with either Mr. Kulmie or a representative since the appearance on June 28, 2004. Further, there was no record that either Mr. Kulmie or his counsel had contacted the Commission's case administrator between the appearance in June and the motion in November, 2004.

On November 15, 2004, the Commission sent a letter to Mr. Kulmie and counsel for the TTC advising of a resumption of pre-hearing scheduled for Tuesday, November 16, 2004 at 10:30 a.m. by telephone. I was advised that the letter was sent by courier to Mr. Kulmie and by fax to the TTC. The resumption was convened. However, Mr. Kulmie could not be reached by telephone, as a message indicated the number was no longer in service. Therefore, Mr. Kulmie did not participate. Subsequently, the letter couriered to Mr. Kulmie was returned to the Commission.

In a letter dated November 16, 2004, counsel for the TTC requested an adjournment of the hearing scheduled to commence on Monday, November 22, 2004. This letter was couriered to Mr. Kulmie. The TTC based their request for the adjournment on the fact that the preliminary issue hearing had been adjourned on June 28, 2004. The preliminary issue hearing was not rescheduled. Therefore, it was submitted that the hearing of the substantive issues was also adjourned.³ The request for adjournment was denied.

On Monday, November 22, 2004, Mr. Garrido appeared on behalf of the TTC. Neither Mr. Kulmie nor someone acting on his behalf appeared on that date. Mr. Garrido brought a motion to dismiss the matter based on Mr. Kulmie's failure to appear or contact the Commission since his appearance in June. In a decision dated November 25, 2004, I declined to dismiss the matter. Further, I ordered that the preliminary issue hearing be rescheduled to Thursday, December 23, 2004. This date had been set in consultation with Mr. Garrido. My decision was couriered to both Mr. Kulmie and the TTC. The material couriered to Mr. Kulmie was returned to the Commission.

A Notice of Rescheduled Hearing of Preliminary Issue dated November 26, 2004 was also sent to the parties by regular mail. Mr. Kulmie acknowledged receipt of this Notice, when he appeared on December 23, 2004. I infer that the receipt of this notice led him to retain counsel on December 6, 2004. Neither Mr. Kulmie nor Mr. Muslim advised the Commission or the TTC that counsel had been retained.

2. Analysis:

Rule 72 of the Dispute Resolution Practice Code⁴ sets out the procedure for seeking adjournments for scheduled proceedings. As well, the Commission has issued Practice Note 9, which gives guidance regarding the grounds upon which adjournments may be granted or, in the alternative, refused.

The circumstances of this adjournment request are unusual in that the TTC was seeking an adjournment for a date which had been set in consultation with the Insurer's counsel alone. The Applicant contested the granting of an adjournment.

Practice Note 9 provides that adjournments may be granted:

for valid reasons relating to the hearing itself, such as an imminent settlement, or medical or other critical evidence that is UNAVOIDABLY delayed.

Rule 3.2 of the Dispute Resolution Practice Code states:

3.2 Practice Notes are designed to guide users in the dispute resolution process at the Commission. However, they are not binding and do not affect the duty of the adjudicator to make decisions based on the circumstances and merits of each case.

In her June 28, 2004 adjournment letter, as set out above, the Arbitrator requested that Mr. Kulmie have his new counsel contact the TTC in order that arrangements could be made to reschedule the preliminary issue hearing. I find that the Arbitrator was essentially telling Mr. Kulmie to retain counsel expeditiously and have his new counsel contact the TTC and the Commission as soon as possible. Implicit in this was her expectation that Mr. Kulmie would take steps to ensure that the preliminary issue hearing proceeded prior to the scheduled hearing date in November. In the five months between his June 2004 appearance and the hearing scheduled for November 22, 2004, Mr. Kulmie chose not to retain counsel or advise the TTC of his intention to pursue the matter on his own behalf. He made no inquiry about the November hearing date and he failed to provide the Commission with a telephone number at which he could be contacted.

In light of Mr. Kulmie's conduct, I find it was reasonable that counsel for the Insurer assumed that neither Mr. Kulmie nor a representative would attend. Having made this assumption it was then reasonable for him to attend without his witnesses. Therefore, I find that there is a valid reason relating to the hearing itself which renders it equitable and just to grant the adjournment to February 17, 2005. Further, the history of this matter necessitates an order that the date be peremptory to both parties.

EXPENSES:

The issue of expenses will be dealt with at the preliminary issue hearing.

January 18, 2005

Denise Ashby Arbitrator

Date