Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 134

FSCO A13-001912

BETWEEN:

JUNIOR LLOYD THOMPSON

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Alan Mervin, Arbitrator

Heard: Written submissions received by March 30, 2015

Appearances: Savannah Chorney for Mr. Thompson

Robert P. Bowman for State Farm Mutual Automobile Insurance Company

Issues:

The issue in this expense hearing is:

Is Mr. Thompson entitled to his expenses incurred in respect of RBC’s adjournment request?
If so, what is the amount of expenses to which Mr. Thompson is entitled?

Result:

The Applicant is not entitled to its expenses in this arbitration hearing.
Each party will bear its own costs of the adjournment.

BACKGROUND

The Applicant, Junior Lloyd Thompson, was injured in a motor vehicle accident on December 23, 2009. This matter was scheduled to proceed to arbitration on December 15, 16, 17 and 18, 2014 in Toronto.

This date was set with the agreement of all parties at a pre-hearing held before Arbitrator Bujold on March 3, 2014.

On November 25, 2014, Mr. Bowman, on behalf of RBC sent a written request for adjournment of the hearing. This letter advised that RBC had just recently been served with several new expert reports addressing the issue of entitlement to post- 104 week Income Replacement Benefits.

The expert reports were served on RBC by courier on November 12, 2014, near the eve of the 30 day period preceding the arbitration.

RBC requested the adjournment so that it could conduct further IME assessments, now required as a result of the recently received reports from Mr. Thompson.

RBC further submitted that any further assessments obtained from its experts would then necessarily fall inside the 30 day rule for delivery of reports for the hearing, thereby making them prima facie inadmissible at the hearing should RBC wish to rely on them.

As I was the adjournment officer that week assigned with handling all adjournment requests for upcoming arbitrations, I was given the documentation filed in support of the adjournment request. As there was no consent from the Applicant, I asked the case administrator to contact the Applicant for a written response to the submission of the Insurer in support of the adjournment.

On November 27, 2014, Mr. Thompson’s representative, Ms. Savannah Chorney, wrote advising that the Applicant was opposed to this adjournment request, had not been given an opportunity to make submissions, would like to have a resumption of pre-hearing to deal with this issue, and requested that I disallow the adjournment. She also requested that, in the event that I grant the adjournment, that I consider awarding her costs incurred as a result of the adjournment.

Having read and considered the submissions of both parties, I granted the adjournment request. I found that, although the reports were served on the Insurer just outside of the 30 day window, thereby in compliance with rule 39.1 of the Dispute Resolution Practice Code (the “Code”), realistically, RBC would not be able to properly respond to the reports in the short time remaining before the commencement of the hearing.

I also decided that the expenses for this adjournment would be best addressed by the arbitrator dealing with the main issues in dispute. At the end of that hearing, the parties would then be able to submit a final accounting.

After I granted the adjournment, Ms. Chorney wrote requesting an opportunity to make written submissions for an award of expenses for the adjournment. I allowed this request, but advised that the Insurer should also have an opportunity to make submissions as to expenses. Timelines were then established for the written submissions.

I received the Applicant’s submission, together with a bill of costs on January 13, 2015. I also received a written submission from the Insurer dated January 27, 2015.

On March 19, 2015, I received a further letter from Ms. Chorney, advising that she had received nothing from RBC, and urged me to decide the expense issue in the absence of Insurer submissions. I wrote back to Ms. Chorney on March 20, 2015 advising that I had received RBC’s submission with RBC’s assurance that it had been served on the Applicant’s representative.

In any event, as Ms. Chorney had apparently not seen RBC’s response to her submission, I allowed Ms. Chorney an additional 2 weeks to reply to RBC’s submission.

On March 30, 2015, I received a letter from Ms. Chorney advising that she had received Mr. Bowman’s submission. This letter also contained her submission in reply to that of Mr. Bowman.

ANALYSIS

My jurisdiction to decide on expenses is set out in subsection 282(11) of the Insurance Act which states:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

Rule 75.2 of the Code sets out the criteria that an arbitrator must consider in awarding all or part of the expenses incurred in respect of arbitration. The only criterion relevant to this matter is a consideration of each party's degree of success in the outcome of the proceeding.

The Applicant has suggested that there was no basis to grant the adjournment. I disagree. Practice Note 9, Section C of the Code, sets out 3 circumstances where adjournments will be granted. One of the criteria is for valid reasons relating to the hearing itself, such as an imminent settlement or medical or other critical evidence that is unavoidably delayed.

RBC, having received critical medical evidence on the eve of the thirty day period as set out in the Code, required the adjournment to allow it to properly respond to the evidence.

Should I award expenses at this time?

Initially, in granting my decision to adjourn this hearing, I deferred the issue of expenses to the hearing arbitrator. On a motion such as this, in my view, time spent in preparation of witnesses, investigation, law, and other matters related to the hearing should be assessed by the hearing arbitrator after a full inquiry and explanation as to how that time was spent.

Any submission as to hours wasted in preparing witnesses or in additional time required to re-prepare witnesses and submissions can only be guesswork at this stage.

RBC has not requested its expenses related to its adjournment request.

Mr. Thompson is requesting that I order significant expenses on the basis that the adjournment request was not justified; that he had strictly complied with the timelines set out in the Code; and he has been put to considerable expense as a result of this adjournment.

I disagree with the Applicant. Clearly, he has complied with the timelines in set out in Rule 39.1.

However, serving these reports at the last possible time in order to have them admissible at the hearing created a situation where RBC’s ability to respond was severely prejudiced.

RBC was successful in obtaining the relief it requested.

Given RBC’s success and the fact that it has not requested its expenses, I find that each party should bear its own expenses with respect to the adjournment request.

July 24, 2015

Alan Mervin

Arbitrator

Date