https://www5.fsco.gov.on.ca/AD/5114
Mr. Finley also argued that other factors should be taken into account, namely the balance of convenience, because Hearing dates were already set at the Pre-Hearing when this Preliminary Issue Hearing was initiated. He suggested that the greater experience of FSCO Arbitrators over LAT Arbitrators, particularly with respect to complex disputes such as determination of catastrophic impairment, supported Mr. Mussa’s choice of the FSCO forum. He also stated that the Applicant’s preference for a decision bound by precedent and the potential for prejudice if the Applicant is required to have overlapping proceedings in two separate forums, warranted the choice of FSCO over LAT.
With respect, I do not agree that these factors are relevant in the question before me.
The Hearing dates have been set far enough in advance that there can be no argument for convenience this early in the process if those dates have to be changed. Due to the expedited timelines under the LAT process, Mr. Mussa might have a Hearing sooner if his dispute proceeds under LAT. I have no evidence that the relative expertise of Arbitrators in the forums is germane to the issue. Being bound by “precedent” also does not speak to his entitlement regarding either forum. Such entitlement flows from law, not from preference.
This is not a case of whether an issue should be added to an existing Application for Arbitration, which might possibly allow procedural fairness matters to be taken into account. This is a question of whether there is the right to initiate an Application for Arbitration under the old system, but without the statutory pre-conditions having been met, as a way to circumvent the unknowns of a new system that came into effect on April 1, 2016. The legislation did not provide a choice for new applications to be started in either the old or new systems, depending on preference or risk analysis of the system.
The only question is whether or not the necessary pre-conditions for Arbitration were met as of March 29, 2016 (the date of the Application for Arbitration).
In my view, they were not. The Act was clear on its face that a failed Mediation (deemed or otherwise) must exist before an Application for Arbitration could be filed.
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Therefore, I find that the Arbitrator spoke too broadly when he said that adding issues to an arbitration is different from commencing a proceeding. If the issue sought to be added does not necessarily arise from the issues already in dispute, then adding it is equivalent to commencing a proceeding. That is the problem with the issue of the treatment plan the Arbitrator added to the arbitration proceeding. It is a separate claim, unlike the claim for a catastrophic impairment designation where claims for ongoing benefits already exist. Beyond that, the treatment plan had been refused after the transition date, as noted above regarding the letter from Ms. Duong to ADR Chambers. Thus, the refusal of this claimed treatment plan occurred both after the Application for Mediation was filed and after the transition date of April 1, 2016.
In those circumstances, I fail to see how the issue of the treatment plan could be added to the arbitration proceeding.