REASONS FOR DECISION

Before: Richard A. Feldman
Heard: November 8, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:
Zubin Zarolia for Mr. Panach
Thomas J. Hudak for Liberty Insurance Company of Canada

Issues:

The Applicant, Shagara Panach, was allegedly injured in a motor vehicle accident on December 30, 2000. He applied for and received statutory accident benefits from Liberty Insurance Company of Canada ("Liberty Insurance"), payable under the Schedule.¹ Liberty Insurance refused to pay all of the benefits claimed by the Applicant. The parties were unable to resolve their disputes through mediation, and Mr. Panach 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:

Should Zubin Zarolia be removed from the record as counsel for the Applicant?
Should this application be dismissed?
Should the Applicant be ordered to pay the expenses of Liberty Insurance in respect of this arbitration and, if so, what amount should the Applicant pay?

Result:

Zubin Zarolia is removed from the record as counsel for the Applicant.
This application is dismissed.
The Applicant shall forthwith pay to Liberty Insurance its expenses of this arbitration, fixed in the sum of $3,415.72.

EVIDENCE AND ANALYSIS:

The record discloses (and counsel present at the hearing on November 8, 2004 confirm) the following facts.

The Applicant alleged that he was injured in a motor vehicle accident on December 30, 2000. He applied for statutory accident benefits and disputes arose between the Applicant and Liberty Insurance concerning those claims. In particular, disputes arose concerning the Applicant's entitlement to income replacement benefits, the cost of medical treatment and housekeeping and home maintenance services. Mediation was unsuccessful in resolving those disputes. On November 6, 2002, the Applicant filed an application for arbitration. On December 12, 2002, the Insurer filed its response.

On March 31, 2003, a pre-hearing discussion was held at the offices of the Commission. The Applicant attended the meeting, as did his agent at the time, Mr. Justin Mariani. At this meeting, the dates for the hearing were set as December 8, 9, 10 and 11, 2003. In or about late 2003, the Applicant retained the services of Misir & Company, Barristers and Solicitors (Mr. Zarolia is a solicitor at this firm). Since the Applicant also had a related Workplace Safety and Insurance Board (WSIB) claim pending and since the Applicant had not yet made full disclosure to Liberty Insurance, the parties agreed to adjourn the hearing until June 2004.

The pre-hearing discussion was reconvened (by teleconference) on May 14, 2004 because the Insurer was still having difficulty obtaining documentary disclosure. According to Mr. Hudak, the Applicant participated in this discussion. The Applicant, through his representative, provided certain undertakings with respect to documentary disclosure. During this discussion, the parties also agreed to adjourn the hearing of this arbitration until November 8, 9, 10 and 11, 2004. The Applicant was, therefore, aware of the dates and location chosen for this hearing. The formal written notice of the new hearing dates was mailed by the Commission to the Applicant at his last known address in Brampton on June 4, 2004, but the letter was returned to the Commission on June 21, 2004 marked "MOVED / UNKNOWN . . . RETURN TO SENDER."

When the Insurer did not receive the documentary disclosure that had been promised, it contacted the solicitors for the Applicant and learned that the Applicant's solicitors had been unable to locate or contact the Applicant since May 14, 2004. Liberty Insurance then brought a motion for an order for production. This motion was heard on October 28, 2004 and was granted by an order issued on November 3, 2004. The Applicant has failed to comply with any of the provisions of this order.

On November 8, 2004, Mr. Hudak (as counsel for the Insurer) and Mr. Zarolia (as counsel for the Applicant) attended the hearing. The Applicant did not attend (although the hearing was held down for at least 30 minutes) and did not communicate with the Commission. Since Mr. Zarolia has been unable to locate or obtain instructions from his client since May 14, 2004, he requested that he be removed from the record as counsel for the Applicant. Mr. Zarolia's first written notification of his intention to seek an order to remove him from the record as the Applicant's counsel was contained in a letter he wrote to the Commission and to counsel for Liberty Insurance on November 2, 2004.

Mr. Zarolia informed me that his firm has attempted to contact the Applicant numerous times through the telephone numbers and addresses they have for the Applicant, through the current occupants of his former address in Brampton and even through the Applicant's family doctor. It appears that the Applicant has moved from his previous residence without providing any forwarding information and has made no attempt to contact his counsel, the Insurer or the Commission since May 2004. As previously indicated, correspondence sent from the Commission to the Applicant's last known address has been returned to the Commission by Canada Post.

It does not appear that Mr. Zarolia's letter of November 2, 2004 was copied to the Applicant (as would normally be required under Rule 9.7 of the Dispute Resolution Practice Code). Given, however, the previous unsuccessful attempts by Mr. Zarolia and the Commission to mail documents to the Applicant at his last known address in Brampton it is clear that any document mailed to the Applicant's last known address would be unlikely to come to the attention of the Applicant. Since Mr. Zarolia had no instructions from the Applicant (and has had no contact with him since May 2004) and since the Applicant failed to attend the hearing (despite being aware of same), I saw no prejudice to the Applicant in exercising my discretion under Rule 81.1(b) of the Code to waive the usual requirements of Rule 9.7. To do otherwise would be to unduly prolong the proceedings by adjourning the hearing and to engage in the futile exercise of sending a letter to an address at which the Applicant no longer resides and from which letters have already been returned by Canada Post unopened. Liberty Insurance did not oppose the request of Mr. Zarolia to be removed from the record as the Applicant's solicitor. I granted Mr. Zarolia's request and permitted him to leave the hearing room. I then proceeded to hear submissions from Mr. Hudak concerning the disposition of this arbitration.

The Applicant failed to attend the hearing, failed to adduce any evidence in support of his application and failed to comply with the Order (for production) of Arbitrator Miller issued on November 3, 2004. Based upon the information available, I am satisfied that the Applicant had notice that the hearing was scheduled to commence on November 8, 2004. By failing to attend, it appears that Mr. Panach has abandoned his application. Liberty Insurance therefore requested that this application be dismissed and that Liberty Insurance be awarded its expenses of this proceeding. In the circumstances of this case, I find these requests by Liberty Insurance to be reasonable. The application is dismissed.

EXPENSES:

Bearing in mind the criteria set out in the Expense Regulation (Section F of the Code), it is clear that the Insurer was completely successful on this arbitration, that the conduct of the Applicant (prior to the date set for hearing) tended to hinder and prolong the proceedings and that the Applicant failed to comply with his undertakings and an order of the Commission. There was nothing particularly novel or complex about this case (with the possible exception of the WSIB claim) and there were no written offers of settlement. Liberty Insurance presented a "Bill of Costs" which shows that the solicitors for Liberty Insurance spent a total of approximately 42 hours working on this file (at the appropriate Legal Aid rates, this is equivalent to approximately $3,150.00). No time was claimed for the work of law clerks. Approximately $245.00 was incurred for photocopying. The total expenses claimed by the Insurer are $3,415.72.

In the circumstances of this case, I find it appropriate and reasonable to grant to the Insurer the full amount of expenses it has requested.

November 29, 2004

Richard A. Feldman
Arbitrator

ARBITRATION ORDER

Neutral Citation: 2004 ONFSCDRS 178
FSCO: A02-001563

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SHAGARA PANACH
Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA
Insurer

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

Zubin Zarolia is removed from the record as counsel for the Applicant.
This application is dismissed.
The Applicant shall forthwith pay to Liberty Insurance Company of Canada its expenses of this arbitration, fixed in the sum of $3,415.72.