FSCO arbitrator holds firm to 60-day timeframe for mediation

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that follows in the footsteps of the Ontario Superior Court, finding that a 60-day mediation timeframe is firm, despite a backlog of cases.

In Nicholas Leone and State Farm Mutual Automobile Insurance Company, FSCO arbitrator Jeffrey Rogers concluded that the province’s mandated, 60-day timeframe for mediation to occur is firm, and the clock still ticks even if there is a delay between when FSCO receives an application for mediation and when the director appoints a mediator. The decision is in step with the recent court decision in Cornie v Security National.

Leone was injured in a motor vehicle accident on Sept. 11, 2009. He applied for and received statutory accident benefits from State Farm. Disputes arose over his entitlement to certain further benefits.

FSCO received Leone’s application for mediation on Sept. 28, 2010, and within two days FSCO had acknowledged its receipt of the application. On Mar. 14, 2011, 169 days after FSCO acknowledged receiving the application for mediation, Leone filed an application for arbitration.

“There is no merit to State Farm’s submission that the application is not filed until a mediator is appointed,” Rogers wrote in his decision. “The definition of ‘file’ does not suggest that interpretation.

“Since the prescribed time for mediation had expired when Mr. Leone filed his application for arbitration, there was no jurisdictional barrier to his doing so. This conclusion is consistent with the scheme and intent of the [Insurance] Act, the [Statutory Accident Benefits] Schedule and the rules as they aim to promote prompt payment of benefits and speedy dispute resolution.

“The legislation and the rules are all replete with fixed time limits intended to serve this purpose. Accepting State Farm’s position would mean that there is no fixed time for completing mediation. That would render meaningless the requirement in the act and the rules for the prompt appointment of a mediator.”