Neutral Citation: 2005 ONFSCDRS 63
FSCO A04-001283
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ELIVERT (MARK) LAMARRE
Applicant
and
PILOT INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Lorne Slotnick
Heard:
April 25, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Peter B. Cozzi for Mr. Lamarre
Cara Boddy for Pilot Insurance Company
Issues:
The Applicant, Elivert (Mark) Lamarre, was injured in a motor vehicle accident on December 28, 2001. He applied for statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Lamarre applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Mr. Lamarre did not appear at the hearing. The notice of hearing, dated January 27, 2005, was mailed to his last known address, in Florida. Mr. Lamarre responded to the notice in a letter dated March 1 and received by the Commission on March 22, saying "it is practically impossible for me to attend this hearing in person on the scheduled dates. This is due in part to previously made commitments for that date and time slot. Such commitments arose, as you might guess, from family emergencies which I'm obliged to attend to." Mr. Lamarre adds that he is "currently in discussion with my lawyer for the possibility of being represented legally." He asks for a postponement to "enable me to contact available material witnesses and evidence so vital to the case."
Mr. Lamarre did not send a copy of this letter to his counsel, Mr. Cozzi, but Mr. Cozzi and insurer counsel were provided with a copy promptly by the case administrator. Mr. Cozzi responded that Mr. Lamarre's letter was his first notice that he wished an adjournment or that his client was uncertain about whether he wished to be represented. He suggested that the Commission contact Mr. Lamarre directly about the proposed adjournment.
Mr. Cozzi's letter and the Commission's practice note on adjournments were then sent to Mr. Lamarre at his address in Florida, as well as to a previous address in Windsor. This and other letters to the Windsor address have been returned, marked "Moved/Unknown" and the letter to Florida was returned marked "Undeliverable, Commercial Mail Receiving Agency, No Authorization to Receive Mail for this Addressee." I was advised that investigation by the insurer revealed that the Florida address is at a Mail Boxes Etc. outlet and was closed on March 3 with no forwarding address. The Commission has no phone number on file for the Applicant.
At the hearing, Mr. Cozzi advised that he has been unable to contact Mr. Lamarre since before the Applicant wrote to the Commission asking for an adjournment. Mr. Lamarre's last phone number is apparently disconnected, and he is not responding to fax messages sent by Mr. Cozzi.
In the circumstances, I am not prepared to grant the adjournment requested by the Applicant. As the insurer points out, there is no clear indication that Mr. Lamarre will ever contact the Commission or his counsel, nor has he complied with the Commission's adjournment policies or provided any details of the reasons for his request. However, I do not agree with the insurer that the application should be dismissed at this point. Mr. Lamarre's letter of March 1 - less than two months before the hearing - suggests strongly that he still wishes to pursue the matter. If he does have a valid claim to income replacement and housekeeping benefits, it would not be fair to him to dismiss the application at this stage if it turns out that he had legitimate reasons for not appearing at the hearing.
I am willing to give Mr. Lamarre an opportunity to pursue this application if he can justify his absence from the April 25 hearing and if he pays legal expenses unnecessarily incurred by Pilot because of his failure to appear. I will therefore stay this proceeding. Mr. Lamarre is required by July 31, 2005, to provide some justification for his failure to attend the hearing on April 25 and to pay Pilot's expenses which I fix at $750. If he does so, I will exercise my discretion on whether to grant an adjournment, after also hearing from the insurer. If Mr. Lamarre does nothing, or fails to meet the above conditions by July 31, I will issue an order dismissing his application.
May 9, 2005
Lorne Slotnick
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 63
FSCO A04-001283
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ELIVERT MARK LAMARRE
Applicant
and
PILOT INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- This arbitration proceeding is stayed. Mr. Lamarre is required by July 31, 2005, to provide some justification for his failure to attend the hearing on April 25 and to pay Pilot's expenses which I fix at $750.
May 9, 2005
Lorne Slotnick
Arbitrator
Date