Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 6

FSCO A07-000221

BETWEEN:

F. M.

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator Suesan Alves

Heard: By written submissions received by January 15, 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. On this motion, counsel for Mr. M. sought an adjournment of the hearing to obtain a medical report from Mr. M’s pain specialist. Certas opposed the requested adjournment.

The issues in this hearing are:

Should the hearing be adjourned?

Result:

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.

EVIDENCE AND ANALYSIS:

Counsel for the Applicant requested an adjournment of the hearing scheduled to commence on January 18, 2010. The request, dated January 14, 2010, was faxed at 5:26 p.m. The adjournment was requested to obtain a medical report from the Applicant’s pain specialist Dr. Kevin Rod on the basis that the Applicant has been under Dr. Rod’s care since 2008; counsel was unaware of this “and it has only recently come to light. Mr. M.[ ] clearly did not understand that the treatment he has been receiving from this specialist was germane to the issues in his accident benefits claim.”

Counsel for the Insurer opposes the adjournment. She submits that this is the third request by counsel for the Applicant for an adjournment. The earlier two were made on a timely basis and the Insurer consented to them. The present request was made quite literally on the eve of the hearing. The Insurer has prepared for the arbitration and is ready to go.

Counsel for the Insurer further submits that Practice Note 9 of the the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003, which deals with adjournments, states that this is one of the circumstances under which adjournments will be refused — where the parties have not made early arrangements to ensure the availability of documents or the attendance of witnesses. Further, the failure of counsel for the Applicant to obtain documentation or arrange for the attendance of Dr. Rod at the hearing should not prevent the Insurer from access to timely, cost-effective and fair dispute resolution services.

I believe this situation is somewhat different from the one outlined in Practice Note 9, in that in this case, the client had not appreciated the implications of his treatment with Dr. Rod and had not informed his counsel of this treating practitioner. Counsel for the Applicant submitted that his client was more focussed on treatment than on the arbitration process, and that many of the decisions his client made and his actions and inactions were likely informed by his ongoing use of medications which were addictive and caused dependence. I do not have evidence which would attribute the failure to obtain the report or to arrange for the physician’s attendance at the hearing, to inaction or delay on the part of his counsel.

From the perspective of counsel for the Applicant, Dr. Rod’s evidence will likely be critical to the outcome of the arbitration as he continues to treat the Applicant both for an ankle injury and chronic back pain which the Applicant attributes to the accident.

I am prepared to grant the requested adjournment, although I note that in addition to the Applicant’s three requests for adjournments, the Insurer has also requested and been granted one adjournment of the hearing.

The hearing will be peremptory to the Applicant and will not be further adjourned at his request unless there is some unforeseen and compelling circumstance. As the Insurer has fully prepared for the hearing, the Applicant is responsible for costs thrown away.

For these reasons, I have adjourned the arbitration hearing to July 19, 20, 21 and 22, 2010, dates on which both counsel have indicated they are available.

January 15, 2010

Suesan Alves Arbitrator

Date