The new Dispute Resolution Practice Code, 4^th Edition, took effect on May 31, 2001.

The new rules of procedure apply to all cases, with the exception of arbitration cases where a pre-hearing was held before May 31, 2001.  In those cases, the old rules will apply unless the parties agree or an arbitrator  orders otherwise

Forms - Parties are required to use the new forms which have been issued with the code. There is a grace period, however, with old forms being accepted until June 29, 2001. 

The following is an overview of the rules that have been changed by the new code.  Readers should note that there is an emphasis on productions and that they must now be served 30 days before a hearing. Also, parties will be restricted to the use of two expert witness.

Rule 9 - Representation

Occasionally, cases have come before the Dispute Resolution Group, where applicants have had very little involvement with their case and are sometimes unaware that one has been initiated on their behalf. Rules  9.2 and 9.3 address this issue, requiring a party who appoints a representative to provide full authorization to that representative.  The Dispute Resolution Group may require written confirmation of this authority. 

A new rule, (Rule 9.3)  requires an officer of the insurance company to be available by telephone for the duration of the mediation, settlement discussion or other proceeding, where the insurer’s representative has limited authority to enter into an agreement or settlement.

Rule 9.9 (formally 63.6) gives an adjudicator the power to exclude representatives (other than lawyers), agents, or advisors or an advisor to a witness, if it is found that the person is not competent to properly represent or to advise the party or witness, or does not understand and comply with the Rules and the duties and responsibility of a representative, agent or advisor.

Rule 10 Party Under Disability

This section of the code sets out the procedural requirements where a party is a minor or mentally incapable.  The rule has been expanded to give the adjudicator additional powers in situations where parties exhibit signs of mental difficulty.  An adjudicator will now have the power to appoint a person to act on the party’s behalf, or where no one is available, to notify the Public Guardian and Trustee to request that appropriate steps are taken pursuant to the provisions of the Substitute Decisions Act, 1992.

Rule 12 Mediation

The wording in Rule 12.1, which deals with making an application for mediation, has changed slightly. The application can be made “where a claim has been denied or the prescribed time period for the insurer to respond to the claim has lapsed”.  Presumably, this will allow an applicant to commence a  mediation without being delayed by a late response from an insurer. 

The wording of Rule 12.3 has also been changed.  Previously, the Commission would notify the parties of concerns with respect to jurisdiction or deficiencies in the application.  This remains the same, but now the Dispute Resolution Group will also consider wether the application is frivolous, vexations or an abuse of process.

Rule 14 - Response to Application for Mediation

The new code emphasizes the early production of documents and attempts to have the parties establish the issues at an early stage.  This is evident in the changes to Rule 14, where the party responding to the application for mediation, must within 10 days, set out in the Response to an Application;

(a) a response to each issue raised in the Application;

(b) details of any additional issues which are to be mediated;

(c) a list of available documents to which the responding parties intends to refer in the mediation;

(d) a list of existing documents that the responding party wishes to obtain from other sources, including  the other party, which are required for the purpose of discussing settlement of the dispute;

Rule 17 - Participation In Mediation

Rule 17.2 states that appointing a representative does not relieve any party of the obligation to participate in the mediation and to provide instructions with respect to issues and settlement offers.  It is likely that the change in the wording of this rule is in response to the concern that some applicants have very little involvement with their cases.

Rule 19 - Time Limits for Mediation

Formerly, the rules provided that where the parties had agreed to extend the time limit for mediation they were to “inform” the mediator. Rule 19.3 now states that the parties in this situation are to “consult” with the mediator, which implies that an extension may not necessarily be granted. 

Rule 25 - Application for Arbitration

 

The new emphasis on productions is evident in this rule.  An application for arbitration is now to include:

                  25.1            ....

(b) an explanation why any document identified in the Report of Mediator as having been requested by the insurer, has not been provided to the insurer;

(c)  a list of other key documents in the applicant’s possession to which he or she intends to refer in the arbitration;

(d) a list of key documents the applicant intends to obtain from other sources, including those documents the applicant requests from the insurer, such as surveillance evidence;

 

As with Applications for Mediation, Applications for Arbitration will also be scrutinized at the outset as to whether they are frivolous, vexations or an abuse of process ( Rule 25.4).

Rule 27 - Response By Insurer

The new rules will require the Response by Insurer to contain additional information, namely:

                  27              ...

( ) an explanation why any document identified in the Report of Mediation as having been requested by the applicant has not been provided to the applicant;

(d)   a list of other key documents in the insurer’s possession to which it intends in arbitration, including surveillance evidence;

(e)   a list of key documents the insurer intends to obtain from other sources including those the insurer requests from the applicant; and

 

It is important to note that Rule 27.3 provides that where an insurer does not satisfy the jurisdictional concerns or deficiencies in its response, the Registrar or an arbitrator may reject the response and the arbitration will proceed on an uncontested basis.

 

Rule 33 -  Pre Hearing Discussion

 

The arbitrator will now be a more active participant in the pre hearing process, as are Masters in case managed cases in the courts.  The following sections of the rule illustrate the new role of the arbitrator:

33              ...

(c)  deciding any disputes relating to the identification and exchange of documents, making orders and setting time lines for the exchange of outstanding documents;

(d)  dealing with procedural and preliminary issues, and requests for interim relief or interim expenses;

(e)  identifying the expert and lay witnesses to be called at the hearing and determining the length of hearing;

...

(g) arranging the form in which document briefs or a joint book of documents  will be submitted to the hearing arbitrator.

Rule 34 Failure to Comply

This is a new section which gives the arbitrator the power to discipline the parties for failing to comply with time lines, orders or agreements.  Parties may be ordered to pay expenses, including interim expenses.  Documents may be excluded and a new timetable may be imposed upon the parties as well as any other “order as the arbitrator considers just”. 

Rule 39 Evidence

Productions will now be required to be served on the other party at least 30 days before the first day of the hearing, as opposed to the requirement in the old rules that the be filed 10 days before the hearing. 

Where a document has not been served in accordance with rules 39.1 and 39.2 it will not be admitted at the hearing unless there are extraordinary circumstances to justify an exception (Rule 39.3).

Rule 41 Witnesses

Witness lists must be exchanged 30 days before the first day of the hearing and witnesses must now be notified 30 days before the first day of the hearing.  This is in contrast to Rule 36 of the old code, where parties had until 10 days prior to the first day of the hearing to notify witnesses and exchange witness lists.  An arbitrator will now have the power to excuse a witness from the hearing,  if the witness was not identified at the pre hearing under Rule 33, or notified at least 30 days before the first day of hearing under Rule 41.2. 

Rule 42 Expert Witnesses

The timelines set out in Rules 39 and 41 also apply to expert witness.  Once again, an arbitrator will have the power to exclude a witness from the hearing if a party has not complied with the Rules. SIGNIFICANTLY, PARTIES MAY NOW CALL NO MORE THAN TWO EXPERT WITNESSES TO GIVE OPINION EVIDENCE AT A HEARING, UNLESS OTHERWISE ORDERED BY AN ARBITRATOR (RULE 42.4).

This section of the code remains relatively unchanged.  It has been streamlined, however, in that the provisions for a “Reply by the Appellant” (formerly Rule 50) has been omitted. 

Similarly, the former Rule 60, which allowed for a “Reply by Applicant” in an Application for a Variation/Revocation procedure has also been omitted.

RULE 68 - Dismissal Of Proceeding Without Hearing

This new rule gives an adjudicator the power to dismiss a proceeding where the proceeding “ is frivolous, vexatious or is commenced in bad faith”.  It is anticipated that if an arbitrator uses this section to dismiss a proceeding, there will be challenges to their jurisdiction.  It is likely that the burden of proof and the standard of proof will be issues as well.