Neutral Citation: 2005 ONFSCDRS 26

FSCO A03-000125

BETWEEN:

NISSON DINKHA

Applicant

and

MARKHAM GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Fred Sampliner

Heard:

By telephone conference call on January 20, 2005. Written submissions were received on Insured: January 18, 2005 Insurer: January 14, 2005.

Appearances:

Don Morris for Mr. Dinkha James Leone for Markham General Insurance Company

Issues:

The Applicant, Nisson Dinkha, was injured in a motor vehicle accident on December 23, 2001, and received statutory accident benefits from Markham General Insurance Company ("Markham"), payable under the Schedule.¹ He applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, after Markham refused to pay for his massage and physiotherapy treatment, totalling $5,780. Markham seeks an order for Mr. Dinkha to pay its arbitration expenses and $3,000 assessment fee as a condition to granting his request to withdraw his dispute from arbitration.

The preliminary issue is:

Is Mr. Dinkha permitted to withdraw from this arbitration?
Is Mr. Dinkha required to pay Markham's $3,000 assessment fee and its expenses of the arbitration as a condition to his withdrawal?

Result:

Mr. Dinkha is allowed to withdraw from this arbitration.
Mr. Dinka is not required to pay Markham's $3,000 assessment fee or its expenses of the arbitration as a condition to his withdrawal.

EVIDENCE AND ANALYSIS:

Mr. Dinka seeks permission to withdraw from arbitration under Rule 70 of the Dispute Resolution Practice Code (DRPC) because he claims the parties resolved his claims in this proceeding before the June 2003 pre-hearing discussion. Both Mr. Morris and Ms. Meredith Kennedy, his legal assistant, explained in the telephone conversation that Markham's ADR Coordinator, Ms. Yvonne Spencer, agreed to resolve these claims through their office by submitting them to a Designated Assessment Centre, which resulted in payment of his treatment claims.

Markham's lawyer objected to these oral statements because the Insurer did not have an opportunity to present sworn evidence that these issues remained open. However, Markham knew Mr. Dinkha's position that the parties had settled the disputed claims in the arbitration from the parties' correspondence and written submissions before the hearing. Markham did not object to having this matter decided through a telephone conference. Markham did not file documents indicating the issues remained in dispute. Markham did not request an oral hearing to present formal evidence, or make Ms. Spencer available for the telephone conference.

Markham's position that Mr. Dinka did not have any outstanding claims to arbitrate when he filed his application contradicts its position there are presently issues remaining in dispute. The documents in the FSCO file indicate Mr. Dinka's $5,000 physiotherapy and $780 massage therapy claims were denied, unsuccessfully mediated and squarely set out in his Application as the subject matter of this arbitration proceeding. Markham's response did not allege there were not any claims in dispute.

More importantly, Markham's lawyer conceded his strategy, in arguing for terms of withdrawal, is to foreclose Mr. Dinkha from filing another application that results in his client paying another $3,000 assessment fee. Neither party indicated there are currently any other disputed issues between them, and there is no basis to exercise judicial economy by keeping this arbitration pending.

Markham further argues that Mr. Dinkha's lawyer lacks authority to act for his client because he retained another lawyer in February 2004 to represent him concerning this automobile accident. However, Mr. Dinkha was represented by Mr. Morris in June 2003 when he asked to withdraw, remains counsel of record, and I am not prepared to go behind the authority of his representation to complete this withdrawal absent contradictory instructions from his client. I find that Mr. Morris represents Mr. Dinkha.

I find that Mr. Dinkha's treatment claims were proper subjects of his arbitration when he applied to FSCO in January 2003, and that the parties agreeably resolved his claims before the pre-hearing discussion in June 2003. Thus, Mr. Dinkha is entitled to withdraw this arbitration in accordance with DRPC Rule 70. None of the above establishes this proceeding is either frivolous, vexatious or an abuse of process,² and I find that Markham is not entitled to its expenses of the arbitration under DRPC Rule 75.

I have no statutory jurisdiction to order Mr. Dinkha to pay Markham's $3,000 assessment because section 282(11.2) of the Insurance Act was repealed in November 2003. It applies retroactively³ and I dismiss Markham's claim for its assessment.

March 4, 2005

Fred Sampliner Arbitrator

Date