Neutral Citation: 2005 ONFSCDRS 90
FSCO A04-001700
FINANCIAL SERVICES COMMISSION OF ONTARIO
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 General"), 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 in this hearing are:
Should Mr. Gelle's arbitration be dismissed without a hearing on the grounds that the proceeding is frivolous, vexatious or has been commenced in bad faith, pursuant to Rule 68 of the Dispute Resolution Practice Code?
Is TD General entitled to its expenses of the proceeding, pursuant to Rule 75 of the Dispute Resolution Practice Code?
Result:
Mr. Gelle's arbitration is dismissed.
TD General is entitled to its reasonable expenses of the proceeding. TD General 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.
EVIDENCE AND ANALYSIS:
The pre-hearing conference in this matter commenced on April 5, 2005. It resumed on May 6, 2005. The full background to the current decision is set out in my initial pre-hearing decision, dated May 13, 2005. In that decision, I indicated that a number of attempts had 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. I noted, however, that Mr. Gelle had been completely unresponsive and appeared to have abandoned his arbitration. I found that 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 wished to proceed with his arbitration. I, therefore, issued 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 further issued the following order:
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.
The Commission sent this decision to Mr. Gelle by courier. On May 26, 2005, the courier service returned the envelope to the Commission as having been unclaimed by Mr. Gelle. Mr. Gelle has not notified the Commission of any change in address. None of the other correspondence to Mr. Gelle has been returned to the Commission. Mr. Gelle did not respond to the only telephone message that could be left for him on his answering machine. In all of the circumstances, I find that Mr. Gelle has received proper notice of these proceedings and that he has continued to ignore the Commission's attempts to contact him and to advise him of the steps to follow in pursuing his arbitration.
I find that, despite the difficulties discussed in my earlier decision concerning Mr. Gelle's previous representative, Mr. Mohammed Muslim, Mr. Gelle has, himself, chosen not to pursue his arbitration. I, therefore, find that the proceeding is frivolous and should be treated as having been abandoned. I see no basis on which to proceed further with this matter. Mr. Gelle's arbitration is hereby dismissed without a hearing.
EXPENSES:
In my previous decision, I indicated that the question of expenses would be deferred pending resolution of the Rule 68 issue. By letter dated June 3, 2005, TD General submitted that, if Mr. Gelle had not provided an objection to the dismissal of his arbitration within the time limit set out in my previous order, the arbitration should be dismissed without a hearing pursuant to Rule 68 and "a costs award against Mr. Gelle in favour of [TD General] would be appropriate." Given my finding that this proceeding is frivolous and should be dismissed without a hearing as abandoned, I find that TD General is entitled to its reasonable expenses. TD General 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.
June 24, 2005
Eban Bayefsky
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 90
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:
Mr. Gelle's arbitration is dismissed.
TD General is entitled to its reasonable expenses of the proceeding. TD General 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.
June 24, 2005
Eban Bayefsky
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.