Neutral Citation: 2005 ONFSCDRS 7

FSCO A04–000502

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FOTA ARGILOFF

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION ON AN ADJOURNMENT

Before:

John Wilson

Heard:

By telephone conference call on January 5, 2005

Appearances:

Annette Macaro for Ms. Argiloff

Philippa Samworth for Co-operators General Insurance Company

Issues:

The Applicant, Fota Argiloff, was injured in a motor vehicle accident on March 24, 2003. She applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Argiloff applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Ms. Argiloff wrote to the Commission requesting that the arbitration hearing in this matter be adjourned to permit an MRI to be performed in August 2005. She also noted during the hearing of the adjournment request that a request for a psycho-vocational assessment was currently before a DAC, and a report could not be prepared before the current hearing dates.

Co-operators did not consent to any adjournment, and its counsel stated a readiness to proceed on the scheduled arbitration dates.

Prior to the scheduled hearing of the adjournment request, Ms. Argiloff filed no documentation in support of her request, nor did she file evidence or call witnesses in her support at the hearing of the matter. In addition, the letter requesting the adjournment provided no alternative hearing dates, nor any explanation of the request for an adjournment other than the bald assertion that an additional MRI would take place that "will be relevant to the outcome of the arbitration." No indication was made of the date when the MRI appointment was made.

Result:

An adjournment was refused to accommodate the MRI in August but granted to April 11, 12, 13 and 14, 2005 to permit a psycho-vocational assessment.
Ms. Argiloff shall pay the Insurer's expenses thrown away as a result of this adjournment which are fixed at $1,500.

EVIDENCE AND ANALYSIS:

As noted earlier, Ms. Argiloff’s original request for an adjournment was based on an alleged appointment for an MRI claimed to be scheduled for August 2005.² Co-operators did not agree to the proposed adjournment. Its counsel, Ms. Samworth, maintained that the relevance of the proposed MRI was in question since there was no evidence linking it to the scheduled arbitration hearing. She also argued that the adjournment request did not conform to the requirements of the Dispute Resolution Practice Code and Practice Note 9, which sets out Commission policy on adjournments.

All adjournment requests must be examined in light of the purposes of the arbitration system. The Introduction to the Dispute Resolution Practice Code (3rd edition, May 31, 2001) (the Practice Code), which governs arbitrations at the Commission, notes that our procedural rules aim to promote "timely, cost-effective and fair dispute resolution services." Since the principal alternative to arbitration of accident benefits disputes at the Commission is a legal proceeding instituted in the Ontario Superior Court of Justice, the measure of the timeliness and effectiveness of arbitration must be in relation to those courts. In light of recent reforms to court procedures, including case management of most matters, every effort must be made to maintain the strict time requirements of the arbitration system.

The approach long taken by the Commission on adjournments is similar in many respects to the new Practice Directions issued by both the Superior Court of Justice and the Ontario Court of Justice on June 8, 1999. These provide:

1(1) Where a date for trial or for the hearing of a matter has been set by the Superior Court of Justice or the Ontario Court of Justice, the trial or hearing is expected to take place on that date.

1(2) By agreeing to a trial or hearing date, a lawyer is presumed to have made a commitment to appear on that date and to be bound not to make any other commitments that would make the lawyer's appearance on that date impossible.

2(1) When setting a date for trials, hearings or appeals, in the Superior Court of Justice or the Ontario Court of Justice, every lawyer has a duty to disclose previous commitments to another court that may conflict with a proposed date for a trial, hearing or appeal.

While obviously the policy of the courts does not directly apply in the context of arbitrations, the direction is illustrative of the current general expectations of conduct in the context of fixing hearing dates. It also sets the bar which the arbitration process is meant to exceed.

Barring the occurrence of circumstances such as those described above, they are expected to be able to proceed within the agreed time-frame. This is consistent with a system that is designed to be "quicker, less expensive and less formal"³ than the courts.

The Practice Code⁴ provides that:

An Application for Arbitration in FORM C will be registered and assigned to an arbitration case administrator within 5 business days of receipt of an Application completed in accordance with Rule 25.1.
Dates for holding an arbitration pre-hearing discussion (Rule 33) will be available to the parties within 6 to 8 weeks from the registration of a completed Application for Arbitration.
Dates for holding an oral arbitration hearing will be available to the parties within 4 to 6 months from the conclusion of the pre-hearing discussion.
An oral arbitration hearing is generally concluded within 3 days.
An arbitration order from an oral hearing will be issued within 60 to 85 days from the conclusion of the oral hearing.

Thus, according to the Practice Code, an insured may reasonably expect a ruling on benefit entitlements in less than a year from the commencement of the arbitration process.⁵

The practice at the Commission with regard to adjournments has long reflected such a need to bring matters promptly to hearing. Even an actual or contemplated change of counsel does not give rise to an automatic right to an adjournment. As Arbitrator Wacyk noted in one case:

He was given more than six months to retain counsel, and had not objected to the dates for which the preliminary issues hearing had been rescheduled. Consequently, I did not find that Mr. Sakhuja's failure to retain counsel within that somewhat generous time frame to constitute extreme and unforeseeable circumstances so as to support the granting of yet another adjournment. Rather, as I noted at the time, Mr. Sakhuja had ample opportunity to retain counsel, and was given clear warnings that he would be required to proceed with the preliminary hearing, even if unrepresented — which he undertook to do.⁶

Notwithstanding his professed intention to retain new counsel, Mr. Sakhuja was denied his adjournment.

As noted earlier, the courts are now taking a not dissimilar approach. In a recent case, Khimji v. Dhanani Estate,⁷ notwithstanding an agreement by a lawyer to take on a trial, if adjourned, the court not only refused the adjournment but dismissed the plaintiffs case altogether. On appeal, Doherty J.A., speaking for the Court of Appeal, outlined the importance of fixed hearing dates, even in the context of a change in counsel:

Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. Where a litigant successfully obtains the adjournment of a trial having failed to exercise due diligence in retaining counsel, that litigant must expect that absent unforseen circumstances, the trial will proceed on the new date.

In this matter, Ms. Argiloff has requested the adjournment. From the submissions made by counsel, Ms. Macaro, it is apparent that she was not ready to proceed on January 17, 2005, the date scheduled for this arbitration. Barring extraordinary circumstances she should have been prepared to proceed on the agreed date.

Ms. Argiloff’s adjournment request did not conform to either Rule 72 or Practice Note 9. As noted, no alternative dates were provided in accordance with Rule 72.1(c). There was no evidence to support Ms. Argiloff’s contention that the proposed MRI was relevant, let alone constituted critical evidence that is "unavoidably delayed", the criterion referred to in Practice Note 9. In addition, with the MRI proposed to take place in August 2005, it is clear that there will be a year or more before an arbitration hearing can be completed.

It is also apparent that this adjournment request may not have been brought promptly following receipt of information concerning the MRI or a proposed psycho-vocational assessment.

In the course of the adjournment hearing, Ms. Macaro mentioned a neuro-psychological report, whose funding Co-operators has declined, and which, consequently, has not taken place. On the face of the record, it is easier to see some possible relevance of a neuro-psychological assessment to Ms. Argiloff’s claim. Unlike the MRI, there appears to have been no previous neuro-psychological assessment. At the time that the adjournment request was heard, the "fast-track" DAC had not rendered any decision about the reasonableness of the claim for funding of that assessment.

While Ms. Argiloff should have been prepared to proceed with her case on January 17, she was not. Nor, according to Ms. Samworth, had she completed her production obligations, an allegation that was not countered by Ms. Macaro.

For some reason, either oversight or otherwise, Ms. Argiloff did not request the adjournment in a timely manner. Her request was not in compliance with the rules or the practice note, and did not refer to an important element, the proposed neuro-psychological assessment. Had the request been more timely, and more complete, and had she been in compliance with her production obligations she may well have had the adjournment on consent, or at least at a time when the final hearing preparation had not commenced.

I accept that Ms. Argiloff will likely suffer some prejudice if this hearing is not adjourned, if only from the absence of a potentially relevant report and her counsel's apparent unreadiness to proceed. I do not accept that there is any evidence of prejudice, or any inference of prejudice that may be drawn from the absence of a second MRI report.

I also accept that the Insurer will likely be prejudiced through the expenditure of time and effort preparing for a hearing that will not take place for some months.

I am prepared to permit an adjournment to the earliest possible time that would allow a psycho-vocational report to be obtained and filed, and still not offend the rule that arbitrations must be timely. The adjournment, however, will be subject to conditions that would address any prejudice to the Insurer.

Ms. Argiloff and her counsel knew, well before January, that they needed a neuro-psychological assessment. Her counsel, essentially, sat on this information until the date of the adjournment request.

While Co-operators was advised of the MRI request by December 17, 2004, there is no evidence that Ms. Macaro advised that an adjournment might also arise from the refusal to fund the neuro-psychological report. Consequently, Ms. Samworth, quite properly, began preparations for a four-day hearing. An adjournment, of course, would make much of that preparation useless. Indeed, a hearing at a later date would entail its repetition. Ms. Samworth stated that, at Commission rates, she would have expended in excess of $1,500 in costs thrown away, if this matter were to be adjourned.

I, therefore, order that this matter be adjourned to April 11, 12, 13 and 14, 2005, the first available dates when both counsel and the neuro-psychological report may reasonably be available. I specifically refuse to consider the date of the new MRI in August 2005 as the starting point for a new hearing date, in the complete absence of evidence of the relevance of another MRI to the arbitration.

I find, as well, that the conduct of Ms. Argiloff and her counsel, in not preparing for the scheduled hearing, bringing an unsupported and incomplete adjournment request, not bringing forward the adjournment request in a timely manner, and failing to complete their production obligations together constitutes conduct that "tended to prolong, obstruct or hinder the proceeding" as defined by Rule 75.2(d) of the Practice Code.

I, therefore. order that the adjournment be subject to an award of expenses. Ms. Argiloff shall pay to Co-operators the sum of $1,500 as its fixed expenses thrown away by this adjournment.

January 25, 2005

John Wilson Arbitrator

Date