Financial Services Commission of Ontario
Neutral Citation: 2005 ONFSCDRS 66 FSCO A04-001700
BETWEEN:
ADAM GELLE Applicant
and
TD GENERAL INSURANCE COMPANY Insurer
PRE-HEARING DECISION
Before: Eban Bayefsky
Heard: April 5 and May 6, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: No one for Mr. Gelle Christopher Schiffmann for TD General Insurance Company
Issues:
The Applicant, Adam Gelle, claims to have been injured in a motor vehicle accident on March 22, 2003. He applied for statutory accident benefits from TD General Insurance Company ("TD"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Gelle 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 are:
Should I deliver a written notice to the parties of my intention to dismiss Mr. Gelle's arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or has been commenced in bad faith, pursuant to Rule 68.2 of the Dispute Resolution Practice Code?
If the answer to Issue 1 is "yes," and a party wishes to object, what is the appropriate procedure?
Result:
The parties to this arbitration are hereby notified that I intend to dismiss Mr. Gelle's arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or has been commenced in bad faith.
If either party objects to the dismissal of this proceeding without a hearing, they shall provide the grounds upon which they object, or set out any other issues or concerns, in writing, serve the material on the other party and file it with the Commission within 20 days of the date of this decision.
EVIDENCE AND ANALYSIS:
The pre-hearing conference commenced on April 5, 2005. Neither Mr. Gelle nor his stated representative, Mr. Mohammed Muslim, were in attendance. The Commission had sent Mr. Gelle a Notice of Pre-Hearing Discussion on September 27, 2004. The Notice was not returned to the Commission and there is no indication that Mr. Gelle did not receive the Notice.
I heard submissions from Mr. Schiffman as to how to proceed with Mr. Gelle's arbitration. Following the pre-hearing conference I issued a letter, dated April 5, 2005, which stated, in part, as follows:
Mr. Muslim's whereabouts are unknown. On March 22, 2005, the Ontario Superior Court of Justice made various orders in respect of Mr. Muslim's law practice, including appointing the Law Society of Upper Canada as Trustee to take possession of all of Mr. Muslim's files and authorizing the Law Society to take all necessary steps to protect the interests of Mr. Muslim's clients. Enclosed is a copy of the Court's Order.
In light of these developments and given the approaching pre-hearing conference, the Commission attempted to contact Mr. Gelle by telephone to determine how he wished to proceed. The Commission was unable to contact Mr. Gelle. During the pre-hearing conference, I attempted to contact Mr. Gelle, again without success. On both occasions, the voice-mailbox for Mr. Gelle's phone was full.
Given the Superior Court's recent Order, Mr. Gelle is advised to contact either of two individuals at the Law Society of Ontario, Ms Margaret Cowtan, Counsel with the Trusteeship Services of the Law Society of Upper Canada, at (416) 947-3300, extension 3482, or Ms Lina Caldaroni, Regulatory Law Clerk at the Law Society, at (416) 947-3300, extension 2122.
I further make the following orders:
Mr. Gelle shall advise the Commission and the Insurer within two weeks of the date of this letter whether he wishes to proceed with his arbitration without a representative or with a new representative.
Subject to Mr. Gelle's response, the pre-hearing conference shall resume on May 6, 2005, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in North York.
The Case Administrator on this file sent Mr. Gelle a separate letter advising him of the Law Society's involvement, that he should contact either of the two above-noted individuals for further information and that he should advise the Commission as to how he wished to proceed. The letter advised Mr. Gelle that his file would be "held in abeyance for 10 days from the delivery of this notice" and that if he did not respond, the Commission would assume that he wished to proceed without a representative.
Neither of these two letters was returned to the Commission and there is no evidence that Mr. Gelle did not receive them. Neither the Commission nor the Insurer was advised as to whether Mr. Gelle wished to proceed with or without a representative.
The Case Administrator also attempted to contact Mr. Gelle by telephone on three occasions between April 29 and May 4, 2005. On the first occasion, the Case Administrator left a message for Mr. Gelle to advise whether he would be represented or not. Mr. Gelle did not respond to this message. On the other two occasions, Mr. Gelle's voice-mailbox was full (as it had been at the time of the first pre-hearing conference).
As set out in my April 5, 2005 letter, the pre-hearing conference resumed on May 6, 2005 at the offices of the Financial Services Commission of Ontario in North York. Mr. Mike Troubridge and Ms Helen Maheras participated on behalf of TD General, represented by Mr. Schiffman. Mr. Gelle did not appear and no one appeared on his behalf. I waited 15 minutes and then heard submissions from Mr. Schiffman as to how to proceed.
TD General sought a dismissal of Mr. Gelle's arbitration. I advised Mr. Schiffman and his clients of Rule 68 of the Dispute Resolution Practice Code (which emanates from section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended) concerning the procedure applicable to the dismissal of proceedings without a hearing. TD General then requested that I issue a notice, pursuant to Rule 68.2 of the Practice Code, to "all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1" (namely, that the proceeding is "frivolous, vexatious or is commenced in bad faith").
I am cognizant of the difficult situation created for various individuals as a result of Mr. Muslim's conduct (see, for example, the arbitration case of Al-Hajam and Allstate Insurance Company of Canada, FSCO A03-001830, April 21, 2005, as well as the above-noted Superior Court order in Law Society of Upper Canada and Sarko Mohammed Mortala Muslim, unreported, March 22, 2005, Court File No. LS-004/05). However, in this particular case, a number of attempts have been made to contact Mr. Gelle in order to provide him with assistance, and to afford him a full opportunity to proceed with his arbitration. Mr. Gelle has, to date, been completely unresponsive. He appears to have abandoned his arbitration. In my view, it would be unreasonable to require TD General to proceed further with this matter, in the absence of a clear indication from Mr. Gelle that he wishes to proceed with his arbitration.
In all of the circumstances, I am prepared to issue the following notice, pursuant to Rule 68.2 of the Practice Code:
The parties to this arbitration are hereby notified that I intend to dismiss Mr. Gelle's arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or has been commenced in bad faith.
I note that this approach was taken in a similar case, Brown and Ontario Municipal Insurance Exchange (FSCO A04-000490, July 9, 2004).
Pursuant to Rule 68.3 of the Practice Code, should Mr. Gelle or TD General object to the dismissal of this arbitration without a hearing or wish to make submissions on this matter, they must provide the grounds upon which they object, or set out any other issues or concerns, in writing, serve the material on the other party and file it with the Commission within 20 days of the date of this decision. Pursuant to Rule 68.4 of the Practice Code, I will consider any written objections or submissions received and will then make the appropriate Order.
EXPENSES:
The question of expenses is deferred pending resolution of the Rule 68.1 issue.
May 13, 2005
Eban Bayefsky Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 66 FSCO A04-001700
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ADAM GELLE Applicant
and
TD GENERAL 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:
The parties to this arbitration are hereby notified that I intend to dismiss Mr. Gelle's arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or has been commenced in bad faith.
If either party objects to the dismissal of this proceeding without a hearing, they shall provide the grounds upon which they object, or set out any other issues or concerns, in writing, serve the material on the other party and file it with the Commission within 20 days of the date of this decision.
May 13, 2005
Eban Bayefsky Arbitrator
Date