Neutral Citation: 2005 ONFSCDRS 64

FSCO A03-001543

BETWEEN:

HERMINIGILDO G. NONAN

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Lorne Slotnick

Heard: April 26, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Mr. Nonan Michelle Brown for Liberty Insurance Company of Canada

Issues:

The Applicant, Herminigildo Nonan, says he was injured in a motor vehicle accident on September 16, 2001. He applied for statutory accident benefits from Liberty Insurance Company of Canada ("Liberty"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Nonan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion on this application in April, 2004, a preliminary issues hearing was scheduled for November 16 and 17, 2004, on whether Mr. Nonan's impairment was the result of an accident as defined by the Schedule. One day before that hearing was to commence, Mr. Nonan's counsel, Raj Napal, requested an adjournment because he had only recently been retained. The Commission granted an adjournment until March 29 and 30, 2005, but the arbitrator ordered Mr. Nonan to pay expenses of $1,000 before the March hearing dates, because he caused Liberty to incur unnecessary preparation costs. The arbitrator also marked the March hearing dates peremptory to Mr. Nonan.

When the March 29 hearing convened before me, Mr. Nonan had still not paid the $1,000. His counsel, Mr. Napal, remedied that problem by issuing a cheque to Liberty on the spot. But there was a larger obstacle to the hearing getting under way: Mr. Nonan was nowhere to be found. Mr. Napal advised that he found out on the business day before the hearing that Mr. Nonan was in the Philippines, and that he had been told by Mr. Nonan's former agent that he would be back by mid-April. I gave Mr. Napal a few minutes to try to find out more, but he was unable to clarify the reasons for Mr. Nonan's absence. Given that the hearing had been marked peremptory, Liberty requested that I dismiss the application. Mr. Napal argued that because it appeared that Mr. Nonan had left Canada suddenly, there was the possibility he had a legitimate excuse for not attending, such as a family emergency. He requested an adjournment of the hearing.

I issued an oral decision that day (confirmed in a letter to the parties) saying that counsel for the Applicant deserved an opportunity to investigate whether his client had a legitimate reason for not attending the hearing. I gave Mr. Napal two weeks, until April 12, to provide any information that might clarify the situation, and I gave Liberty a further week to respond.

On April 13, Mr. Napal wrote to the Commission saying he had been unable to contact Mr. Nonan. He provided no details of what attempts he had made or even any confirmation that Mr. Nonan was in fact in the Philippines. Mr. Napal asked for an extension until the end of April to continue investigating, or for an adjournment of the hearing. Liberty responded by again asking that the application be dismissed.

On April 15, I wrote to the parties denying the request for an extension or an adjournment, saying that "Mr. Napal has provided no concrete evidence that Mr. Nonan has a legitimate reason for failing to attend the hearing." I ordered that the hearing proceed on April 26, and told Mr. Napal that he was to advise me and counsel for Liberty before the hearing if he was able to receive instructions.

The day before this hearing was to resume on April 26, Mr. Napal wrote to the Commission as follows:

We have not been able to take instructions from Mr. Nonan as we have not been able to contact him in the Philippines, in these circumstances we cannot continue to act for him until we receive proper instructions from him until he returns to Canada at the end of May 2005.

In the meantime we suggest that you schedule the preliminary hearing on June 9^th, 2005 and vacate the other arbitration date. A copy of this correspondence has been sent to the Lawyers representing Liberty Insurance Company of Canada confirming that we shall not be in attendance at the hearing tomorrow.

The June 9 date referred to above is during the week originally set for the main hearing on the case.

When the hearing convened on April 26, neither Mr. Nonan nor his counsel was in attendance. After waiting for half an hour, I advised counsel for Liberty that I would be dismissing the application and asked her for submissions on expenses.

Mr. Napal has not requested to be removed as counsel of record. As counsel of record, he is obliged to appear at a scheduled hearing, unless he has a legitimate reason for not attending.

He cannot force an adjournment simply by refusing to appear. Furthermore, the statement in his letter that Mr. Nonan will return to Canada at the end of May is not supported by any evidence and I do not accept it.

I have no evidence on which to find that Mr. Nonan's impairment resulted from an accident. Mr. Nonan has not met his onus of establishing a basis for his claim, and as a result I am dismissing his application.

In the circumstances, I will be ordering payment of Liberty's expenses. Counsel for Liberty requested some time to make submissions with regard to the amount of expenses being sought. In my view, because of Mr. Napal's failure as counsel of record to attend the April 26 hearing, this may be a case for making him liable personally for a portion of the costs pursuant to section 282(11.2) and (11.3) of the Insurance Act. (See the recent decision in Al-Hajam and Allstate Insurance Company of Canada., (FSCO A03-001830, April 21, 2005). Accordingly, pursuant to section 282(11.4) of the Insurance Act, I am allowing Mr. Napal an opportunity to make representations on this point.

Liberty will have three weeks from the date of this decision to make submissions on the amount of the expenses and who should pay what portion. The Applicant and Mr. Napal will have a further two weeks to respond. Liberty will have another week to reply to the Applicant's submissions.

May 9, 2005

Lorne Slotnick Arbitrator

Date