Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 28
FSCO A04-002014
BETWEEN:
ASSUNTA SCOLERI
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A MOTION
Before:
Suesan Alves
Heard:
By telephone conference call on February 15, 2006
Appearances:
Joseph Campisi Jr. for Mrs. Scoleri
James M. Brown for Aviva Canada Inc.
Issue:
Aviva Canada Inc. ("Aviva"), brought a motion for an adjournment of the hearing. Mrs. Scoleri opposed the adjournment, and, if the adjournment were granted, sought terms.
The issue on this motion is:
- Should the hearing be adj ourned as requested by Aviva? If yes, what terms are appropriate?
Result:
The adjournment request is denied. The hearing will commence as scheduled on March 6, 2006.
If Aviva is unable to arrange for Dr. Finkelstein's attendance between March 6, 2006 and March 9, 2006, counsel for the Insurer shall arrange one further hearing day, convenient to counsel for the Applicant, and to the hearing arbitrator, at which Dr. Finkelstein can attend and give his testimony. That further day shall be no later than May 31, 2006.
EVIDENCE AND ANALYSIS:
Aviva requested an adjournment of the hearing because one of its witnesses, Dr. Finkelstein, is away from Ontario on sabbatical. Dr. Finkelstein conducted an insurer's examination in relation to Mrs. Scoleri's claims for income replacement and housekeeping benefits. The hearing is presently scheduled to commence on March 6, 2006. The Insurer proposes that the hearing be adjourned until the doctor returns to Ontario, sometime in the fall of 2006.
The Applicant opposed the adjournment request. Her counsel noted that Dr. Finkelstein has been on sabbatical since September or October of 2005, to Aviva's knowledge, and that there have been cases in which he has arranged to fly back to Ontario in order to testify at a hearing for Aviva; however, there have been other cases when he has not been prepared to make those arrangements.
Counsel for the Applicant advised that the earliest date on which he could reschedule the hearing for four days was January 15, 2007. I canvassed the possibility of someone else in his firm conducting the hearing, but was advised that this would be unacceptable to his client. He is the only lawyer in his firm who speaks Italian, and in this regard, I note that the Applicant has requested an interpreter for the hearing. He submitted that if an adjournment were granted the Applicant would seek costs thrown away and payment of any cancellation fees that may be charged by the Applicant's two expert witnesses.
Counsel for the Insurer submitted in reply that he was attending on the resumption because counsel who would be taking the arbitration hearing was unexpectedly unavailable. Counsel for the Insurer submitted that he was unaware of Dr. Finkelstein's practice of choosing to attend some but not all hearings that have been scheduled during his sabbatical. He was also unable to comment on the submission that Dr. Finkelstein's unavailability was known to Aviva since the fall of 2005.
I canvassed the possibility of interim benefits pending the adjournment and the possibility that both parties would simply file their expert reports and not call their medical experts. I have also asked counsel to contact the Commission to schedule a settlement discussion in this matter.
I have decided to deny the adjournment request. I am mindful of the Commission's adjournment policy, and the likely impact of an adjournment on an Applicant who is claiming income replacement benefits on an ongoing basis and outstanding prescription expenses, and who has already waited for almost a year for a hearing date. I accept that there is no guarantee that the Applicant will succeed at the hearing.
I note the submission of counsel for the Insurer, that interest will compensate the Applicant for the delay; however that may be of slim comfort if the Applicant is unable to obtain a loan or pay for prescribed medications. Delaying the hearing date by a further nine months is not an acceptable option. For these reasons, the hearing will commence as scheduled on March 6, 2006, at 10:00 a.m. at the Financial Services Commission of Ontario.
As I am also mindful of the Insurer's right to have its expert testify at the hearing, if the Insurer is unable to arrange for Dr. Finkelstein's attendance during the already scheduled hearing days, then counsel for the Insurer should arrange for one further day, convenient to counsel for the Applicant and to the hearing arbitrator, at which Dr. Finkelstein can attend and give his testimony. That additional hearing day shall be no later than May 31, 2006. Counsel for the Applicant advised that finding one day in his schedule would be easier than finding a four day block of time.
Order
The adjournment request is denied. The hearing will commence as scheduled on March 6, 2006.
If Aviva is unable to arrange for Dr. Finkelstein's attendance between March 6, 2006 and March 9, 2006, counsel for the Insurer shall arrange one further hearing day, convenient to counsel for the Applicant, and to the hearing arbitrator, at which Dr. Finkelstein can attend and give his testimony. That further day shall be no later than May 31, 2006.
February 15, 2006
Suesan Alves
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 28
FSCO A04-002014
BETWEEN:
ASSUNTA SCOLERI
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The adjournment request is denied. The hearing will commence as scheduled on March 6, 2006.
If Aviva is unable to arrange for Dr. Finkelstein's attendance at the hearing between March 6, 2006 and March 9, 2006, counsel for the Insurer shall arrange one further hearing day, convenient to counsel for the Applicant, and to the hearing arbitrator, at which Dr. Finkelstein can attend and give his testimony. That further day shall be no later than May 31, 2006.
February 15, 2006
Suesan Alves
Arbitrator
Date