Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 206
FSCO A05-002507
BETWEEN:
NATALIA NIKITINA
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
DECISION ON A MOTION
Before:
David Muir
Heard:
December 8, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Natalia Nikitina did not appear
Harold Sterling for Motor Vehicle Accident Claims Fund
Nureen Shariff for Mazin & Rooz, Barristers and Solicitors
Background:
The Applicant, Natalia Nikitina, claims to have been injured in a motor vehicle accident on December 11, 2004. She applied for statutory accident benefits from Motor Vehicle Accident Claims Fund ("MVAC Fund"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Nikitina applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Since applying for arbitration Ms. Nikitina has not participated in the process.
Issues:
The issues in this pre-hearing are:
A Motion for an Order removing Mazin & Rooz, Barristers and Solicitors as solicitor of record for Ms. Natalia Nikitina.
A Motion by MVAC Fund for an Order dismissing the arbitration proceeding, with expenses, pursuant to Rule 67 and 68 of the Dispute Resolution Practice Code, Fourth Edition - Updated October 2003.
Result:
Mazin & Rooz, Barristers and Solicitors are removed as solicitor of record for Ms. Natalia Nikitina pursuant to Rule 9.8 of the Dispute Resolution Practice Code, Fourth Edition - Updated October 2003.
The arbitration of Ms. Natalia Nikitina is dismissed, with expenses, pursuant to Rules 67 and 68 of the Dispute Resolution Practice Code, Fourth Edition - Updated October 2003.
EVIDENCE AND ANALYSIS:
These related Motions were brought on by Mazin & Rooz and MVAC Fund respectively as a consequence of Ms. Nikitina's apparent abandonment of the arbitration after commencing it in September 23, 2005.
In support of its Motion, Mazin & Rooz filed the affidavit of Dimple Verma a solicitor with Mazin & Rooz. Ms. Nikitina has failed to appear at either of the initial or resumed pre-hearing in this matter. She has failed to respond to correspondence or telephone calls from her solicitors. A Canada 411 search indicates that Ms. Nikitina may have moved and not provided updated contact information. Notices of Pre-hearing mailed from the Commission have not been returned. MVAC Fund served Ms. Nikitina at her last known address by regular and registered mail, with Notice of its Motion to Dismiss.
MVAC Fund took no position with respect to the Order sought by Mazin & Rooz.
I am satisfied based on the material submitted that Ms. Nikitina has effectively ended the retainer with Mazin & Rooz by failing to provide instructions at any stage of this proceeding subsequent to the application for arbitration. Accordingly, I Order that Mazin & Rooz be removed from the record effective December 8, 2006.
MVAC Fund in seeking a dismissal of the arbitration relied upon the material filed by Mazin & Rooz in its motion, as well as Ms. Nikitina's non-response to the material it served on her in support of its Motion.
Rule 68 provides that an arbitrator may dismiss an arbitration without a hearing where the proceeding is frivolous, vexatious or was commenced in bad faith. I am prepared to find that an arbitration abandoned after being commenced is both frivolous and vexatious and do so in this particular circumstance. This Order was made at the hearing and is confirmed.
EXPENSES:
MVAC Fund sought its expenses of the arbitration to date and submitted a Bill of Costs in support of its claim. I find that MVAC Fund is entitled to its reasonable expenses of the arbitration and having regard to the Bill of Costs as submitted and the maximum rate to which it is entitled to under the Regulation.2 I find that an expense award of $1,000 is reasonable.
December 22, 2006
David Muir
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 206
FSCO A05-002507
BETWEEN:
NATALIA NIKITINA
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mazin & Rooz, Barristers and Solicitors are removed as solicitor of record for Ms. Natalia Nikitina pursuant to Rule 9.8 of the Dispute Resolution Practice Code, Fourth Edition - Updated October 2003.
The arbitration of Ms. Natalia Nikitina is dismissed, with expenses in the amount of $1,000, pursuant to Rules 67 and 68 of the Dispute Resolution Practice Code, Fourth Edition - Updated October 2003.
December 22, 2006
David Muir
Arbitrator
Date