What is an arbitration and how can one prepare?
If you are involved in a personal injury lawsuit and are trying to reach a settlement with your insurance company you may end up at the arbitration stage. Arbitration at the Financial Services Commission of Ontario (FSCO) is a bit of a last resort when the insurance company and the insured cannot come to an agreement. It is less formal than going to court but one step further than a mediation at the Financial Services Commission of Ontario (FSCO). Before an arbitration, a mediation involving both parties will have taken place and will have failed. Only the insured can apply to have the dispute go to arbitration. Insurance companies cannot make this request.
Are there time limits involved?
Yes, if mediation fails and the insured decides to apply for arbitration, the application must be made within TWO YEARS after the insurance company denies the insured the accident benefits claimed, or within 90 DAYS after the mediator gives a ” Report of Mediator,” whichever is later. It is crucial to follow these time limits as you don’t want to be denied what you may be entitled to.
Do you need a personal injury lawyer?
No, you do not need a lawyer for dispute resolution at FSCO; however, we strongly recommend you use one. Oftentimes, a personal injury case becomes complicated and insurance companies are represented by lawyers. It is best to have an experienced lawyer on your side. Our lawyers know the ins and outs of an FSCO arbitration and will be able to steer the arbitration in the right direction.
How do you apply for an FSCO arbitration?
Your lawyer will counsel you on whether or not applying for an FSCO arbitration is wise or not. If it’s in your best interest, your lawyer can apply on your behalf by sending the appropriate, completed forms (Application for Arbitration – Form C) as well as any related reports such as the Report of Mediator. There is also a fee for applying; however, in most cases, your lawyer will cover this cost as part of a contingency arrangement. The request is then sent to the insurance company and within 20 days, the insurance company must send you (or your lawyer) and FSCO a completed Response by the Insurer to Application for Arbitration. There are again fees associated with this response. There will also be other costs in preparing for an arbitration such as medical reports, expert reports etc. Again, depending on what arrangement you entered into with your lawyer, these fees are typically covered by your lawyer as part of the contingency fee arrangement.
What is an arbitration pre-hearing conference?
Given that the goal is to reach a resolution, a pre-hearing conference is scheduled before the arbitration. This pre-hearing can be done in person or by telephone conference. The pre-hearing arbitrator will schedule a hearing date and try to help both parties resolve the dispute and prepare for the arbitration.
What happens at the arbitration?
If there is still no resolution, then the arbitration will take place at FSCO or at an agreed-upon location. The arbitration hearing itself is somewhat like a court hearing; however less formal. The arbitrator listens to both sides present the facts of the case, reflects on the findings and then provides a written decision backed up with reasons for the decision, based on the evidence and Ontario law. At this stage, the arbitrator may decide who is paying for which expenses. He/she may decide to have the insurance company for the expenses, the insured pay the insurance company’s expenses or decide that each party pays their own expenses. The arbitrator can take many things into consideration when deciding about fees. He or she will evaluate the overall arbitration and look to see which side made offers and how each side conducted themselves in the arbitration.
What happens after an arbitration?
If either party is not satisfied with the arbitrator’s findings, they can appeal an arbitrator’s order on a question of law within 30 days of the decision. It is best that you discuss with your lawyer whether or not to appeal the order. Experienced personal injury lawyers will have insight on what is your best move at this step.
If you are proceeding on your own and wish to consult with one of our lawyers, we would be happy to answer any questions for you free of charge. We have decades of experience in personal injury and are here to help. Feel free to contact us with any questions.
