Neutral Citation: 2008 ONFSCDRS 188 FSCO A08-000767

BETWEEN:

CLAUDIA SUHANIC-KNOX Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

PRE-HEARING DECISION

Before: Arbitrator John Wilson Heard: By telephone conference call on November 7, 2008.

Appearances: Theodore P. Charney for Mrs. Suhanic-Knox Daniel Strigberger for Economical Mutual Insurance Company

Issues:

The Applicant, Claudia Suhanic-Knox, was injured in a motor vehicle accident on March 30, 2006. She applied for statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Suhanic-Knox applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the scheduling of this matter dependent on the availability of the Insurer's counsel?

Result:

The arbitration hearing remains scheduled to commence on January 12, 2009, notwithstanding the current unavailability of counsel for Economical.

EVIDENCE AND ANALYSIS:

Mrs. Suhanic-Knox requested that the arbitration hearing take place as soon as possible. Her counsel, Mr. Charney, stated that with a few minor exceptions, productions were complete and the case was almost ready for hearing. He suggested that the hearing commence on January 12, 2009. Mr. Strigberger stated that he was not available for those dates, and suggested a hearing commencing March 23, 2009.

Mr. Charney replied that his first possible availability after the January dates would be in June of 2009.

While Mr. Charney submits that his client is entitled to the earliest possible hearing date, Mr. Strigberger insists that Economical is entitled to be represented by its counsel of choice, something that would be impossible if the arbitration were set for January.

The arbitration process is supposed to lead to "a most just, quickest and least expensive resolution" of a dispute. It is also part of a system whose goals were defined by Gonthier J. in Smith v. Co-operators General Insurance Co. as: "one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance."²

As such, it has its own particularities. The choice of forum and other such tactical decisions are largely in the choice of the insured. For example, an insurer cannot launch an arbitration proceeding to deal with disputes between it and its insured. KN. Feldman, J.A. in Liberty Mutual Insurance Co. v. Fernandes 2006 CanLII 30212 (ON CA), [2006] O.J. No. 3514 observed the following: "By leaving the choice of forum always with the insured, the legislature has guaranteed that the insured maintains control of the process including its timing and cost."

On the other hand, in the criminal sphere it is well established that an accused under the Charter has the right to retain and instruct competent counsel of the accused's choice.³ The decision of the Divisional Court in Stolove v. College of Physicians and Surgeons of Ontario ⁴ however suggests that in the setting of administrative tribunals, the same right does not necessarily prevail.

Indeed, there is much jurisprudence to suggest that the setting of a date for a hearing is ultimately at the discretion of the tribunal, not the parties. It is clear that the individual choice of counsel may well be trumped by the need for a relatively prompt hearing process. In the Federal Court, Dubé J. has framed the boundaries of a party's right to choose counsel:

The plaintiff has the right to be represented by counsel or an agent, but that right does not mean that the plaintiff can insist on adjournments or dates of his choice if his counsel is not available. The leading case on this point is a Federal Court of Appeal judgment, Pierre v. Minister of Manpower and Immigration. In that case, an application had been made to the Court to quash the deportation order made against the applicant because of the denial of an adjournment to allow the latter to retain the services of counsel. The special inquiry officer's refusal to adjourn an imperative hearing led to the withdrawal of the applicant's counsel.⁵

Likewise Eberle J. viewed the issue in a similar manner:

Where the person has a right to choose counsel to represent him, a choice must be from amongst those who are ready and able to appear on his behalf within the reasonable time requirements of the officer or tribunal. Thus, a person cannot select the busiest counsel in the area and insist on being represented by him when that counsel, on account of prior commitments, would not be able to appear before the council without unduly delaying the course of the proceedings.⁶

Eberle J. went on to effectively place the onus on parties and their respective counsel to accommodate the hearing process, and the dates chosen by the tribunal.

When faced with a trial date which was inconvenient for him what, in my respectful view, Mr. M. ought to have done was either to make arrangements for other counsel to represent the accused or to inform the accused that he was unable to the take the case on that date and that she would have to get some other counsel of her choice. In my view, it is not competent for an accused to dictate the date of trial by saying, as she said in Provincial Court on December 19 in answer to questions of Mr. M., that she wanted him to be her counsel and no one else. As I said before, her right to counsel of her choice is a right to counsel of her choice who can proceed with the trial on the date set for trial. If with a month's lead time from December 19 to January 18, Mr. M. has not taken steps such as I have indicated, or other satisfactory steps to have the accused represented at the trial tomorrow, then it would appear to me that he has failed to do what he ought to have done in the discharge of his obligations to his client and to the Court.

If the lawyer chosen by a party cannot be available for the hearing as scheduled, then the obligation on that counsel is to attempt to find alternative counsel who can attend. In the words of Dube J.:

A law firm which handles over a hundred immigration cases cannot limit itself to the availability of one particular counsel and impose this on the tribunal.⁷

The practice at the Commission has been generally to set dates for pre-hearings and hearings on consent wherever possible. However, there exists a discretion in the arbitrator to fix a date for a hearing, usually in cases where there is no agreement on proposed dates, or the dates suggested run contrary to the statutory goals of the accident benefit scheme.⁸

Rule 33.1 of the Dispute Resolution Practice Code (4th Ed., Updated October 2003) reiterates the discretion of an arbitrator to set dates for a hearing:

One or more pre-hearing discussions may be held before an arbitrator who will attempt to resolve the dispute, and will assist the parties to prepare for the arbitration by:

(f) setting dates for the hearing;

Obviously, as with the exercise of any adjudicative discretion, the power is not unbounded. It must be exercised in a just and fair manner, that gives the parties some opportunity to speak to the issue. "Just" has been defined as "Legally right; lawful; equitable."⁹ Likewise, it can be "acting or done in accordance with what is morally right or fair, deserved, well grounded," or "right in amount."¹⁰

The discretion of an adjudicator is a judgement call in the context of each case that provides a wide range of options in the exercise of that discretion, provided only that the order is not based on "irrelevant factors", a failure to consider "relevant factors" or if the condition itself was an "unreasonable conclusion." In short, the discretion must be applied on a principled basis, and its application will "depend upon the circumstances of each case."¹¹

In this matter some of the relevant considerations in the exercise of my discretion are (in no particular order):

The principle, enunciated by KN. Feldman, J.A. in Liberty Mutual Insurance Co. v. Fernandes 2006 CanLII 30212 (ON CA), [2006] O.J. No. 3514 that: "that the insured maintains control of the process including its timing and cost."
Rule 1 of the Practice Code which provides for the "just, quickest and least expensive resolution of the dispute."
The actual availability of each counsel and any significant delays that would be caused by choosing dates based on joint availability.
Any prejudice to the parties that may result from the selection of one or more proposed dates.

Mr. Charney has advised that he is available for January 12, 13, 14 and 15, 2009. He also advised that virtually all of the documentary production has been completed, and that he could see no obstacle to proceeding to a hearing promptly. He further cautioned that his next available dates after January would not be until at least June, 2009.

Mr. Charney advised that Mrs. Suhanic-Knox had already incurred many of the benefits claimed in this arbitration, and that a reinstatement of her benefits pending hearing would not necessarily address any prejudice arising from fixing a late date for this hearing.

Mr. Strigberger took the position that his first available date would be as of March 23, 2009. He was not prepared to double-book the January dates, since he felt that there was little possibility that his calendar would clear and he would actually ever be available for this arbitration. He further suggested that the March dates would fall within the maximum four to six months wait that was provided for in the Practice Code.

I accept that I have the discretion to fix dates with or without the prior consent of a party or parties, providing only that I exercise that discretion judicially and fairly.

If this matter is scheduled on consent based on the joint unavailability of counsel, it will only be heard in June, 2009. That would be beyond the maximum delay provided for in the practice at the Commission.

If it is to be heard in January, there is a strong possibility that Economical's chosen solicitor may not be available. While it may well be an answer to say that there are some seventeen solicitors listed on the letterhead of Samis & Company, Mr. Strigberger's firm, and that "A law firm which handles over a hundred (immigration) cases cannot limit itself to the availability of one particular counsel and impose this on the tribunal", in this matter there is need to take that stance.

Mr. Charney has reiterated that his client would not oppose an adjournment of the January dates should counsel from Economical actually be unable to attend due to previous, conflicting judicial commitments. He has also pointed out that the majority of matters settle both at arbitration and in the courts, and that Mr. Strigberger's January commitments should not necessarily be exempt from this basic rule. Consequently, I see little, actual prejudice in scheduling the arbitration hearing for January, given Mr. Charney's concession on adjournments.

I do not see the same compelling reasons for adopting the March dates advocated by Mr. Strigberger. Firstly, he has given no undertaking as to adjournments. Secondly, forcing an applicant on, at the behest of the Insurer, would violate the principle that "the insured maintains control of the process including its timing and cost." Thirdly, I do not accept that a hearing should be set at the outside perimeter of the permitted times, over the objection of an applicant when earlier dates are available and it appears that the matter is now ready to be set down for trial.

I have already ordered that the parties set aside the January, March and the June dates for this hearing. In the event that the January date is adjourned, then there remains the possibility that it may proceed in June, and the certainty that both counsel will be available at that time.

Consequently, I decline to alter the hearing dates set at the pre-hearing, and anticipate that both parties will do their utmost to have this matter proceed promptly. In the interim, I will remain seised of this matter in the event that circumstances change prior to the arbitration.

EXPENSES:

I leave any expenses to the arbitrator ultimately hearing the substantive issues in this matter.

November 25, 2008

John Wilson Arbitrator

Financial Services Commission of Ontario