Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 126
FSCO A05-001140
BETWEEN:
NURUL ISLAM CHOUDHURY
Applicant
and
COACHMAN INSURANCE COMPANY
Insurer
PRE-HEARING DECISION
Before: Elizabeth Nastasi
Heard: July 12, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Jason Hickman for Coachman Insurance Company. Mr. Choudhury did not attend.
Issues:
The Applicant, Nurul Islam Choudhury, was injured in a motor vehicle accident on August 4, 2002. He applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Choudhury applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
On July 12, 2006, Coachman brought a motion to dismiss Mr. Choudhury's arbitration without a hearing. The grounds for Coachman's motion were that Mr. Choudhury had failed to comply with the April 21, 2006 Order of Arbitrator Wilson which required him to advise the Commission of his intention to proceed with his arbitration. Coachman relied on Rules 67 and 68 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003) in support of this motion.
The issues are:
- Should Mr. Choudhury's arbitration be dismissed without a hearing on the grounds that the proceeding is frivolous, vexatious or has been made in bad faith, pursuant to Rule 68.1 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003)?
Result:
The parties to this arbitration are hereby notified that I intend to dismiss Mr. Choudhury's arbitration without a hearing on the grounds that it is frivolous, vexatious or has been made in bad faith pursuant to Rule 68.1 and 68.2 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003).
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:
On April 21, 2006, Arbitrator Wilson heard a motion brought by Mr. Choudhury's solicitors, Howie, Sacks & Henry LLP, seeking to have their firm removed as the solicitors of record. Mr. Choudhury did not attend on the motion. Attempts were made to contact Mr. Choudhury, however, the last telephone number he had provided was disconnected. Mr. Choudhury had been served with a Notice of Motion on April 4, 2006 to his last known address. Counsel for Howie, Sacks & Henry LLP advised that none of the correspondence sent to this address had ever been returned. The motion proceeded in his absence.
In his April 21, 2006 Order, Arbitrator Wilson removed Howie, Sacks & Henry LLP as the solicitors of record. Arbitrator Wilson's Order also stated:
... 2. Given Mr. Choudhury's failure to participate in this motion, and in the arbitration proceedings generally to date, he shall have 30 days from today to notify the Commission in writing if he intends to proceed with his arbitration.
Should Mr. Choudhury advise of his intention to continue within the above time limit he should be prepared to proceed with the scheduled pre-hearing on Wednesday, July 12, 2006 at the offices of the Financial Services Commission.
In the event that Mr. Choudhury fails to proceed promptly with this arbitration, then the Insurer will be permitted to bring forward its motion to dismiss the Application for Arbitration following the expiry of the 30 days given to Mr. Choudhury to advise the Commission. I note that Mr. Rioux, former counsel for the Insurer, first gave notice of this motion on October 14, 2005.
There has been no response by Mr. Choudhury to either the Commission or the Insurer to advise whether he intends to proceed with the arbitration. Pursuant to Arbitrator Wilson's April 21, 2006 Order, Coachman brought a motion to dismiss the arbitration without a hearing with the required notice given to Mr. Choudhury.
The motion record and supporting affidavit was served on Mr. Choudhury at his last address of record in accordance with Rule 7.1 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003).
I find that Mr. Choudhury has been provided with proper notice at each step in this proceeding. I find that Mr. Choudhury has repeatedly failed to respond to any of the Notices he has received. All of the Notices were sent to Mr. Choudhury's last known address and none of the materials sent to that address have ever been returned. Further, Mr. Choudhury did not contact the Commission, his former solicitor or the Insurer to advise of a change of address.
The following is a summary of the notice Mr. Choudhury has received:
The April 4, 2006 Notion of Motion for the removal of his Solicitor sent to Mr. Choudhury clearly states that if he or his representative did not attend, the Arbitrator could dispose of the motion in his absence and that he would not be entitled to any further notice. Mr. Choudhury did not attend on this motion and could not be contacted.
The April 21, 2006 Order of Arbitrator Wilson noted that Mr. Choudhury had 30 days to advise the Commission as to whether he planned to proceed with his arbitration and failure to do so would allow Coachman to bring a motion to dismiss the Application for Arbitration without a hearing. Mr. Choudhury has made no attempts to contact the Commission.
On June 23, 2006, Coachman served Mr. Choudhury with a Notice of Motion to dismiss his Application for Arbitration. The motion was scheduled for July 12, 2006. Mr. Choudhury was also sent a Notice of a Re-scheduled Pre-Hearing Discussion for July 12, 2006 at 2:00. Mr. Choudhury did not attend. Attempts were made to contact him but the cell phone number on file had recently been assigned to someone else.
Rule 68 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003) (which emanates from section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended) sets out the procedure applicable to the dismissal of proceedings without a hearing.
Rule 68.1 and 68.2 state:
68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.
68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.
Coachman requested that I issue an Order dismissing the case immediately and took the position that the Order made by Arbitrator Wilson on April 21, 2006 satisfied the "written notice" requirement set out in Rule 68.2. Further, Coachman argued that by allowing them to bring a motion to dismiss the arbitration, Arbitrator Wilson's Order implied that the dismissal would be automatic and no additional notice was required.
Although the April 21, 2006 Order does set out a 30-day deadline for Mr. Choudhury to advise the Commission of his intention to proceed, it does not clearly state that failure to do so would result in an automatic dismissal of his arbitration. Further, the April 21, 2006 Order does not make reference to Rule 68 or the grounds set out specifically in Rule 68.1. The order was the result of a motion brought by Mr. Choudhury's solicitors at the time seeking to be removed from the record and not a motion to dismiss the arbitration without a hearing. I find that Rule 68.2 requires an adjudicator to give clear written notice to the Applicant and that the April 21, 2006 Order does not satisfy this requirement for the reasons set out above.
Mr. Choudhury has for reasons unknown abandoned his arbitration but has declined to advise Coachman or the Commission. In my view, it would be unreasonable to require Coachman to proceed further with this matter in the absence of any clear indication from Mr. Choudhury that he wishes to proceed with his arbitration.
The parties to this arbitration are hereby notified that I issue notice, pursuant to Rule 68.2 of the Code of an intention to dismiss Mr. Choudhury's arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or had been made in bad faith. I note that this approach has been taken in a similar case, Gelle and TD, (FSCO A04-001700, May 13, 2005)
Pursuant to Rule 68.3 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003), should Mr. Choudhury or Coachman 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:
Coachman did not make any submissions with respect to expenses at the motion. Coachman may make submissions on the issue of expenses in accordance with Rule 79 of the Dispute Resolution Practice Code, (Fourth Edition-Updated October 2003).
July 28, 2006
Elizabeth Nastasi Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 126
FSCO A05-001140
BETWEEN:
NURUL ISLAM CHOUDHURY
Applicant
and
COACHMAN 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. Choudhury's arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or had been made in bad faith.
If either party objects to the dismissal of this proceeding without a hearing or wish to make submissions on this matter, 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.
July 28, 2006
Elizabeth Nastasi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.