Ottawa Personal Injury Lawyers David Hollingsworth
A common question I am often asked as a personal injury lawyer is : What is an arbitration? An arbitration is a stage in a personal injury insurance claim. An arbitration is similar to a court hearing; however it is a lot faster and less expensive. In an arbitration, an arbitrator is chosen and listens to all the evidence from both the lawyer representing the injured, as well as the lawyer for the insurance company. The arbitrator listens to all the facts and evidence and then provides a written decision which is binding on all parties. Similar to what a judge might do, the arbitrator makes an unbiased opinion based on the facts of the personal injury lawsuit.
In Ontario, an arbitration in a personal injury lawsuit must commence within 2 years following an accident benefits claim being denied or within 90 days after a mediator issues the Report of Mediator, whichever is later.
How do you start? If your accident benefits are being denied by your insurance company, your personal injury lawyer can assist by filing copies of the Application for Arbitration. Most personal injury lawyers take cases on a contingency arrangement and will cover the associated costs along the way. This includes the fee for filing an application for arbitration. You can file this form yourself, if you so desire. Along with the Application, a copy of the Mediator’s Report must also be included. The application is then sent to the insurance company and then they have twenty days to respond by serving and filing a response by Insurer form to the Financial Services Commission of Ontario.
Once the required forms have been filed, a pre-hearing conference will be scheduled. Your personal injury lawyer will take care of all of this for you. Typically, most pre-hearing conferences are done in person or by telephone. The arbitrator is assigned to the pre-hearing and works towards helping settling the case for both parties. Typically, the pre-hearing arbitrator will not be the same arbitrator at the actual arbitration who decides the case. At the pre-hearing, all reports and documentation must be shared and filed with both parties. Your personal injury lawyer will prepare the documents and make sure they are delivered within the prescribed timelines. Your personal injury lawyer will also have a prepared list of witnesses you will be relying on for evidence, as well as your personal injury lawyer will have time to prepare to cross-examine the witnesses for the insurance company. Do not be nervous about being a witness. Your personal injury lawyer will help you be prepared for this. It is perfectly normal to be nervous but all you have to remember is be truthful and honest. Both sides want a good resolution and want the case to settle in a manner which is fair. If the pre-hearing is unsuccessful and a settlement is not reached, your personal injury lawyer will proceed with an arbitration.
At times, in order to advance a case, a second pre-hearing discussion can be held prior to the arbitration date. If it still does not settle, it is time to advance to the arbitration stage. Your personal injury lawyer will be responsible for submitting the appropriate documents to the Financial Services Commissions of Ontario (FSCO). All witnesses are summoned 30 days before the arbitration hearing, this includes expert witnesses for both parties. Witnesses are paid for attending the arbitration and the maximum amounts awarded are in accordance with the Rules of Civil Procedure. These are considered to be disbursement costs and are typically covered by your personal injury lawyer until your case is resolved (as most personal injury lawyers take cases on a contingency fee basis). An expert witness is paid a rate of anywhere typically ranging from $200.00 per hour with a maximum of $1,600.00 per day. They are also paid to prepare reports. These reports can range anywhere from $500.00 to thousands of dollars. Again, these are not expenses that you will be required to pay for upfront. These will either be covered by the insurance company or your personal injury lawyer.
Once it comes time for the arbitration, both parties meet at an agreed upon place. Attendees typically include the insured and their personal injury lawyer, the insurance company’s lawyer, witnesses, a court reporter and the arbitrator. Opening submissions are made, both sides present their case, witnesses are sworn in, heard and examined and all documents are put forth as exhibits. Most arbitrations last approximately 3 days. This may seem long but it is important that the arbitrator learns the facts of the personal injury claim and all relevant information is presented by both parties. After this the arbitrator will prepare an Order and issue a Decision. The decision is sent to both parties and they then have 30 days to appeal the arbitrator’s decision. If the decision is appealed, the Financial Services Board of Ontario (FSCO) must be notified within the 30 day timeframe.
The appeal would then move to the Divisional Court level, followed by the Court of Appeal and if it is still appealed, finally the Supreme Court of Canada. Most personal injury cases never make it to these levels and settle before arbitration. There is however a system in place in case they do not settle.
Regardless of what stage you are at in a personal injury lawsuit, your personal injury lawyer can walk you through every step. If you have any questions that relate to a personal injury lawsuit in Ontario or need clarification regarding insurance claims in Ontario, contact us free of charge.