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Arbitration Checklist
By Brian C. Atherton
Atherton Barristers
Receipt of Application for Arbitration
- Check for:
- Date Response Due
- Issues in dispute
- Date of Loss
- Whether bad faith or special damages claimed
- Whether DAC held
- Phone the client to acknowledge receipt of Application and file handling and to discuss overviews of file
Receipt of File Material
- Review all file contents carefully
- Consider issues, i.e., Limitation Periods, proper calculation of benefits, termination notices and whether it applies, bad faith allegations
- Review mediation material to determine re: are all issues in dispute mediated
- Check for items such as date of last payment, calculation of arrears to date, any offers made by either party
- Determine date to claim privilege
Medical Documentation
- Review carefully to obtain the following information:
- Treating physicians,
- References to doctors who have not provided reports,
- Other sources of medical information referred to but not produced, i.e. hospitals, emergency charts, ambulance call reports
- Assess strength of medical evidence to provide opinion
- Review DAC carefully to see if it has answered the questions posed, and whether the opinion can be substantiated by the findings
Investigation
- Ensure all surveillance tapes are submitted to your attention
- Assess written reports vs. surveillance file
- Do not be misled by investigator's descriptions of activities
- Compare your assessment of activities on videotape with IE's, DACS and plaintiff's reports
Entitlement to Benefits
- Reread Act and be familiar with tests under various pieces of legislation
- Compare all material in the file to determine if company has strong defence on termination
- Keep in mind FSCO's bias and credibility arguments
Quantum
- Check for the following:
- Employer's Confirmation of Income
- Tax Information
- Accounting Reports
- How benefit is calculated
- Is insured entitled to Income Benefit as opposed to "other" benefits, caregiver, etc.?
- Self employed: Familiarize yourself with case law on how to calculate income
- Note difference in various pieces of regulation on how to treat self-employed income
- Check to ensure source documents available or with an accountant
- If no accountant and self-employed must obtain source documents and obtain an accounting report
L.E.C. Issues
- Any Offer on file?
- What is status of insured, i.e., employed, self employed, recently employed, etc.
- Note test for these individuals
- What is basis of offer (i.e., F.C.E., Transferable Skills, etc.)?
Medical/Rehabilitation Issues
- Note test for entitlement at F.S.C.O., i.e., palliative relief is acceptable
- Compare that test with assessments by independent examiners and DAC
- Be familiar with case law on this issue and note difference in legislation as to entitlement
Post File Review
- Prepare a Response (if not done so on basis of information from company)
- Submit Response and file same with FSCO and arrange pre hearing
Opinion Letter to Company
- Outline facts and issues in dispute
- Highlight relevant medical, surveillance, or other information
- Assess strengths and weaknesses of case
- Provide opinion on Quantum and Settlement Value (if possible)
- Propose other areas of investigation, if required, i.e., further surveillance, additional medical examinations, production issues, etc.
Hearing Preparation
- Contact clients and advise of date and ensure they are in attendance by phone or in person
- Prepare a list of productions
- Make sure to request O.H.I.P. and Tax Returns in almost every case
Pre-Hearing
- Primary purpose is settlement
- Ensure client in attendance and have Settlement authority
- Be firm as to production request for company file material
- Be aware of case law on production issues
- Be aware of production requirements in Dispute Resolution Practice Code
- Discuss possibility of further examinations and obtain consent of other party to same
- If no consent be prepared to argue entitlement
- Be familiar with case law supporting further independent examinations
Post Pre-Hearing
- Follow up on productions
- Report to company if material causes revision in opinion
- Make arrangements for further surveillance and/or I.E.'s
- Be aware of time limits for production of material prior to hearing
Private Arbitrations
Priority Disputes
- Governed by Regulation 283/95
- Note time limits for service of Notice of Dispute, i.e., 90 days or one year
- Obtain consent of other counsel to appoint arbitrator or make application into Court
- Parties determine how arbitration will proceed
- Arrange Pre Hearing discussion with arbitrator and opposing counsel to discuss production issues as with F.S.C.O
- Need agreement to arbitrate to frame issues
- Be careful of how issues are framed
- Balance of procedures same as for F.S.C.O. hearings vis reporting and productions issues
- Note hearings probably more in keeping with Rules of Evidence than at F.S.C.O, depending upon arbitrator
Loss Transfer
- Governed by Section 275 and Regulation 664 s. (9) of Regulations
- Note Limitation Period of 6-years
- Similar procedure for Appointment of Arbitrator
- Liability issues more important
- Note if Fault Chart will/will not apply
- Note various case law (i.e., definition of heavy commercial vehicle, extra provincial insurers, etc.)
- Query: Snowmobiles and whether still covered by Loss Transfer
- Liability investigation is more important and focus should be in that area
- Balance of examination, and conduct of file is similar for F.S.C.O. or other private arbitrations
For more information on how we can assist you, please contact us
at Atherton Barristers at (416) 365-1030 or toll free at (866) 237-1030.
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