Arbitrator Wilson's recent decision in Dabrowska and
Aviva Canada [FSCO A13-007793] is a warning to Insurers
attending Financial Services Commission of Ontario (FSCO)
pre-hearings – always have authority!
In this case, the parties attended a pre-hearing and had arrived
at a tentative settlement. Unfortunately, no one at Aviva was
available to approve the settlement even though the parties waited
"a significant time for anyone in authority to respond."
As a result, the pre-hearing was adjourned.
While Arbitrator Wilson recognized a settlement was voluntary,
he noted that the parties should attend a pre-hearing in a position
to have a meaningful and fulsome discussion about the file.
Further, the parties should be able to respond during the
pre-hearing discussion to developments or information. Arbitrator
Wilson concluded that in pre-hearings, time is of the essence and
it is important that the parties to litigation be in a position to
make decisions in real time. The failure to do so could result in a
missed opportunity with the matter proceeding to Arbitration by
Arbitrator Wilson noted that Aviva should have been aware of the
responsibilities as it was a sophisticated party at FSCO. Further,
he found that the Insurer's failure to have a party with the
requisite authority was considered an abuse of process. Arbitrator
Wilson concluded that an award of expenses was appropriate in the
While the award was not significant (less than $100.00 in part
because the Claimant's representative was not a lawyer), the
decision sends a message to Insurers that a representative should
always have proper authority when participating in a
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