Siamak Shalchi-Amirkhiz v. Belair Insurance Company Inc., 2003 ONFSCDRS 165

Financial Services Commission of Ontario

Neutral Citation: 2003 ONFSCDRS 165 FSCO A02-001155

BETWEEN:

SIAMAK SHALCHI-AMIRKHIZ Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

DECISION ON A MOTION

Before: Eban Bayefsky

Heard: November 3, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Mr. Shalchi-Amirkhiz Katherine E. Kolnhofer for Belair Insurance Company Inc.

Issues:

The Applicant, Siamak Shalchi-Amirkhiz, was injured in a motor vehicle accident on August 6, 2001. He applied for and received statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.¹ Belair denied Mr. Shalchi-Amirkhiz income replacement benefits, medical benefits, attendant care benefits and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Mr. Shalchi-Amirkhiz applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. On November 3, 2003, Belair brought a motion to dismiss Mr. Shalchi-Amirkhiz's arbitration on the basis of his failure to provide any of the documents ordered to be produced at the original pre-hearing conference in March 2003, and on the basis of his failure to comply with certain orders made in the proceeding since that time. At Belair's motion, Mr. Adam Fox participated on behalf of Belair, represented by Ms. Kolnhofer. Neither Mr. Shalchi-Amirkhiz nor his representative, Mr. Evan Ismaeli, participated in the motion.

The issues in this hearing are:

1. Should Mr. Shalchi-Amirkhiz's arbitration be dismissed on the basis of his failure to comply with various production and cost orders, pursuant to Rules 34.1, 65.7 and 68.1 of the Dispute Resolution Practice Code (the "Code")?

Result:

1. Belair's motion to dismiss Mr. Shalchi-Amirkhiz's arbitration is denied.

2. Mr. Shalchi-Amirkhiz's arbitration is stayed pending his compliance with the orders made to date and pending his payment of Belair's costs of the present motion, fixed at $500.

EVIDENCE AND ANALYSIS:

Background

The initial pre-hearing conference in this matter was held on March 10, 2003, at the Commission's offices. The hearing was scheduled for July 28-31, 2003. The principal production order was for Mr. Shalchi-Amirkhiz to provide, by May 12, 2003, the productions set out in Ms. Kolnhofer's February 19, 2003 letter, as well as the last name of "Joe" at the courier company where Mr. Shalchi-Amirkhiz worked at the time of the accident. Belair's production requests were as follows:

1. Statutory Declaration;
2. Decoded OHIP summary from one year pre-accident to present;
3. Clinical notes and records of Dr. Komeili from one year pre-accident to present;
4. Clinical notes and records of Dr. Pardis from one year pre-accident to present;
5. Defence medical reports from any tort action;
6. Employment files from all employers from one year pre-accident to present;
7. Income tax returns, including all information slips and Notice of Assessment Return for 2000 to present;
8. Full name, address and telephone number of housekeeping service provider;
9. Breakdown of services with respect to housekeeping and home maintenance expenses;
10. Particulars of collateral benefits available and policies; and
11. Evidence of outstanding medical and rehabilitation expenses claimed.

On March 18, 2003, Ms. Kolnhofer wrote Mr. Ismaeli confirming the pre-hearing order and requesting: the last name of "Joe" in addition to his telephone number; the telephone number of Gary Davis; a copy of the front and back of the cashed pay cheques from Alvand Transport; and the cover letter and facsimile coversheet evidencing that these cheques were provided to the insurer.

On April 11, 2003, Ms. Kolnhofer's office wrote Mr. Ismaeli requesting the noted productions by May 12, 2003, as ordered at the pre-hearing conference.

On June 5, 2003, Ms. Kolnhofer requested a resumption of the pre-hearing due to Mr. Ismaeli's failure to provide the noted documents. Ms. Kolnhofer listed the documents ordered to be produced at the initial pre-hearing, as well as those requested in her correspondence of March 18, 2003.

The pre-hearing resumed on June 20, 2003, by telephone conference. Mr. Ismaeli and Ms. Kolnhofer participated. After hearing submissions from the parties, I ordered Mr. Ismaeli to courier the productions identified in my initial pre-hearing letter of March 27, 2003 and Ms. Kolnhofer's letter of June 5, 2003, to Ms. Kolnhofer on June 23, 2003. I further ordered the Applicant to pay Belair $500 in respect of the reconvened pre-hearing prior to the hearing, which was to commence on July 28, 2003.

On July 3, 2003, Ms. Kolnhofer wrote Mr. Ismaeli confirming that she had not received the documents ordered to be couriered on June 23, 2003. Ms. Kolnhofer stated that should they not receive the documents by 5:00 p.m. on Friday, July 4, 2003, she would be requesting a further pre-hearing resumption and seeking costs.

On July 8, 2003, Ms. Kolnhofer wrote the Commission confirming that they had received no productions to date and requesting a resumption of the pre-hearing conference.

By correspondence dated July 10, 2003, Mr. Ismaeli provided Ms. Kolnhofer with a number of productions. However, Ms. Kolnhofer advised that the documents provided were either documents that Belair already had or documents that had never been requested. Ms. Kolnhofer advised that none of the documents satisfied any of Belair's previous production requests.

On July 24, 2003, Mr. Ismaeli requested an adjournment of the hearing on the grounds that Mr. Shalchi-Amirkhiz would not be able to attend the hearing due to a family emergency. Mr. Shalchi-Amirkhiz was apparently required to travel to British Columbia due to an illness in his family.

The pre-hearing resumed on July 25, 2003 by telephone conference to address the outstanding productions, as well as Mr. Shalchi-Amirkhiz's request for an adjournment. Mr. Shalchi-Amirkhiz participated, represented by Mr. Ismaeli. Mr. Fox participated, represented by Ms. Kolnhofer. After hearing submissions from the parties, I made the following orders:

3. The hearing is adjourned to December 1-4, 2003, at the offices of the Financial Services Commission in North York. These dates are peremptory to the Applicant. No further adjournment will be granted except in extreme and unforeseen circumstances. The Applicant shall provide the Insurer with his airline tickets showing his trip to Vancouver. The costs associated with this adjournment request are reserved to the hearing arbitrator.

4. The Applicant shall provide the outstanding productions (as noted in the initial pre-hearing letter and the Insurer's subsequent letters) or written reasons as to his efforts to obtain these items. The Applicant shall, within two weeks of the pre-hearing resumption, courier to the Insurer the "request letters" he had already sent to obtain the Insurer's requested productions.

5. The Applicant shall pay the Insurer $500 in costs in respect of this reconvened pre-hearing prior to the hearing on December 1, 2003. The Applicant's request for an extension to comply with my order for payment of June 20, 2003 is denied.

On October 7, 2003, Belair brought a motion to have Mr. Shalchi-Amirkhiz's arbitration dismissed pursuant to Rules 34.1, 65.7 and 68.1 of the Code for his failure to comply with any of the pre-hearing orders. Belair sought an order that Mr. Shalchi-Amirkhiz pay its expenses of the motion and these proceedings, including its $3,000 assessment fee. In the alternative, Belair sought an order barring Mr. Shalchi-Amirkhiz from proceeding with the arbitration until he complied with the costs ordered to be paid in this matter.

Subsequent to the motion, Mr. Ismaeli wrote to Ms. Kolnhofer on November 13, 2003, stating, in part, as follows:

Please note that we can't provide these documents as you're requested for Arbitration.

On October 20/2003, Mr. Ismaeli's car has been stolen, and there were a couple of files that at the time of theft was gone astray.

Therefore we are not able to proceed this Arbitration on December 01/02/03 & 04/2003, the date you have listed. We would like to have this reschedule and we will wait further information with regard to the new scheduled for Arbitration.

Ms. Kolnhofer responded that Belair objected to the adjournment request, in part, on the basis that "this appears to be a further tactic to stall these proceedings." Ms. Kolnhofer noted that the December 1, 2003 hearing was made peremptory to Mr. Shalchi-Amirkhiz.

Findings

I am not prepared to dismiss Mr. Shalchi-Amirkhiz's arbitration. As in the arbitration decision of Lyght and Allstate Insurance Company of Canada (FSCO A01-000749, May 14, 2002), in which the Applicant repeatedly failed to comply with undertakings and orders, I find that the "specific notice prerequisites required by Rule 68 of the Code (for the dismissal of a proceeding without a hearing)" have not been met. I am also not satisfied that Mr. Shalchi-Amirkhiz's arbitration is frivolous, vexatious or has been commenced in bad faith, as required by Rule 68.

However, Mr. Shalchi-Amirkhiz has failed to comply with a variety of orders made over the course of these proceedings. For example, he has failed to provide any of the productions ordered at the initial pre-hearing conference and at the pre-hearing resumptions on June 20 and July 25, 2003. He has failed to pay Belair the costs ordered on June 20, 2003 and confirmed on July 25, 2003. He has failed to provide Belair with the "request letters" for the noted productions or with written reasons as to his efforts to obtain the outstanding documents. He has failed to provide copies of his airline tickets to Vancouver, which formed the basis of his request for an adjournment of the hearing. No one appeared for Mr. Shalchi-Amirkhiz at Belair's motion to have the arbitration dismissed. I give no weight to Mr. Ismaeli's subsequent letter concerning the alleged theft of his car and his resulting inability either to provide the noted productions or to proceed with the hearing on December 1, 2003.

Pursuant to Rule 65.7 of the Code, an arbitrator "may make such orders or give such directions as he or she considers proper to prevent an abuse of process." In my view, significant restrictions must be placed on Mr. Shalchi-Amirkhiz's ability to proceed with his arbitration in order to prevent an abuse of process.

I am not prepared to adjourn the upcoming arbitration hearing. One of the conditions for the first adjournment of the hearing was that Mr. Shalchi-Amirkhiz would provide copies of his airline tickets to Vancouver. Mr. Shalchi-Amirkhiz has failed to comply with this order. The new hearing date was made peremptory to Mr. Shalchi-Amirkhiz. No further adjournments would be granted except in extreme and unforeseen circumstances. Mr. Ismaeli has not provided any proof of the alleged theft of his car. I have no information of what, if any, materials pertaining to Mr. Shalchi-Amirkhiz were in Mr. Ismaeli's car. I do not accept that Mr. Ismaeli has established "extreme and unforeseen circumstances" requiring the adjournment of the December hearing. I note in this regard that Belair has offered to provide Mr. Ismaeli with a copy of its accident benefits file.

In the cases of Ho, Khong and Nguyen and Allstate Insurance Company of Canada (FSCO A00-001228, September 5, 2002), the arbitrator stayed the arbitration pending the Applicants' compliance with a previous order, dated May 28, 2002, to pay Allstate "the sum of $500.00 for expenses within 45 days of this letter...." In the present case, Mr. Shalchi-Amirkhiz has failed to comply with an order to pay expenses, as well as various other orders. In order to prevent an abuse of the Commission's process, I find that this arbitration ought to be stayed pending Mr. Shalchi-Amirkhiz's compliance with the orders made to date and pending his payment of Belair's costs of the present motion, fixed at $500.

November 21, 2003

Eban Bayefsky Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 165 FSCO A02-001155

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SIAMAK SHALCHI-AMIRKHIZ Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Shalchi-Amirkhiz's arbitration is stayed pending his compliance with the orders made to date and pending his payment of Belair's costs of the present motion, fixed at $500.

November 21, 2003

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.