Neutral Citation: 2004 ONFSCDRS 174
FSCO A03-001697
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHARIF KULMIE
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
DECISION ON A MOTION
Before:
Denise Ashby
Heard:
November 22, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appeared for Mr. Kulmie
Gustavo Garrido for TTC Insurance Company Limited
Issues:
The Applicant, Sharif Kulmie, claims he was injured in a motor vehicle accident on January 9, 2003. He applied for statutory accident benefits from TTC Insurance Company Limited (the "TTC"), payable under the Schedule.1 Mr. Kulmie's claims for income replacement and medical benefits were denied by the TTC on January 15, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Kulmie applied for arbitration at the Financial Services Commission of Ontario (Commission) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
On Monday, November 22, 2004 at the Commission, the time and place set for the hearing in the Notice of Hearing dated March 17, 2004, neither Mr. Kulmie nor a representative appeared. The TTC brought a motion to have this matter dismissed as a consequence of Mr. Kulmie's failure to appear.
Result:
The matter is not dismissed.
The preliminary issue hearing adjourned on Monday, June 28, 2004 will be heard before me on Thursday, December 23, 2004.
The hearing scheduled to commence Monday, November 22, 2004 is adjourned to a date to be set, if necessary, following the release of the preliminary issue decision.
This decision shall be sent to Mr. Kulmie, by courier at the address provided in the Application for Arbitration. This shall be good and sufficient service of notice of the preliminary issue hearing on Thursday, December 23, 2004.
EVIDENCE AND ANALYSIS:
History of Proceedings:
Mr. Kulmie was involved in a motor vehicle accident on January 9, 2003. He claimed that he was injured in the accident and applied for statutory accident benefits. Benefits were denied by the TTC. In the pre-hearing letter dated March 17, 2004 the arbitrator noted that the TTC had raised a preliminary issue as follows:
"Was Mr. Kulmie injured as the direct result of the use or operation of a TTC vehicle?"2
The preliminary issue hearing was scheduled for Monday, June 28, 2004. As well, the hearing was scheduled to commence on Monday, November 22, 2004. Notices of hearing dated March 17, 2004 were issued setting the above dates.
The preliminary issue hearing was convened on June 28, 2004. Mr. Kulmie was in attendance. The Arbitrator in her letter dated June 28, 2004 confirmed her order permitting counsel for the Applicant to withdraw. Further, she granted the adjournment of the matter to allow Mr. Kulmie time to retain new counsel. In her letter, the Arbitrator requested:
...that the Applicant ask his new counsel to contact TTC's counsel as soon as possible so counsel might expeditiously approach the case administrator on the file to schedule a new hearing date for the hearing into a preliminary issue.3
Counsel for the TTC advised that he has had no contact with either Mr. Kulmie or counsel on his behalf since the appearance on June 28, 2004. There is no record that either Mr. Kulmie or his counsel have contacted the Commission's case administrator.
On November 15, 2004, the Commission sent a letter to Mr. Kulmie and counsel for the TTC advising of a resumption of pre-hearing scheduled for Tuesday, November 16, 2004 at 10:30 a.m. by telephone. I am advised that the letter was sent by courier to Mr. Kulmie and by fax to the TTC. The resumption was convened. However, Mr. Kulmie could not be reached by telephone and did not participate.
Counsel for the TTC requested an adjournment of the hearing scheduled to commence on Monday, November 22, 2004 in a letter dated November 16, 2004. This letter was couriered to Mr. Kulmie. The TTC based their request for the adjournment on the fact that the preliminary issue hearing had been adjourned on June 28, 2004. The preliminary issue hearing was not rescheduled. Therefore, it was submitted that the hearing of the substantive issues was also adjourned.4 The request for adjournment was denied.
On Monday, November 22, 2004, the hearing was convened before me at 10:00 a.m. Mr. Kulmie did not appear. I recessed the hearing for thirty minutes to permit time for Mr. Kulmie to arrive. When I resumed the hearing at 10:30 a.m. Mr. Kulmie did not appear.
Counsel for the TTC made submissions that the matter should be dismissed based on Mr. Kulmie's failure to appear notwithstanding he had been served with a Notice of Hearing dated March 17, 2004.
Counsel for the TTC had assumed that the hearing scheduled for November 22, 2004 was adjourned because the preliminary issue hearing had not been held.5 I find that it is reasonable to infer that Mr. Kulmie, an unrepresented party, did not appear on November 22, 2004 because he also believed that the hearing would not proceed in the absence of the preliminary issue hearing. Consequently, I am not persuaded that the matter should be dismissed. Therefore, the preliminary issue hearing is scheduled, before me, on Thursday, December 23, 2004 at the Commission at 10:30 a.m.
I am advised by both the Commission's case administrator and counsel for the TTC that mail addressed to Mr. Kulmie at the address provided on the Application for Arbitration has never been returned. I therefore find that the delivery of this decision to Mr. Kulmie, by courier at the address provided in the Application for Arbitration, shall be good and sufficient service of notice of the rescheduled preliminary issue hearing on Thursday, December 23, 2004.
My decision not to dismiss is premised on the fact that the preliminary issue hearing had not taken place. I find that a determination of the jurisdictional issue was a condition precedent to hearing Mr. Kulmie's claim for benefits. Therefore, it is not necessary for me to consider whether the matter could be construed as constructively withdrawn6; should be dismissed for failure to attend7or dismissed on its merits.8
EXPENSES:
The issue of expenses will be dealt with at the preliminary issue hearing.
November 25, 2004
Denise Ashby Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 174
FSCO A03-001697
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHARIF KULMIE
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The matter is not dismissed.
The preliminary issue hearing adjourned on Monday, June 28, 2004 will be heard before me on Thursday, December 23, 2004 at 10:30 a.m.
The hearing scheduled to commence Monday, November 22, 2004 is adjourned to a date to be set, if necessary, following the release of the preliminary issue decision.
This decision shall be sent to Mr. Kulmie, by courier at the address provided in the Application for Arbitration. This shall be good and sufficient service of notice of the preliminary issue hearing on Thursday, December 23, 2004.
November 25, 2004
Denise Ashby Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Pre-hearing letter dated March 17, 2004
- Order dated June 28, 2004
- Adjournment request letter dated November 16, 2004
- Ibid
- Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, June 11, 1996)
- Earl and State Farm Mutual Automobile Insurance Company, (FSCO A00-000408, March 20, 2001)
- Mustafa and Royal Insurance Company of Canada, (FSCO A98-00116, March 30, 1999)