Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 81

FSCO A05-001871

BETWEEN:

MURLINE REID

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before:

Jeffrey Rogers

Heard:

April 27, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Charlie Ma, law student, for Ms Reid

Darrell March, solicitor for RBC General Insurance Company

Issues:

The Applicant, Murline Reid, was injured in a motor vehicle accident on December 6, 2004. She applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule¹ The parties disagree on Ms Reid's entitlement to further housekeeping benefits. The parties were unable to resolve their dispute through mediation, and Ms Reid applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The pre-hearing discussion of this case was held on April 27, 2006. RBC did not consent to Ms Reid's request to participate in the pre-hearing by telephone.

The issue is:

Should Ms Reid be permitted to participate in the pre-hearing by telephone.

Result:

Ms Reid should be permitted to participate in the pre-hearing by telephone.

EVIDENCE AND ANALYSIS:

The pre-hearing discussion in this case was scheduled for April 27, 2006 at 2:00 p.m., at the offices of the Commission. Ms Reid lives in Brampton. By letter of April 25, 2006 Ms Reid requested RBC's consent to participation by telephone instead. Counsel for RBC replied that he had received instructions to proceed with the pre-hearing in person and require Ms Reid's attendance in person.

At the pre-hearing, Mr. Ma advised that his client was not able to attend because she had an eye infection that impaired her vision, there was no one available to bring her to the pre-hearing and she thought the infection might be contagious.

Counsel for RBC did not challenge the reason for Ms Reid's non-attendance. However, he asserted that RBC has a right to require her attendance at the pre-hearing. He submitted that it is the policy of the Commission to require parties to attend pre-hearings. Counsel submitted that the policy has been enforced in recent decisions in Karagoz and Aviva Canada Inc.² and Premananda and RBC General Insurance Company³ and in a letter decision in Csuzda and RBC General Insurance Company.⁴ Counsel cited RBC's right to ask Ms Reid questions at the pre-hearing and assess her as a witness, as reason for requiring her to attend.

I ruled that Ms Reid could participate by telephone. I gave brief oral reasons. Since RBC cited a conflicting decision, I promised fuller reasons. After I gave my oral ruling, RBC reiterated its request by suggesting that the pre-hearing should be adjourned until Ms Reid is medically able to attend. I ruled that adjourning would grant RBC the order I had already denied and I denied the request for an adjournment, for that reason.

Rule 33.2 of the Dispute Resolution Practice Code provides as follows:

A pre-hearing discussion may be held in person, by telephone conference call, electronically, or by any other means that the pre-hearing arbitrator considers appropriate.

A case administrator fixes the date for the pre-hearing, with the parties' consent. The default protocol is that, for Greater Toronto Area (GTA) residents like Ms Reid, the pre-hearing is in person at the Offices of the Commission. For applications where the applicant does not reside in the GTA, the pre-hearing is by telephone. Even for GTA residents, the pre-hearing will be scheduled by telephone, if the parties agree.

If at the time of scheduling the parties disagree on the manner in which the pre-hearing should be held, the issue is brought to the attention of a Senior Arbitrator, who will exercise the discretion conferred by Rule 33.2. If, as here, the dispute arises after the date has been scheduled, the pre-hearing arbitrator must decide the issue.

In Karagoz and Aviva Canada Inc., Aviva hired Ottawa counsel on an application by a GTA applicant, and despite the applicant's objection, the Commission scheduled a telephone pre-hearing, without exercising discretion under Rule 33.2. In effect, by hiring Ottawa counsel who was unwilling to attend the pre-hearing, Aviva was refusing to adhere to the established scheduling practice of the Commission. Aviva's effort to dictate the practice of the Commission was reason enough to require personal attendance.

In Premananda and RBC General Insurance Company the issue was again the insurer's refusal to be governed by the Commission. In that case, the insurer's representative failed to attend the pre-hearing, despite an Arbitrator's order to do so. Instead, counsel attended, without a representative and with fixed instructions.

In Csuzda and RBC General Insurance Company, Arbitrator Alves ordered expenses against an applicant who failed to appear at a pre-hearing, and offered no explanation.

The circumstances are different in this case. There is neither an arbitrary failure to attend nor a refusal to be governed by the Commission. Ms Reid has a valid medical reason for not attending.

In Karagoz and in Premananda, Arbitrator Wilson based his decision in part on the view that personal attendance at pre-hearings is critical to their success and that this policy is reflected in the Commission's scheduling practice. My view is that the Commission's practice does not reflect that policy because the Commission routinely schedules pre-hearings both in person and by telephone. I note as well that the Notice of pre-hearing that Ms Reid received does not assert a policy of personal attendance. On the contrary, it informed her that the pre-hearing is designed for the direct involvement of both parties and that, if she could not attend in person, she was expected to be available to participate by telephone.

The practice could also not be founded in RBC's right to question and assess Ms Reid, because RBC has no right to discovery in the arbitration process. Although I agree that personal attendance sometimes enhances the effectiveness of a pre-hearing by allowing a freer exchange of information and greater ease of obtaining instructions, that consideration does not lead to a blanket requirement that all pre-hearings be in person. The likelihood that personal attendance will lead to a more effective pre-hearing is one factor to be taken into account on a case by case basis, in exercising discretion under Rule 33.2. Exercise of that discretion is also informed by Rule 37.3 which provides that an arbitrator will not hold an electronic hearing, if satisfied that to do so would "significantly prejudice" a party. Rule 1.1 which mandates interpreting the Rules "to produce the most just, quickest and least expensive resolution of the dispute", must also be considered.

Here, proceeding as RBC suggested would have required a further attendance with its consequent delay and expense. This factor must be given significant weight in this application where the total amount of the benefits in dispute is $1,203.80. In addition, the only prejudice that RBC alleged was breach of its non-existent right to discovery.

As noted above, I ruled that Ms Reid could participate by telephone. The pre-hearing proceeded and Ms Reid was able to participate fully by telephone.

May 18, 2006

Jeffrey Rogers Arbitrator

Date