Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 130

FSCO A10-003830

BETWEEN:

CONSTANTINE TOURKOS Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY Insurer

PRE-HEARING DECISION

Before: John Wilson

Heard: August 17, 2012, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Joga Chahal for Mr. Tourkos Marlett Dobson for Kingsway General Insurance Company

Issues:

The Applicant, Constantine Tourkos, was injured in a motor vehicle accident on July 4, 2008. He applied for statutory accident benefits from Kingsway General Insurance Company (“Kingsway”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Tourkos applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the resumed pre-hearing discussion of this case held on August 17, 2012, Mr. Tourkos requested an adjournment of the arbitration to April of 2013.

The issues are:

1. Is Mr. Tourkos entitled to an adjournment?

Result:

1. Mr. Tourkos is not entitled to an adjournment. Consequently the arbitration will proceed as scheduled on October 15, 16, 17 and 18, 2012.

EVIDENCE AND ANALYSIS:

The original pre-hearing in this matter took place on January 10, 2012. At that pre-hearing, Mr. Boris Goryayev, who appeared on behalf of Mr. Tourkos, claimed to be unable to undertake settlement discussions since he had not yet obtained the complete file from the previous solicitor or Kingsway. Mr. Goryayev’s firm, Bougadis, Chang LLP, had represented Mr. Tourkos since at least April 19, 2011.

Notwithstanding his professed unfamiliarity with the file Mr. Goryayev agreed that the arbitration should take place on October 15, 16, 17 and 18, 2012.

Due to the refusal of Mr. Goryayev to participate in any fruitful discussions at the pre-hearing, I ordered that the pre-hearing be resumed at a later date.

At the conclusion of the resumed pre-hearing on August 17, 2012, Mr. Chahal advised that his firm had scheduled further medical examinations for Mr. Tourkos on October 15, 2012, the first scheduled day of the arbitration. He also advised that he intended to rely upon the resulting reports in this arbitration, and consequently would require an adjournment.

When questioned as to when the medical examinations were arranged, Mr. Chahal advised that it would have been sometime in June. He had not advised counsel for Kingsway or FSCO of the proposed examinations or of the necessity to obtain an adjournment. The first alternate date that both parties would be available for a new hearing would be April 29, 2013, almost 16 months after the original pre-hearing.

Ms. Dobson on behalf of Kingsway opposed the requested adjournment as not being in conformity with the arbitration process at FSCO, and more particularly because Mr. Tourkos through his counsel had already agreed to fixed dates for the arbitration, and could have arranged for further medical examinations at an earlier time without adversely affecting the dates selected for the hearing.

Adjournments are addressed by both the Dispute Resolution Practice Code and Practice Note 9, which reflects the overall policy on adjournments at FSCO. Essentially, once dates are set, adjournments should be only granted sparingly and to address situations that are beyond the control of the party requesting the adjournment.

This policy recognizes the public interest in dealing with accident benefit disputes promptly and ensuring that differences between insureds and insurers do not unduly delay the provision of needed accident benefits.

It should be noted that Mr. Tourkos opted for arbitration at FSCO. Once mediation failed he had the option of pursuing the matter in court, proceeding by way of private arbitration or using the facilities of FSCO’s dispute resolution group. Each has its own attributes, and more importantly its own set of rules for proceeding.

In electing to arbitrate this matter at FSCO, Mr. Tourkos implicitly accepted that the arbitration would proceed in the manner outlined in the Dispute Resolution Practice Code. This included the concept of fixed hearing dates and the consequentially limited opportunity to adjourn matters once the date is fixed.

The Divisional Court’s jurisprudence, however, has lately cast doubts on the wisdom of blindly implementing the policies incorporated in Practice Note 9. Gonsalves² stands for the proposition that Practice Note 9 and its fellow guidelines are informative and not directory, and the arbitrator hearing an adjournment must retain and be prepared to exercise a discretion to depart from those guidelines. In Gonsalves, T.R. Lederer J. observed:

The arbitrator had a wide discretion to ensure a fair hearing. Neither the Dispute Resolution Practice Code, first edition updated October 2003, (the “Code”) nor Practice Note 9 can interfere with that overarching responsibility. Although the arbitrator did not specifically refer to the provisions of the Code or Practice Note 9, the finding of fact by the arbitrator was sufficient to explain why those provisions were not germane to the issue she was deciding.

He concluded:

the Director’s Delegate unreasonably fettered the discretion of the arbitrator by requiring “extraordinary circumstances” or “unavoidable delay” as conditions precedent to the adjournment.

Kalin,³ likewise, stands for the proposition that administrative decision-makers in exercising a discretion as to whether to grant an adjournment, are not permitted to act arbitrarily. In the words of Molloy J.

The Tribunal may take into account the public interest and the interest of the Tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means.

Read together with Gonsalves, Kalin is a strong judicial reminder that adjournments must not be refused without due consideration of all aspects of the case. An unthinking application of tribunal policy is not good enough.

In this matter, while it is clear that Mr. Tourkos’ request for an adjournment does not come within the parameters of Practice Note 9, there are more compelling reasons for refusing it at this time.

Fundamentally, counsel for Mr. Tourkos has fumbled its carriage of the arbitration file. Counsel was unprepared at the first pre-hearing in January since he had not bothered to obtain a copy of the file, despite being on the record as counsel for almost ten months. Consequently, the pre-hearing was ordered resumed.

Well over a year after being retained, counsel in June of 2012 apparently decided that further medical opinions would be appropriate and scheduled examinations for what had been agreed to be the first day of the arbitration hearing.

He did not communicate this information to either opposing counsel or FSCO. Rather, it was first mentioned in an off-hand comment at the resumption of the pre-hearing on August 17, 2012.

Mr. Chahal now advises that he intends to use the resulting reports in this arbitration, something that would necessitate a significant adjournment, since the resulting reports would have to be filed and, in all likelihood, the Insurer would request to have the right to obtain responding reports.

Nothing was mentioned of this potential delay until late in the resumed pre-hearing.

I canvassed the parties as to alternate available dates and was advised that April 2013 would be the earliest common availability of counsel.

Mr. Chahal did not advise of any significant change in his client’s condition that would warrant new medical reports. Rather, he took the position that a review of Mr. Tourkos’ file suggested the need for more medical evidence.

However, on April 10, 2012, Bougadis, Chang LLP, Mr. Chahal’s firm, served and filed a complete “FSCO Arbitration Document Brief”, containing the notes and reports of Dr. Anastassios Karantonis, Dr. Otto Veidlinger and Dr. Shahriar Moshiri.

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.

FSCO arbitrations, like case-managed matters in the courts, aim to “produce the most just, quickest and least expensive resolution of the dispute.”⁴

Master Haberman, in dealing with an adjournment, outlined the strengths of the fixed hearing dates that are also a key element in FSCO arbitrations:

There is a sound reason for this approach. One of the main features of a Case Managed system is fixed trial dates. Counsel and parties appreciate knowing when a matter is going to be called, so they can gear up for trial with certainty that the dates scheduled are accurate. Witnesses can be alerted to when they will be needed, counsel can pace themselves in their preparation and not have to prepare and re-prepare when they are on a list and not reached. This leads to cost savings and has long been viewed by the Bar as one of the major advantages of Case Management.⁵

This policy towards fixed hearing dates is not new. In Khimji v. Dhanani Estate⁶, notwithstanding an agreement by a lawyer to take on a trial, if adjourned, the court not only refused the adjournment but dismissed the plaintiff's case altogether. On appeal, Doherty J.A., speaking for the Court of Appeal, outlined the importance of fixed hearing dates, even in the context of a change in counsel:

Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. Where a litigant successfully obtains the adjournment of a trial having failed to exercise due diligence in retaining counsel, that litigant must expect that absent unforeseen circumstances, the trial will proceed on the new date.

Here, the due diligence is not in retaining counsel promptly, but is in counsel obtaining the file, reviewing same in a timely matter and deciding from that review whether further medicals are required.

Rule 6.03 (1) of the Rules of Professional Conduct provides that: “(A) lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.” It is at the very least discourteous to agree to fixed dates for a hearing and then blithely proceed to schedule conflicting medicals for the same date, without advising opposing counsel.

As noted earlier, adjournments are discretionary. They must be dealt with fairly, and the parties must be accorded an opportunity to speak to any adjournment request. In this matter, both parties have had such an opportunity.

Counsel for Mr. Tourkos wants this adjournment. He wants Kingsway to accommodate his dilatory approach to file management. He does not offer to forgo interest or to provide any other concession that would mitigate the increased delay in this matter.

If an adjournment is granted, Kingsway will have to wait a further six months or more to have this matter dealt with. Mandatory statutory interest will continue to accumulate on any award of benefits that might be made at arbitration. Kingsway is entitled to have its dispute with its client decided within a reasonable timespan.

Given the prejudice to the Insurer of further delay, the failure of the request to comply with the general directions for arbitrations provided by the Dispute Resolution Practice Code, the absence of compelling reasons for an adjournment and the fact that delay on the part of the Applicant’s counsel is at the root of any prejudice he may suffer, I refuse to grant Mr. Tourkos’ request for an adjournment.

Consequently, the arbitration hearing in this matter will proceed as scheduled on October 15, 16, 17 and 18, 2012.

EXPENSES:

I leave the issue of expenses to the hearing arbitrator in this matter.

September 4, 2012

John Wilson Arbitrator

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 130

FSCO A10-003830

BETWEEN:

CONSTANTINE TOURKOS Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Tourkos is not entitled to an adjournment. Consequently the arbitration will proceed as scheduled on October 15, 16, 17 and 18, 2012.

2. I leave the issue of expenses to the hearing arbitrator in this matter.

September 4, 2012

John Wilson Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Certas Direct Insurance Co. v. Gonsalves 2011 ONSC 3986, [2011] O.J. No. 3290
3. 3Kalin v. Ontario College of Teachers 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523
4. 4Rule 1.1, Dispute Resolution Practice Code
5. 5Wancho v. Liberty Mutual [2002] O.J. No. 1488
6. 62004 CanLII 12037 (ON CA), 69 O.R. (3d) 790