Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 92

FSCO A05-002154

BETWEEN:

JIE YU

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Judith Killoran

Heard:

May 17, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Vincent Genova for Ms. Yu

Kevin Griffiths for Pilot Insurance Company

Issues:

The Applicant, Jie Yu, was involved in a motor vehicle accident on February 7, 2002. She applied for statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Yu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Ms. Yu entitled to the expenses of the pre-hearing discussion?

Result:

Ms. Yu is entitled to $300 in expenses for the pre-hearing discussion.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion was conducted by me at 10:00 a.m., on May 17, 2006, at the offices of the Financial Services Commission of Ontario. Ms. Yu participated. No representative from Pilot attended. Mr. Genova, legal counsel, represented Ms. Yu. Mr. Griffiths, legal counsel, represented Pilot.

Mr. Griffiths informed us that Pilot's representative could not attend for personal reasons. He conceded that he had notice that the Insurer would not be available for the pre-hearing discussion. Due to the absence of Pilot's representative, it was not possible to conduct a productive pre-hearing discussion. I suggested that a resumption of the pre-hearing discussion should be scheduled to ensure the participation of Pilot's representative.

Mr. Genova submitted that Ms. Yu, the Applicant, had taken a day from work and travelled from Sarnia for the pre-hearing discussion. He did not object so much to the absence of Pilot's representative for personal reasons as he objected to the lack of notice given by Pilot. If notice had been given, two options were available. One, the pre-hearing discussion could have proceeded by teleconference and resumed later in-person with Pilot's representative. Second, the pre-hearing discussion could have been rescheduled to accommodate the in-person participation of all parties.

Mr. Genova's submissions have merit. Ms. Yu should not be penalized for her attendance at the pre-hearing discussion. Her attendance involved some financial and personal consequences which she was prepared to make in return for a fruitful pre-hearing discussion. Such a pre-hearing discussion did not occur.

Pursuant to Rule 67.2 of the Dispute Resolution Practice Code, a party may request a preliminary or interim order, at any stage within a proceeding. Rule 67.8 states that a request for an interim order on a preliminary issue may be made orally during a pre-hearing discussion, and will be dealt with in such manner as the adjudicator considers appropriate.

The pre-hearing discussion is designed for the direct involvement of both parties. The purpose of the pre-hearing discussion is to attempt to settle the dispute and assist the parties to prepare for arbitration. If one party is absent, the goals of the pre-hearing discussion cannot be met. In the case before me, the Applicant was entitled to notice that the other party could not attend the proceeding. Then alternative arrangements could have been made. As no notice was given to Ms. Yu, she incurred needless expenses for which she deserves compensation.

I exercise my discretion to fix expenses at $300 to be paid by Pilot to Ms. Yu.

June 2, 2006

Judith Killoran Arbitrator

Date