Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 92
FSCO A07-000872
BETWEEN:
JEAN FORSYTH
Applicant
and
ACE INA INSURANCE
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Judith Killoran
Heard: By telephone conference call on May 23, 2008.
Appearances: Joseph Marcuccio for Ms. Forsyth
Stanley C. Tessis for ACE INA Insurance
Issues:
The Applicant, Jean Forsyth, was injured in an accident on June 30, 2004. She was a passenger on a Greyhound bus. Ms. Forsyth applied for statutory accident benefits from ACE INA Insurance (“ACE”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Forsyth 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 issues are:
Shall Smith & Associates be removed as counsel of record for ACE INA Insurance?
Shall the hearing scheduled to start on May 26, 2008 be adjourned?
If the answer to the above question is “yes,” is Ms. Forsyth entitled to have her expenses of the late adjournment paid by ACE INA Insurance? If so, what is the amount of expenses to which she is entitled?
Result:
Smith & Associates is removed as counsel of record for ACE INA Insurance. Mr. Stanley Tessis of Laxton Glass LLP is now counsel of record for ACE INA Insurance.
The hearing scheduled to begin on May 26, 2008 is adjourned to begin on October 20, 2008.
Ms. Forsyth is entitled to have her expenses arising from the late adjournment paid by ACE INA Insurance. ACE INA Insurance shall pay $5,000 to Ms. Forsyth as her fixed expenses.
EVIDENCE AND ANALYSIS:
FSCO received correspondence dated May 22, 2008 from the law firm of Smith & Associates, copied to all parties, confirming that it was no longer retained by the insurer. The complicating factor was that an arbitration hearing was scheduled to begin on May 26, 2008 in Espanola, Ontario.
I conducted a motion hearing on Friday, May 23, 2008 to deal with the following:
the removal of Smith & Associates as counsel of record;
an adjournment request from the new counsel of record; and
a request from Ms. Forsyth for expenses arising from the late adjournment request to be paid by ACE INA Insurance.
I gave the parties an oral decision at the conclusion of the hearing with a written decision to follow.
Counsel of Record
On May 22, 2008, the law firm of Smith & Associates advised FSCO, copied to all the parties, that it was no longer retained by the insurer in this matter. It sought to be removed as counsel of record. On the same date, Mr. Stanley C. Tessis of Laxton Glass LLP informed FSCO that his firm had been retained by the insurer.
On May 23, 2008, I conducted a motion hearing by teleconference and confirmed that Rule 9 of the Dispute Resolution Practice Code (the “Code”), which governs the withdrawal of a representative from a proceeding, had been satisfied. Consequently, I ordered Smith & Associates removed as counsel of record for the insurer. Mr. Tessis of Laxton Glass LLP confirmed that he had been retained as counsel of record.
Adjournment Request
The insurer sought an adjournment of the arbitration hearing which was scheduled to begin on May 26, 2008. Ms. Forsyth opposed the adjournment request on the grounds that she would be prejudiced and as an 80-year old woman, should not have to endure the consequences of an adjournment. She was prepared to proceed as were her witnesses, including her daughter who had taken vacation time to attend, testify and support her. Further, Ms. Forsyth had incurred significant costs and disbursements in preparation for the hearing.
Ms. Forsyth argued that the request for an adjournment did not comply with Rule 72 of the Code or Practice Note 9 which contains FSCO’s adjournment policy. Rule 72.2 requires that a request for an adjournment be served on the other parties and filed within 7 days in advance of the scheduled proceeding or such lesser period of time as the adjudicator may permit. The preamble to Practice Note 9, which deals with adjournments, provides: “The Commission has an obligation to conduct arbitrations efficiently and speedily. Parties are contacted and agree to pre-hearing and hearing dates well in advance of the dates set. Therefore, adjournments are granted only sparingly once dates have been set.”
Ms. Forsyth submitted that despite hearing dates which had been set on December 14, 2007, the insurer had sought an adjournment earlier to arrange for insurer examinations. This was denied by Arbitrator Wilson in his decision letter dated May 2, 2008. Also, the insurer had participated in settlement discussions on May 21, 2008 and gave no indication that it would be seeking an adjournment of the hearing.
Insurer’s counsel submitted that it had not obtained Ms. Forsyth’s file and could not possibly review it and prepare for a hearing in 3 days.
I was concerned about the late adjournment request by the insurer which was to Ms. Forsyth’s disadvantage. At the same time, new counsel for the insurer did not have sufficient time to prepare for a hearing. In the circumstances, it was necessary to grant an adjournment in order to ensure that the insurer would have proper representation. The adjournment was required in order to ensure a full and fair hearing. Consequently, I ordered the adjournment of the hearing until October 20, 21, 22 and 23, 2008.
EXPENSES:
I exercise my discretion to award Ms. Forsyth her expenses incurred in this preliminary issue hearing. I find that Ms. Forsyth is entitled to have her expenses of the late adjournment request paid by ACE INA Insurance. I heard submissions from both parties about the amount of expenses. I fix the expenses at $5,000, inclusive of fees, disbursements and GST. This is an appropriate amount in the context of preparation for a 4-day hearing. Much of the preparation will have to be redone prior to the newly scheduled hearing, and as such, will amount to costs thrown away.
June 13, 2008
Judith Killoran
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 92
FSCO A07-000872
BETWEEN:
JEAN FORSYTH
Applicant
and
ACE INA INSURANCE
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Smith & Associates is removed as counsel of record for ACE INA Insurance. Mr. Stanley Tessis of Laxton Glass LLP is now counsel of record for ACE INA Insurance.
The hearing scheduled to begin on May 26, 2008 is adjourned to begin on October 20, 2008.
Ms. Forsyth is entitled to have her expenses arising from the late adjournment paid by ACE INA Insurance. ACE INA Insurance shall pay $5,000 to Ms. Forsyth as her fixed expenses.
June 13, 2008
Judith Killoran
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.