FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 60
FSCO A02-000817
BETWEEN:
DURLEJ KRZYSZTOF
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
April 1, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Justin Mariani, Agent, for Mr. Krzysztof
Peter Kazdan, Barrister and Solicitor, for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Durlej Krzysztof, was injured in a motor vehicle accident on September 16, 2000. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.1 Royal refused to pay housekeeping and home maintenance expenses claimed by Mr. Krzysztof. The parties were unable to resolve their disputes through mediation, and Mr. Krzysztof applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Krzysztof entitled to payment for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is either party entitled to expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Krzysztof liable to pay an amount to Royal that does not exceed the amount assessed against Royal in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because he commenced an arbitration that is frivolous, vexatious or an abuse of process?
Result:
The application for arbitration is dismissed.
Mr. Krzysztof shall pay Royal its expenses of the arbitration proceeding after assessment or agreement.
Mr. Krzysztof shall pay Royal $3,000 pursuant to subsection 282(11.2) of the Insurance Act.
WITHDRAWAL OF REPRESENTATIVE:
Mr. Krzysztof did not appear at the hearing.
At the opening of the hearing, Mr. Mariani asked to withdraw as Mr. Krzysztof’s representative. I have no evidence that Mr. Krzysztof consented to Mr. Mariani withdrawing as representative. Rule 9.7 of the Dispute Resolution Practice Code (Fourth Edition) allows an arbitrator to permit a representative to withdraw, subject to such terms as the adjudicator considers just.
Mr. Mariani advised me that he wrote to Mr. Krzysztof on three occasions to ask him to come to his office to prepare for the hearing and Mr. Krzysztof refused. Mr. Mariani advised me that he told Mr. Krzysztof that he intended to get off the record and that Mr. Krzysztof said he would not come to the hearing today.
In view of the breakdown in the relationship between Mr. Mariani and Mr. Krzysztof, I permit Mr. Mariani to withdraw as representative.
EVIDENCE AND ANALYSIS:
On behalf of Royal, Mr. Kazdan asked that I dismiss the application for arbitration and award Royal its expenses of the arbitration proceeding. He also asked for an award against Mr. Krzysztof under subsection 282(11.2) of the Insurance Act.
Mr. Mariani confirmed that the Commission has Mr. Krzysztof’s correct mailing address. I find that Mr. Krzysztof had notice of the hearing. Since I heard no evidence on behalf of Mr. Krzysztof, his application for arbitration is dismissed.
Expenses:
The criteria I should consider in awarding expenses are set out in Regulation 664, R.R.O. 1990 as amended by Ontario Regulation 464/96. Having regard to those criteria, I order Mr. Krzysztof to pay Royal its expenses of the arbitration proceeding. If the parties cannot agree on the amount, either party can apply to me for a determination of the amount pursuant to Rule 79.2 of the Dispute Resolution Practice Code (Fourth Edition).
Assessment under subsection 282(11.2) of the Insurance Act:
Royal paid the Commission $3,000 to file a Response to Mr. Krzysztof’s Application for Arbitration. Under subsection 282(11.2) of the Insurance Act, an arbitrator may order an insured person to pay the insurer all or part of the insurer's filing fee where the arbitrator finds that the insured person commenced an arbitration that was frivolous, vexatious or an abuse of process. The pre-hearing letter, which was mailed to Mr. Krzysztof, identifies as an issue of this hearing whether Mr. Krzysztof should pay the amount of the filing fee to Royal.
In these circumstances, where Mr. Krzysztof commenced an application for arbitration and knowingly put Royal to the expense of responding to his application and preparing for hearing, and then did not appear at the hearing, I find that Mr. Krzysztof abused this process. Accordingly, he should pay Royal $3,000, the amount it paid the Commission to file a Response to his Application for Arbitration.
April 15, 2003
William J. Renahan
Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 60
FSCO A02-000817
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
DURLEJ KRZYSZTOF
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Application for Arbitration is dismissed.
Durlej Krzysztof shall pay Royal & SunAlliance Insurance Company of Canada its expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act after agreement or assessment.
Durlej Krzysztof shall pay Royal & SunAlliance Insurance Company of Canada $3,000 pursuant to subsection 282(11.2) of the Insurance Act.
April 15, 2003
William J. Renahan
Arbitrator
Date
Footnotes
- The 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.