Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 35

FSCO A04-001815

BETWEEN:

MR. C

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before: Suesan Alves

Heard: By telephone conference call on February 21, 2007

Appearances: John S. Lockhart for Mr. C

Darrell March for Kingsway General Insurance Company

Issues:

At a resumption of the pre-hearing held on February 21, 2007, Kingsway renewed its request for terms and conditions for an adjournment granted in April 2006. Mr. C opposed the Insurer’s requests. For the reasons which follow, I decline to impose the requested terms and conditions.

The issues are:

Should terms and conditions be imposed now in relation to an adjournment granted in April 2006?

Result:

No terms and conditions should be imposed at this time.

EVIDENCE AND ANALYSIS:

Background

In August 2004, Mr. C’s then counsel filed an arbitration application and a brief of documents with the Financial Services Commission of Ontario. In September 2004, Mr. C began representing himself. In about March 2006, Mr. C retained new counsel. On March 29, 2006, the Applicant’s new counsel, Mr. Lockhart, sought an adjournment of the hearing, which was scheduled to commence on April 24, 2006, because he wished to obtain and review the file from the Applicant’s former counsel and properly prepare for the hearing.

As the adjournment officer, I wrote to counsel for the Applicant and to counsel for the Insurer asking that each address specific points. In the absence of a response, I granted an adjournment on April 13, 2006, without conditions, and stated that I had not heard from counsel. The new hearing was scheduled to commence on March 5, 2007 – the earliest date both counsel informed the case administrator they were available.

As the new hearing date approached, counsel for the Insurer requested a resumption of the pre-hearing to deal with the terms of the adjournment he had requested in April 2006. Counsel for the Applicant advised that he wished to respond by oral submissions at a resumption of the pre-hearing. At the pre-hearing resumption, counsel agreed to engage in a settlement discussion – and, failing settlement, to revisit the question of the terms of the adjournment. The issues in arbitration were not resolved as a result of the settlement discussion.

Request for Terms

Counsel for the Insurer renewed his request for terms of the earlier adjournment. He submitted that his goal had been to ensure that the hearing would proceed in 2007 and that the status quo would prevail. To this end, he requested that the hearing be peremptory to the Applicant; that no interest would be payable during the period of the adjournment; that the Applicant would be prohibited from filing any new medical evidence in support of his claim, or that if he was permitted to file a report, the Insurer should have an opportunity to medically assess him and provide a responding report; and that all of the witnesses be bound over to the new hearing date.

Counsel for the Applicant opposed the request. He submitted that a decision had been made, the basis for which was set out in my letter adjourning the hearing. He submitted that I was probably functus, that the Applicant had relied on and proceeded on the basis of the Order, and it was inappropriate now to change the basis on which the Applicant proceeded.

Reasons for Decision

I am not persuaded that I should reopen the matter. No reasonable explanation was offered by counsel for the Insurer for a delay of approximately ten months in requesting that the terms of the adjournment be revisited.

However, if I am wrong, I would not have granted most of the terms sought by the Insurer at that time. While there are two orders that I would have been prepared to make at the time, they seem pointless now.

I find the Applicant’s request for an adjournment was made for good reason on a timely basis in relation to the arbitration hearing date. The Dispute Resolution Practice Code¹ requires parties to apply for an adjournment in writing at least seven days before the hearing. Mr. C applied almost a month before the hearing was scheduled to commence. It was his first request for an adjournment of the hearing.

Although I would have been prepared to make an order that the new hearing date was peremptory to the Applicant, I see no point in now making the March 2007 hearing date peremptory to him. He and his counsel have proceeded to obtain various reports, served summonses and appear to be ready to proceed with the hearing as scheduled.

Counsel for the Insurer requested that any witnesses who had been served be bound over to the new hearing date. Although I would have been prepared to make such an Order in relation to witnesses who had been served, it is not clear to me that the Insurer had summonsed its witnesses in April 2006. At the resumed pre-hearing conducted in February 2007, counsel submitted that the Insurer’s witnesses had been put on notice and prepared. Even if the witnesses had been served, in my view, an Order which binds over witnesses should not be made ten or eleven months after the date on which they may have been summonsed.

Counsel for the Insurer requested that the Insurer not be required to pay interest pending the adjournment. As other arbitrators at the Commission have held, interest is a statutory provision, and I am not persuaded that I have the authority to deprive the Applicant of interest during the adjournment.

Counsel for the Insurer requested that the Applicant not be permitted to file new medical reports, and alternatively, if any new reports were permitted, that the Insurer be permitted an opportunity to have Mr. C submit to a medical examination and to file a responding report.

As I understand it, at the time Mr. C retained new counsel in 2006, he had not as yet obtained a medical report which addressed his entitlement to weekly income replacement benefits from October 6, 2002 and ongoing.

While there will be cases where such an order may be appropriate, I do not believe that this is such a case. The Applicant has an ongoing claim for income replacement benefits. The effect of such an order would be to deprive Mr. C of the opportunity to adduce evidence which could establish his entitlement to the benefits he claims. It would deprive him of an adjudication of his claim on the merits, and of the benefit of having retained counsel. There is the further problem that Mr. C has now incurred the expense of obtaining medical reports to support his claim relying on the absence of any order imposing restrictions on his right to file such evidence. I was not advised of any dispute concerning Kingsway’s request for further insurer examinations. It would appear that since the adjournment was granted, counsel have been able to resolve any dispute concerning a request which may have been made for an insurer examination.

In my view, costs thrown away would have been an appropriate consideration at the time of the request for an adjournment. Although some preparation takes place throughout the arbitration process, in most cases counsel expend the bulk of the preparation time shortly before the hearing. Of this, only a portion would be considered as costs thrown away. As the adjournment was requested just shy of a month before the hearing, and because Mr. C was representing himself, I find it unlikely that costs thrown away would have been a significant amount. I infer that any costs thrown away in this case were unlikely to have been significant because the Insurer did not seek this term at the time the adjournment was requested or at the time the request was renewed.

For these reasons, I decline to impose the terms Kingsway requested.

March 1, 2007

Suesan Alves

Arbitrator

Date