Brown v. Ontario Municipal Insurance Exchange, 2004 ONFSCDRS 190

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2004 ONFSCDRS 190

FSCO A04-000490

BETWEEN:

JASON BROWN Applicant

and

ONTARIO MUNICIPAL INSURANCE EXCHANGE Insurer

DECISION ON A MOTION

Before: David Muir

Heard: Written submissions were received by October 7, 2004.

Appearances: No one 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 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.

The issue in this hearing is:

Should this arbitration be dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code, because it is frivolous, vexatious or was commenced in bad faith?

Result:

The arbitration is dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The circumstances underlying this decision are summarised in my prior decision dated July 9, 2004.

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.

There has been no response from Mr. Brown since the release of my prior decision which constituted the required Notice pursuant to Rule 68.2 of the Dispute Resolution Practice Code. To find that this arbitration is frivolous, vexatious or commenced in bad faith and requires an inference drawn from all of the surrounding circumstances.

I find that it is a fair inference that this arbitration is frivolous and vexatious. I have drawn this inference from the following findings, all of which are capable of being rebutted by evidence to the contrary, none of which was forthcoming from Mr. Brown.

I find that Mr. Brown is aware of this proceeding and has been provided with proper notice of each step in this proceeding. I find that Mr. Brown has repeatedly failed to respond to enquiries from his former representative. I also find, based on discussion with Mr. Brown's mother during the June 18th pre-hearing discussion, that he is not incapacitated or incapable of responding to any of the Notices he has received.

I also find that he is aware of the Notice of Intention to Dismiss the arbitration pursuant to Rule 68.1 of the Dispute Resolution Practice Code. I find as well that he has failed to respond to the Notice within the time lines established in my prior Order. Further, despite considerable delay in the release of this Order, no attempts to contact the Commission have been made.

Mr. Brown has for reasons unknown abandoned his arbitration but has declined to advise Ontario or the Commission. This has caused Ontario entirely unnecessary expense. In the absence of any explanation for his conduct I find that this arbitration is frivolous and vexatious. I accordingly dismiss it pursuant to Rule 68.1.²

EXPENSES:

Ontario requests its expenses of this proceeding. It is entitled to its reasonable expenses. In the event that Ontario still seeks such an order, it may make submissions with respect to the quantum of those expenses in accordance with the provisions of Rule 79 of the Dispute Resolution Practice Code.

December 21, 2004

David Muir Arbitrator

Neutral Citation: 2004 ONFSCDRS 190

FSCO A04-000490

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JASON BROWN Applicant

and

ONTARIO MUNICIPAL INSURANCE EXCHANGE Insurer

ARBITRATION ORDER

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

1. The arbitration is dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code.

December 21, 2004

David Muir Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2I note that there is a line of cases wherein arbitrators have questioned the jurisdiction of an arbitrator to dismiss a hearing under this provision. However, those cases appear to turn on whether or not the applicant had notice of the proceeding. As stated above, there appears no question here that Mr. Brown has had notice of each step of this proceeding. See for example: Omar and Pafco Insurance Company Limited (FSCO A98-001140, September 30, 1999); Tedla and Royal & SunAlliance Insurance Company of Canada (FSCO A98-001414, September 26, 2000).