FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2004 ONFSCDRS 103

FSCO A04-000490

BETWEEN:

JASON BROWN

Applicant

and

ONTARIO MUNICIPAL INSURANCE EXCHANGE

Insurer

PRE-HEARING DECISION

Before:

David Muir

Heard:

By telephone conference call on June 18, 2004. Written submissions received on June 21 and 22, 2004.

Appearances:

Brian Sherman for Mr. Brown

Bryan D. Rumble for Ontario Municipal Insurance Exchange

Issues:

The Applicant, Jason Brown, claims to have been injured in a motor vehicle accident on June 28, 2002. He applied for and received statutory accident benefits from Ontario Municipal Insurance Exchange ("Ontario"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Brown applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on June 18, 2004, Mr. Sherman sought to be removed from the record citing a breakdown in his relationship with his client. In particular, Mr. Brown has simply failed to respond to numerous attempts by Mr. Sherman to contact him. In my report of the pre-hearing I made the following directions:

Ontario seeks an order pursuant to Rule 34 of the Dispute Resolution Practice Code, dismissing the arbitration. Mr. Sherman seeks an order pursuant to Rule 9 allowing him to withdraw as Mr. Brown's representative.

The parties were directed to set out their positions in writing on these issues, and serve them on Mr. Brown before the end of business, Friday June 18 [should read 25th], 2004. I will rule on the parties' motions upon receipt of their materials.

Mrs. Brown indicated that she might be able to speak with Mr. Brown. I asked her to pass on this letter to him and to have him call Mr. Sherman, who has agreed to speak with Mr. Brown should he call.

Ontario subsequently withdrew its request for an order pursuant to Rule 34 on the basis that such an order was not authorized by the Rule, but did request that I give written notice pursuant to Rule 68.2 of the Dispute Resolution Practice Code (4th Edition, Updated - October 2003) (the "Code"), of the intention to dismiss the arbitration without a hearing.

The issues are:

Should Mr. Sherman be allowed to withdraw as Mr. Brown's representative pursuant to Rule 9 of the Code?
Should I exercise my discretion to give written notice to the parties, pursuant to Rule 68.2 of the Code, of the intention to dismiss the arbitration on the grounds set out in Rule 68.1 of the Code?

Result:

Mr. Sherman may withdraw as Mr. Brown's representative without conditions, pursuant to Rule 9 of the Code.
By this decision the parties are on Notice of the intention to dismiss the arbitration without a hearing because the proceeding is frivolous, vexatious or is commenced in bad faith.

EVIDENCE AND ANALYSIS:

At the first pre-hearing on May 13, 2004, Mr. Brown was not in attendance, although his representative Mr. Sherman was. Mr. Sherman could not explain his client's absence other than to indicate difficulty in making contact with him. The pre-hearing was adjourned to June 18, 2004, with expenses awarded to Ontario.

Just prior to the resumption pre-hearing, Mr. Sherman wrote indicating that despite numerous attempts to contact Mr. Brown, he had not responded and Mr. Sherman indicated that he would be seeking leave to be removed as Mr. Brown's representative. In addition, the Case Administrator spoke with Mr. Brown a day or two before the pre-hearing, reminded him of the upcoming telephone pre-hearing and obtained a telephone number where he could be reached at the time set for the resumption. At the resumption, Mr. Brown did not respond to a telephone call made to the number. The voice-mail greeting indicated that it was a good number and a message was left that Mr. Brown should contact Mr. Sherman or the Case Administrator as soon as possible.

Mr. Brown's mother was contacted by telephone and participated in the June 18th pre-hearing. She was asked by myself to deliver a message to Mr. Brown that he ought to contact Mr. Sherman forthwith. Mr. Sherman agreed to remain on the record pending Mr. Brown contacting him. Since the resumed pre-hearing Mr. Brown has not contacted Mr. Sherman or the Commission.

Based on the foregoing, I have no hesitation in granting the motion of Mr. Sherman that he be removed as Mr. Brown's representative. Ontario made no submission in this regard and, in particular, sought no terms on such an order. In the circumstances, no terms would have been appropriate in any event.

Ontario made written submissions in support of its request pursuant to Rule 68.2 of the Code, in a letter dated June 22, 2004 which was delivered to Mr. Brown and Mr. Sherman. Mr. Sherman was advised that if a response from him was required, he would be contacted by the Commission. As I have allowed Mr. Sherman leave to withdraw as Mr. Brown's representative, he has no obligation to participate further in this matter.

I have considered the submissions of Ontario. Mr. Brown appears to have abandoned the arbitration. In the absence of a Rule providing for the dismissal of an arbitration which has been abandoned, the Rule relied upon by Ontario is the most appropriate available. Accordingly, I give Notice, pursuant to Rule 68.2 of the Code, of the intention to dismiss the arbitration without a hearing because the proceeding is frivolous, vexatious or is commenced in bad faith.

Pursuant to Rule 68.3, if Mr. Brown, or Ontario, objects to the dismissal of the arbitration, they must provide the grounds for their objection, or any other concerns or issues, in writing and serve the material on myself and the other party within 20 days from the date of this decision.

I will consider the submissions of the parties, if any, and make such order as I consider just.

EXPENSES:

The question of expenses is deferred pending the resolution of the Rule 68.1 issue.

July 9, 2004

David Muir Arbitrator

Date