INTRODUCTION

The Dispute Resolution Practice Code ("Code") is a user's guide to resolving disputes between consumers and insurers involving statutory accident benefits claims under the Insurance Act and the Statutory Accident Benefits Schedule ("SABS").

The Code is published by the Dispute Resolution Group of the Financial Services Commission of Ontario ("FSCO" or the "Commission"). Although there have been previous editions of the Code, this edition is the first published by the Dispute Resolution Group as part of FSCO.

FSCO is responsible for regulating the insurance sector as well as other financial service sectors in Ontario, namely, pensions, credit unions and caisses populaires, cooperatives, mortgage brokers and the loan and trust sectors. It is an arm's-length agency of the Ministry of Finance. FSCO provides regulatory and direct services that protect the public interest and enhance public confidence in the regulated sectors.

FSCO was established on July 1, 1998, under the Financial Services Commission of Ontario Act, 1997. It amalgamated the operations of the former Ontario Insurance Commission, the Pension Commission of Ontario and the Deposit Institutions Division of the Ministry of Finance.

The Code creates rules for timely, cost-effective and fair dispute resolution services provided through FSCO's Dispute Resolution Group. The rules of procedure in this Code apply to new applications as well as cases already in progress. The rules have been made after extensive consultations with users of the dispute resolution system.

THE SERVICES OF THE DISPUTE RESOLUTION GROUP

The Dispute Resolution Group at the Commission provides mediation, neutral evaluation and arbitration services. There is also a process for appealing arbitration orders on a question of law, and a process for varying or revoking orders.

If consumers and insurers are unable to resolve disputes about statutory accident benefits, the first step in the dispute resolution process is mediation. Mediation of such disputes is mandatory in Ontario and must be conducted through the Commission before the dispute can proceed to arbitration or court. The insured person is charged no fee for mediation. However, each party must pay for its own expenses, which may include lawyer's fees, travelling expenses, accounting services, and additional medical reports.

Mediation is an informal process in which a mediator helps parties involved in a dispute to clarify issues and find solutions that lead to a satisfactory outcome. The Mediation Unit of the Dispute Resolution Group has established a successful record in mediation, achieving full or partial success in over 75 percent of mediations. In December 1998, the Unit was awarded the prestigious Amethyst Award for outstanding achievement by the Ontario Public Service.

If the dispute remains unresolved after mediation at the Commission, the insured person has a number of choices. He or she can continue to negotiate directly with the insurance company. Alternatively, the insured person can opt for arbitration at the Commission, private arbitration, private neutral evaluation or a court action. Each option has its own rules, and the insured person may not be able to switch from one system to another. For example, once an action has been commenced in court, the insured person may not be able to switch to arbitration at the Commission, or vice versa.

ABOUT THIS CODE

This Code will help the parties move through the Commission’s dispute resolution process. It explains what is required of everyone involved and sets out rules for such matters as the filing of documents, time limits and payment of fees and expenses. Of particular importance are the rights and responsibilities of insurers and claimants when dealing with statutory accident benefits claims. These rights and responsibilities are outlined in Guidelines B 2-1 and B 3-1, which may be found in Section B of the Code.

It is important to note that the specific types of benefits, amounts, and eligibility requirements for benefits, will differ depending on when the motor vehicle accident took place.

These rules DO NOT apply if the accident occurred on or before June 21, 1990.

If any provision of the Code is found to be contrary to the Insurance Act or any other law, then that law will prevail.

HOW THIS CODE IS ORGANIZED

The Code has been divided into 7 sections.

Section A, the Rules of Procedure, consists of General Rules for Dispute Resolution at the Commission: Mediation, Arbitration, Neutral Evaluation, Appeal of an Arbitration Order, Variation or Revocation of an Order, as well as General Procedures for Hearings.

Section B contains Guidelines issued by the Superintendent of Financial Services and the former Commissioner of the Ontario Insurance Commission on the interpretation and operation of the SABS.1

Section C contains Practice Notes, which are issued by the Dispute Resolution Group to explain key elements of the dispute resolution process.

Section D sets out the applicable fees and assessments during the process.

Sections E and F contain the regulations on settlements and expenses, respectively.

Section G has copies of all the required forms.

For general information on mediation, neutral evaluation, arbitration, appeal, and variation/revocation, see "Some Answers to Frequently Asked Questions [FAQS] by Claimants", which may be found in this Introduction section.

The Code is designed to fit a 1 1/2-inch or 2 1/2-inch round ring binder with a clear insert sleeve on the front and spine of the binder. The pages have been three-hole punched to allow for easy insertion of updates. These updates will be issued periodically as the need arises.

1This section includes guidelines issued by the Financial Services Commission of Ontario's (FSCO) predecessor, the Ontario Insurance Commission, as well as FSCO, and may make reference to the Ontario Insurance Commission and/or the Commissioner. Where reference is made to the Ontario Insurance Commission and/or Commissioner, these should be read as Financial Services Commissioner of Ontario and/or Superintendent.

WHERE TO OBTAIN ADDITIONAL COPIES OF THIS CODE, DISPUTE RESOLUTION FORMS, AND DECISIONS ISSUED BY THE DISPUTRE RESOLUTION GROUP

Additional copies of the Code and updates may be purchased from:

Publications Ontario
880 Bay Street
Toronto ON M7A 1N8
Phone: (416) 326-5300
1-800-668-9938 (toll-free)

Other outlets interested in selling the Code should contact the Director of Arbitrations at the address for the Dispute Resolution Group set out below.

The complete Code, as well as an updated list of all outlets selling the Code, is maintained on the FSCO website at www.fsco.gov.on.ca. The Code can also be found at major public libraries, and in legal publications which report the decisions of the Dispute Resolution Group.

The complete text of decisions issued by the Arbitration and Appeals Units of the Commission are posted on FSCO's website at www.fsco.gov.on.ca. Access to the decisions is a secure site. To obtain a password, please contact the Dispute Resolution Hotline at phone number (416) 590-7202 or 1-800-517-2332 (toll-free), ext. 7202.

Summaries and commentaries of decisions issued by the Arbitration and Appeal Units of the Dispute Resolution Group are published in the legal publications and computer services listed below. Please contact the provider directly to determine any cost associated with the use of these legal summaries or computer services.

Financial Services Commission of Ontario (Motor Vehicle Insurance) Law & Practice,
James M. Flaherty and Catherine H. Zingg, eds. (Canada Law Book Inc., Aug. 2001)
Canada Law Book Inc.
240 Edward Street
Aurora ON L4G 3S9
Fax: (905) 841-5085
Sales Only (Toll Free): 1-800-263-3269 or 1-800-263-2037
Case Law on Call: 1-800-565-6967

The Annotated Insurance Act of Ontario
Prof. John P. Weir (Toronto, Ont., Carswell, 3 volumes looseleaf)
One Corporate Plaza
2075 Kennedy Road
Toronto ON M1T 3V4
Phone: (416) 298-5141 (ext. 2123)
E-mail: carol.mackay@carswell.com

Ontario Accident Benefits Case Summaries,
Eric K. Grossman, ed. (CCH Canadian Ltd., 1999)
90 Sheppard Avenue East, Suite 300
Toronto ON M2N 6X1
Fax: (416) 224-2243;
Phone: (416) 224-2224; 1-800-461-5308, 1-800-461-4131
For outside Toronto, phone 1-800-387-5164

QUICKLAW Computer Reporting Services,
1 First Canadian Place, Suite 930
Box 235
Toronto ON M5X 1C8
Fax: (416) 862-8073
Phone: (416) 862-7656
For outside Toronto, phone 1-800-387-0899

An Application for mediation, arbitration, appeal or variation/revocation may be obtained from your insurance company. If you are having difficulty obtaining a form, you may download a single copy from Section G of the Code posted on FSCO's website at www.fsco.gov.on.ca or you may write or telephone the Dispute Resolution Group to have a single copy sent to you, as noted below. The mailing address for all forms is:

Financial Services Commission of Ontario
Dispute Resolution Group
5160 Yonge Street, P.O. Box 85
Toronto ON M2N 6L9

Please specify whether you are seeking a mediation, arbitration or appeal form.

Or, telephone or fax your request for an application pertaining to:

Mediation:
Phone: (416) 590-7210
1-800-517-2332 (toll-free), ext. 7210
Fax: (416) 590-7077

Arbitration or Neutral Evaluation:
Phone: (416) 590-7202
1-800-517-2332 (toll-free), ext. 7202
Fax: (416) 590-8462

Appeal, Variation or Revocation:
Phone: (416) 590-7222
1-800-517-2332 (toll-free), ext. 7222
Fax: (416) 590-7077

Bulk orders of forms are available from printers such as:

Informco Inc.
35 Bertrand Avenue
Scarborough ON M1L 2P3
Phone: (416) 285-1700

Proprint Forms
5621 Finch Avenue East, Unit 5
Scarborough ON M1B 2T9
Phone: (416) 754-3028

SOME ANSWERS TO FREQUENTLY ASKED QUESTIONS [FAQS] BY CLAIMANTS

What disputes can be brought to the Dispute Resolution Group at the Commission?

Our services help resolve disputes about whether or not you qualify for benefits under the Statutory Accident Benefits Schedule (SABS), and how much those benefits should be. You may use the services of the Dispute Resolution Group if an accident benefit has been claimed from your insurance company, and denied. The SABS deal only with injuries arising out of motor vehicle accidents that occurred on or after June 22, 1990.

We do not handle disputes between two or more insurers over which insurer is responsible for the payment of statutory accident benefits. These disputes must be referred to private arbitration under the Arbitration Act, 1991. See Practice Note 10 "Process for Settling Disputes Between Auto Insurance Companies", under Section C of the Code.

How do I start the dispute resolution process?

The first step is mediation. You must send a completed Application for Mediation (FORM A) to the Dispute Resolution Group. (See Part 2 of the Rules – Mediation.)

MEDIATION

What is mediation?

Mediation is an informal process in which a neutral third party (the mediator) helps the parties resolve the issues in dispute. Mediators work with the parties to find acceptable solutions. They help clarify the issues and explore options that can lead to a satisfactory outcome. Mediators don’t take sides and they don’t have the power to impose decisions. Our statistics indicate that most disputes are settled at mediation.

How much will it cost?

There is no cost to the insured person for mediation. However, you must pay for your own expenses, such as lawyer's fees, travelling expenses, accounting services, and additional medical reports.

In what languages are mediation services provided?

Mediation services are available in both English and French. French language services are provided at the request of the applicant. Interpretation services in other languages must be arranged by the party requiring them. The party arranging the service must pay the cost.

Do I need a lawyer?

Although a lawyer is not required in mediation, many people feel more comfortable having a lawyer help them with the process.

Should I be there?

Yes. Mediation can be conducted either in person or on the telephone (usually by conference call). You have a responsibility to personally participate in the mediation process, even if you have a representative. If for some extraordinary reason you cann ot participate, your representative must have full authority to enter into an agreement or settlement at mediation on your behalf. If your representative does not have this authority, your mediation may be delayed.

How long will it take?

The Insurance Act states that all mediations must be concluded within 60 days. In some cases this limit can be extended on written consent of all the parties.

What documents will I need?

You should try to provide copies of the best available documentation about your case.

For medical disputes, this can include such things as doctor's reports, hospital reports, and physiotherapy reports. If your dispute is about the amount of your income, such things as tax returns, financial statements and bank records can be helpful. See Practice Note 4 "Exchange of Documents" under Section C of the Code.

Each party may ask the other for relevant documentation. If you fail to produce requested documents that the mediator considers necessary for settlement discussions, this will be noted in the mediator's report.

What if my dispute is not resolved in mediation?

If some issues remain unresolved at the end of the mediation, you have a number of choices. You may continue to negotiate with your insurance company directly. Alternatively, you can opt for arbitration at the Commission, private arbitration, neutral
evaluation or court action.

What is a Designated Assessment Centre?

Designated Assessment Centres, or DACs, are health care service providers or facilities appointed under the authority of the SABS to provide independent assessments of persons injured in automobile accidents in Ontario. DACs provide a mechanism to assist in the early resolution of disputes between claimants and insurance companies through the provision of neutral, objective, expert opinions on medical issues. You may be required to attend a DAC if your accident occurred on or after January 1, 1994. If you fail to attend without reasonable excuse, you may not be permitted to go to mediation or arbitration. See Practice Note 1 "Using Medical Evidence To Support Your Claim for Accident Benefits" under Section C of the Code. See also Practice Note 12 "What Claimants Need to Know about Designated Assessment Centres" under Section C of the Code. Additional information about DACs and the guidelines they must follow can be found on FSCO's website at www.fsco.gov.on.ca

NEUTRAL EVALUATION

What is neutral evaluation?

Neutral evaluation is a process where a neutral third party (the neutral evaluator) provides the parties with an assessment of the issues in dispute, as well as an opinion on the likely results if the dispute were to proceed to arbitration at the Commis
sion or to court. This assessment is intended to help the parties settle their dispute at an early stage.

How do I obtain neutral evaluation?

Neutral evaluation is offered either privately or as part of the arbitration process at the Commission. You and your insurer may agree to refer your dispute to a private (non-Commission) neutral evaluator. The mediator may also make a referral to private neutral evaluation. See Practice Note 5 "Mediator Referral to Private Neutral Evaluation" under Section C of the Code. Upon the written request of the parties, the Director of Arbitrations will appoint a person selected by the parties to conduct a private neutral evaluation.

If you want neutral evaluation at the Commission, you must file for arbitration and both parties must agree to neutral evaluation. See Practice Note 6 "Neutral Evaluation at the Financial Services Commission of Ontario" under Section C of the Code.

How much will it cost?

Private evaluators set their own rates. The Commission is not responsible for the costs of private neutral evaluation and the terms of payment and cost must be negotiated between the parties and the selected evaluator.

Although there is no additional charge to the insured person for neutral evaluation conducted at the Commission, the insured person must pay the $100 filing fee for arbitration.

What if my dispute is not resolved through neutral evaluation?

If you participated in private neutral evaluation, and the Report of the Neutral Evaluator has been issued, you may choose arbitration at the Commission, private arbitration under the Arbitration Act, or court. If you completed neutral evaluation at the Commission, and all the issues did not settle, your file will normally be fast-tracked directly to an arbitration hearing, without the necessity of a pre-hearing discussion.

ARBITRATION AT THE COMMISSION'S DISPUTE RESOLUTION GROUP

What is arbitration?

Arbitration is a decision making process, similar to court. The advantages of arbitration over the court process are that it is quicker, less expensive and less formal. The arbitrator will listen to the witnesses called by each side, review all the evidence filed at the hearing and make an order that is binding on both sides.

Who can apply for arbitration?

Only the insured person may apply for arbitration; the insurance company does not have this right. You may not apply for arbitration unless you have first gone to mediation with your dispute.

How do I apply for arbitration?

You must complete an Application for Arbitration (FORM C) and send it to the Dispute Resolution Group, together with your $100 filing fee.

How much will it cost?

Over and above the $100 filing fee, you will also be responsible for your own expenses, such as witness fees, travelling and legal expenses, accounting services, additional medical reports and experts' fees. An arbitrator may award the expenses of a proceeding to either the insured person or the insurer. In awarding expenses to either party, the arbitrator will consider the factors described in Rules 75 and 76 and under the Expense Regulation found in Section F of the Code.

In some cases the insured person may recover some or all of the expenses of the arbitration from the insurer, if the arbitrator so orders. Expenses awarded by the arbitrator are recoverable only up to the maximums set out in this Code under Rule 78 and under Section F Schedule to the Expense Regulation. Legal fees are only recoverable at the rates set out in this Code under Rule 78. If your lawyer or agent charges more than these rates, you will be responsible to pay your lawyer directly for any additional amount.

In certain cases, the arbitrator may award the insurance company a portion of its expenses which the insured person will be responsible for paying. See Rule 75 and the Expense Regulation found in Section F of the Code.

As well, if the arbitrator concludes that your claim was frivolous, fraudulent, vexatious or an abuse of process you may be ordered to pay an additional amount up to the amount of the assessment the insurance company has paid. See
Fees and Assessments found in Section D of the Code.

In what languages are arbitration services provided?

Arbitration hearings may be held in English or French. French language services are provided at the request of the applicant. Interpretation services in other languages may also be provided by the Dispute Resolution Group, as requested by the applicant and required by the arbitrator. The Dispute Resolution Group will pay the cost of interpretation services required at the hearing.

Do I need a lawyer?

A lawyer is not required for arbitration, but many people are represented. Insurance companies are nearly always represented by lawyers at arbitration. You are encouraged to at least consult a lawyer.

What documents are required?

As in mediation, you should have independent documentation about your claim. You and the insurance company should have already exchanged the relevant documents prior to attending a pre-hearing conference. These documents must ultimately be provided to the arbitrator at the pre-hearing and hearing. If necessary, an arbitrator at the pre-hearing may order the production of other important documents. It is in the best interests of both parties to comply with an order for production in a timely manner. See Practice Note 4 "Exchange of Documents", under Section C of the Code.

Should I be present at the arbitration hearing?

Yes. Arbitration hearings are usually held in person at the Commission's offices in Toronto or at locations throughout Ontario. Sometimes the parties can agree to waive an oral hearing and the arbitrator's decision will be based on the documents and written submissions filed.

How long will the arbitration hearing take?

The length of the arbitration process will vary depending on the nature and complexity of the case. The average length of an oral hearing at the Dispute Resolution Group is between two and three days.

APPEAL, VARIATION/REVOCATION

What should I do if I think the arbitrator's decision is wrong?

If you think that an arbitrator's decision is wrong, two possible procedures are available. First, you can appeal the decision, but only where the arbitrator made an error of law. You will not be allowed to appeal simply because you think the arbitrator should have accepted your evidence instead of the other party's.

A Notice of Appeal (FORM I) must be filed within 30 days of the date of the arbitration decision. The filing fee is $250. Appeals are decided by the Director of Arbitrations or a delegate (Director's Delegate).

The second option is an Application for Variation/Revocation (FORM L). This process is appropriate where the insured person's situation has changed since the arbitration hearing, where new evidence has become available that was not available for the arbitration hearing, or where there is some clear error in the arbitration decision. The filing fee for an Application for Variation/Revocation is $250.

How do I find a lawyer?

The Law Society of Upper Canada offers a lawyer referral service. For more information, phone 1-900-565-4577 ($6.00 fee is charged), and check the Law Society's website at: www.lsuc.on.ca, and choose option "Public Legal Information".

USER ADVISORY GROUPS TO THE DISPUTE RESOLUTION GROUP

The Dispute Resolution Group is fortunate to have two user advisory groups who meet with members of the Dispute Resolution Group's senior management at regularly scheduled meetings throughout the year. The Bar-Dispute Resolution Group Forum ("Counsel Forum") is comprised of lawyers and other representatives who regularly appear on behalf of claimants or insurers within the dispute resolution system. The other group, Companies Forum, is comprised of ADR representatives and claims people from most of the major automobile insurers in Ontario. The members of Companies Forum regularly handle disputed accident benefit claims within our system.

These user groups meet regularly and provide valuable insight and suggestions to the Dispute Resolution Group to ensure that it continues to provide just, flexible, cost effective and efficient dispute resolution services. Further information concerning meeting dates and the minutes of these two advisory groups is available through the FSCO website at www.fsco.gov.on.ca

GENERAL INFORMATION CONCERNING THE TIME LINES FOR THE SERVICES OF THE DISPUTE RESOLUTION GROUP

1. An insured person or an insurer may apply for mediation of a dispute about an insured person’s entitlement to accident benefits where a claim has been denied by the insurer or the time period for the insurer to respond to the claim has elapsed (Rule 12.1).
   
   
2. An Application for Mediation in FORM A must be filed with the Dispute Resolution Group no later than 2 years from the date the insurer provided written notice of a refusal to pay the amount claimed (Rule 11).
   
   
3. An Application for Mediation in FORM A, completed in accordance with the requirements of Rule 12.2, will be registered and assigned to a mediator within 3 weeks of its receipt.
   
   
4. Mediation will be concluded within 60 days of the registration of the completed Application for Mediation (Rule 19).
   
   
5. A Report of Mediator (Rule 22) will be issued within 7 business days of the conclusion of mediation.
   
   
6. An Application for Arbitration in FORM C must be filed with the Dispute Resolution Group no later than 2 years from the date the insurer provided written notice of a refusal to pay an amount claimed. However, an insured person may file a completed Application for Arbitration within 90 days after the mediator reports to the parties in the Report of Mediator (Rule 11).
   
   
7. An Application for Arbitration in FORM C will be registered and assigned to an arbitration case administrator within 5 business days of receipt of an Application completed in accordance with Rule 25.1.
   
   
8. Dates for holding an arbitration pre-hearing discussion (Rule 33) will be available to the parties within 6 to 8 weeks from the registration of a completed Application for Arbitration.
   
   
9. Dates for holding an oral arbitration hearing will be available to the parties within 4 to 6 months from the conclusion of the pre-hearing discussion.
   
   
10. An oral arbitration hearing is generally concluded within 3 days.
    
    
11. An arbitration order from an oral hearing will be issued within 60 to 85 days from the conclusion of the oral hearing.
    
    
12. A written arbitration hearing is generally concluded within a 60 day period (Rule 38).
    
    
13. An arbitration order from a written hearing will be issued on the later of:
    
    (a) 60 days after the last day on which the insured person is entitled to file a Reply by the Applicant for Arbitration;
    
    (b) 30 days after the last day on which the parties are required to file additional materials or written submissions (Rule 38).
    
    
14. A Notice of Appeal in FORM I on a question of law, must be filed within 30 days of the date of the arbitration order being appealed (Rule 52).
    
    
15. A decision in the appeal will be issued within 60 to 85 days from the conclusion of the oral or written appeal hearing.
    
    
16. A request for an Assessment of Expenses must be made within 30 days from the date the order of the arbitrator was issued (Rule 79).
    
    
17. An order on an Assessment of Expenses will be issued within 60 to 85 days from the conclusion of the oral or written hearing on expenses.

HOW DO I GET INFORMATION?

More detailed information is available through the Dispute Resolution Group's recorded telephone information service at (416) 250-6714 or toll free at 1-800-517-2332 or FSCO's website at www.fsco.gov.on.ca