Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 180

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.

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) (the "Code")?
Is Coachman entitled to its expenses incurred in respect of this arbitration hearing?

Result:

Mr. Choudhury's arbitration is dismissed.
Coachman is entitled to its reasonable expenses of this proceeding. Coachman may make submissions with respect to the quantum of those expenses in accordance with the provisions of Rule 79 of the Code.

EVIDENCE AND ANALYSIS:

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 Code in support of this motion.

In my Order of July 28, 2006 I notified the parties to this arbitration that I intended 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.

The full background to the current decision is set out in my Pre-Hearing Decision dated July 28, 2006. In that decision, I found that a number of attempts had been made to contact Mr. Choudhury by both his former solicitor and the Financial Services Commission of Ontario and to afford him a full opportunity to proceed with his arbitration. There has been no response from Mr. Choudhury.

The July 28, 2006 Order further stated that:

... 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.

I did not receive any submissions on this matter. I therefore find that the proceeding is frivolous and commenced in bad faith. Mr. Choudhury's arbitration is hereby dismissed without a hearing in accordance with Rule 68.1 of the Code.

EXPENSES:

Given my finding that this proceeding is frivolous and commenced in bad faith and should be dismissed without a hearing, I find that Coachman is entitled to its reasonable expenses.

Coachman may make submissions with respect to the quantum of those expenses in accordance with Rule 79 of the Code.

November 14, 2006

Elizabeth Nastasi Arbitrator

Date