Neutral Citation: 2010 ONFSCDRS 54

FSCO A07-000221

BETWEEN:

F. M. Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

DECISION

Before: Arbitrator Suesan Alves

Heard: By written submissions received by February 16, 2010

Appearances: Richard Levin for Mr. M Joy E. Stothers for Certas Direct Insurance Company

Issues:

The Applicant, F.M. was injured in a motor vehicle accident on September 22, 2004. He applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, (the "Act") claiming various statutory accident benefits from Certas Direct Insurance Company ("Certas"), payable under the Schedule.¹ Certas disputes Mr. M.'s entitlement to all the relief he claimed.

In a decision dated January 15, 2010, I ordered an adjournment of the hearing, set new hearing dates peremptory to the Applicant and ordered that he would be responsible for costs thrown away.

A dispute has arisen between the parties as to the amount of those costs and whether they should be assessed and paid at this time or after the arbitration hearing is concluded.

The issue in this hearing is:

When should the Applicant pay the Insurer's costs thrown away?

Result:

The Applicant shall pay the Insurer's costs thrown away in an amount to be agreed upon or assessed after the arbitration hearing is concluded.

EVIDENCE AND ANALYSIS:

In a decision dated January 15, 2010, I granted the Applicant's request for an adjournment of the hearing to allow his counsel to obtain a medical report from a physician who had been treating the Applicant since 2008. The request was made on Thursday, January 14, 2010 at 5:26 p.m. in relation to a hearing scheduled to start on Monday, January 18, 2010 at 10:00 a.m. The Insurer had prepared for the arbitration, was ready to proceed and opposed the adjournment due to its timing.

The Order stated:

The hearing is adjourned to July 19, 20, 21 and 22, 2010. These dates are peremptory to the Applicant who will be responsible for costs thrown away.

Counsel for the Insurer submitted a Bill of Expenses for costs thrown away to counsel for the Applicant. Counsel for the Applicant responded that he would be pleased to address the issue of costs at the conclusion of the upcoming arbitration. Counsel for the Insurer then requested an assessment of expenses.

Rule 65.6 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003. ("the Code") provides:

An adjudicator may at any time clarify a decision or order that contains a misstatement, ambiguity or other similar error.

In light of the differing interpretations the parties have given the Order, I now resolve any ambiguity, pursuant to the provisions of Rule 65.6 of the Code.

I ordered the Applicant to pay the Insurer's costs thrown away. The Insurance Act, R.S.O. 1990, c.I.8, as amended, and the Code, both refer to "expenses" rather than "costs." I therefore amend the Order to substitute the term "expenses" for "costs." I clarify that the expenses ordered are payable by Mr. M. in any event, that is to say, regardless of his success or failure at the arbitration hearing. However, I did not order the Applicant to pay the Insurer's expenses thrown away forthwith. Accordingly, those expenses will be payable at the usual time, after the arbitration hearing is concluded.

The hearing is scheduled to take place in approximately three months. I defer the assessment of the expenses ordered on January 15, 2010, to the hearing arbitrator.

I amend the Order of January 15, 2010 to provide as follows:

The hearing is adjourned to July 19, 20, 21 and 22, 2010. These dates are peremptory to the Applicant. The Applicant shall pay the Insurer's expenses thrown away as a result of the adjournment of January 15, 2010, regardless of his success or failure at the arbitration hearing. The Applicant shall pay those expenses after the conclusion of the arbitration hearing. The assessment of those expenses is deferred to the hearing arbitrator.

May 5, 2010

Suesan Alves Arbitrator

Date

Financial Services Commission of Ontario