So your insurer has decided to stop paying your accident benefits and you have gone through the mediation process, now what? Next you have the option of having a neutral evaluation, bringing a court action against your insurer or you can file for arbitration with the Financial Services Commission of Ontario (“FSCO”). What is Arbitration?
Arbitration is a less formal process dedicated to the adjudication of accident benefits disputes. It is similar to a court hearing but is faster and less expensive. An arbitrator in the Dispute Resolution Services (“DRS”) Branch of FSCO will hear evidence from both the claimant and the insurer and will then provide a written decision which is binding on all parties. It has the same authority as an order of a judge in court. The Dispute Resolution Practice Code governs arbitrations.
Arbitration must be commenced within two years after an accident benefit has been denied or within 90 days after the mediator issues the Report of Mediator, whichever is later. To start the process the insured must file two copies of the FSCO form, Application for Arbitration – Form C (“Application”), and pay the $100 filing fee. Along with the Application, the insured must also file a copy of the Mediator’s Report related to the issues to be arbitrated. DRS will send a copy of the Application to the insurer who then has twenty days to respond by serving and filing the FSCO form, Response by Insurer – Form E. The insurer must pay $3,000.00. If an extension of time to file is required, the parties must provide their consent to the arbitrator and the arbitrator may grant the extension. If any new issues are raised then the claimant may serve and file a Reply by the Applicant – Form G along with a Statement of Service – Form F.
Next, the DRS will schedule a pre-hearing conference which is conducted in person or by teleconference. The arbitrator assigned to the pre-hearing will help to settle the dispute(s). Unless agreed to by the parties, the pre-hearing arbitrator will not preside at the actual arbitration hearing to decide the case. You should be prepared at the pre-hearing as if you are ready to go to the arbitration hearing the next day, with the exception of serving the Summons to Witnesses. All documentation must be exchanged at least ten days before the pre-hearing discussion; however, to avoid a possible adjournment, allow thirty days.
To be ready for the pre-hearing, you should have served all reports and documentation that you intend to use at the arbitration. Have a list of witnesses ready that you will be calling and a list of witnesses that you want to cross-examine. A joint document brief may be used at the arbitration. It would be helpful to provide defence counsel with a proposed draft index for a joint document brief. The joint document brief can also contain all expert reports. Requests for productions can also be confirmed at the pre-hearing.
The goal at the pre-hearing is to attempt to settle all issues in dispute; however, if that does not happen, the dates and location of the arbitration will be decided. In addition, witness lists will be exchanged, outstanding productions will be requested, and you will advise the arbitrator on how you are going to proceed (ie: advise if there will be an interim benefits motion or any preliminary issue to be determined).
If need be, a second pre-hearing discussion may be held before the actual arbitration hearing. An arbitrator may assist with identifying and obtaining an agreement on the issues for arbitration, settle disputes relating to identification and exchange of documents and decide how a joint book of documents will be submitted for the arbitration hearing.
After the pre-hearing be sure to send any completed Summons to Witness forms to FSCO to be issued and serve the summonses on all witnesses thirty days prior to the arbitration hearing. No party may call more than two experts to give evidence unless ordered by the arbitrator. Witnesses are paid for their attendance at the arbitration and the maximum amounts awarded are in accordance with Rule 58.05 of the Rules of Civil Procedure as a disbursement. An expert witness is paid at the rate of $200.00 per hour of attendance to a maximum of $1,600.00 per day. A maximum of $500.00 is paid to an expert witness for preparing for a hearing and a maximum of $1,500.00 to prepare a report.
The actual arbitration hearing will be at the FSCO offices, at a hotel board room near the claimant’s home or at a court reporting service. The parties sit around a table with a court reporter and the arbitrator. Opening matters will be dealt with first, followed by submissions of the parties and then the insurer will present its case. Witnesses are sworn in and all documents used at the hearing will be marked as exhibits.
A typical oral hearing will last three days and the arbitration order is released within sixty to eighty-five days after the arbitration. However, if the issue is denied physiotherapy or chiropractic treatment, this would likely be an uncomplicated dispute and would not take as many hours to be heard.
Have a cost outline prepared and served prior to the hearing so you can make submissions on costs at the conclusion of the hearing. Also have the interest and any special award calculations served in advance so that the arbitrator can address this right away rather than a further attendance on another day.
After deciding the case, the arbitrator has the power to order the claimant to pay all or part of the insurer’s arbitration expenses, order the insurer to pay all or part of the claimant’s expenses, or order no expenses, leaving it to each party to pay their own expenses. This is explained in Section F Expenses regulation of the Dispute Resolution Practice Code.
After the Order and Decision has been issued by the arbitrator, each party has thirty days to appeal the decision to the FSCO Appeal Board. Any appeals from the FSCO Appeal Board are directed to the Divisional Court, then the Court of Appeal and then the Supreme Court of Canada. The standard of review for any appeals to an Ontario Court or beyond will be based on reasonableness, meaning the Courts will typically defer to the arbitrators at FSCO unless there was an unsupported and unreasonable decision.
Nicholson Gluckstein Lawyers