Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 37

FSCO A04-000156

BETWEEN:

TAOUFIK BOUCHAHMA

Applicant

and

AVIVA CANADA INC.

Insurer

MOTION TO DISMISS

Before:

Beth Allen

Heard:

January 16, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Bouchahma did not attend, nor did a representative on his behalf

Deanna Stea for Aviva Canada Inc.

The Applicant, Taoufik Bouchahma, was injured in a motor vehicle accident on October 7, 2002. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In his Application for Arbitration dated January 21, 2004, the Applicant claimed entitlement to income replacement, education, and housekeeping and home maintenance benefits, interest and arbitration expenses. Aviva also sought its arbitration expenses. The Applicant failed to attend two pre-hearing discussions and did not appear at the arbitration hearing. Aviva moved to dismiss the arbitration on the basis of the Applicant's failure to substantiate his accident benefit claims.

The issues in this motion are:

Is Aviva entitled to the dismissal of the Applicant's Application for Arbitration?
Is Aviva entitled to arbitration expenses in the amount of $1,500.00 pursuant to subsection 282(11) of the Insurance Act?

The arbitration application is dismissed.
Aviva is entitled to its arbitration expenses fixed at $500.00 inclusive of G.S.T..

Background:

The Applicant filed an application for arbitration on January 26, 2004. Although served with Notices of Pre-hearing, he failed to attend the two scheduled pre-hearing discussions, one arranged for November 30, 2004, and a resumption arranged for April 15, 2005. Mr. Muslim, the Applicant's then counsel, attended the November 30, 2004 pre-hearing and attempted to contact the Applicant, by telephone, regarding his non-attendance. However, he failed to reach the Applicant. At that pre-hearing, Mr. Muslim and Ms. Shea narrowed the issues in dispute. The Applicant claimed income replacement benefits of $400.00 per week from October 14, 2002 to April 11, 2003 and at $168.00 per week from April 14, 2003 to October 7, 2004; education expenses in the amounts of $748.90 and $434.98; housekeeping from January 1, 2003 to January 6, 2004; interest on overdue amounts; and his arbitration expenses. At the initial pre-hearing, Mr. Muslim withdrew the Applicant's special award claim. Aviva also sought its expenses. A date for a resumption of the pre-hearing was scheduled for April 15, 2005.

By letter dated April 5, 2005, sent to the residential address he provided at 4854 Bathurst Street, Apt. #607, Toronto ON M2R 1X3, the Commission advised the Applicant that the Superior Court of Justice of Ontario, by order dated March 22, 2005, had appointed the Law Society of Upper Canada as the trustee of Mr. Muslim's law practice. The Commission requested that the Applicant give notice within ten days as to whether he intended to appoint a new representative for the arbitration hearing or proceed without a representative. The Applicant did not contact the Commission.

Neither the Applicant nor a representative on his behalf attended the April 15, 2005 pre-hearing resumption. Ms. Stea attended on behalf of Aviva and the arbitration hearing was scheduled for January 16 to 19, 2006. A Notice of Hearing, dated April 18, 2005, was sent to the Applicant at Apt.#607, 4854 Bathurst Street, Toronto ON M2R 1X3, the last known address provided by the Applicant. Under Rule 9.1(c) of the Dispute Resolution Practice Code (updated October 2003) the Dispute Resolution Group is entitled to rely on the last known address of a party. That Notice did not return to the Commission undelivered.

On January 5, 2006, Ms. Stea's office provided the Case Administrator on the file with an updated residential address for the Applicant, Unit 11, 1808 Eglinton Avenue West, Toronto ON M6E 1H6. The Case Administrator therefore re-sent the Commission's April 5, 2005 letter to the Applicant by overnight courier to the updated address on January 9, 2006. It appears from information provided by the Case Administrator that the courier service, for reasons that are unclear, was unable to deliver the letter to the Applicant.

Neither the Applicant nor a representative on his behalf attended the arbitration hearing on January 16, 2006. Ms. Stea therefore moved to dismiss the Applicant's claims. I decided to hear submissions from Aviva on the motion, but to reserve my decision to allow the Applicant an opportunity to be heard. I decided to approach the matter cautiously due to possible confusion of the Applicant as a result of the circumstances of Mr. Muslim's law practice, and the fact that it is unclear whether the Applicant received the couriered letter sent on January 9, 2006. On January 16, 2006, a letter was sent by the Commission to the Applicant's updated residential address by both overnight courier and regular mail. In this letter, I gave the Applicant 30 days from the date of that letter to contact the Case Administrator to schedule a date for any submissions he might wish to make on the motion to dismiss.

Both the letter sent by courier and the one sent by regular mail were returned to the Commission, on February 1, 2006 and January 19, 2006 respectively, both undelivered. The Applicant did not otherwise contact the Commission within the 30-day time limit provided in my January 16, 2006 letter. I therefore arrive at my decision in this matter after considering Ms. Shea's submissions and reviewing the documents in the Commission's file.

Dismissal:

Ms. Stea submitted that because the Applicant failed to participate in the arbitration process in any meaningful way after filing his Application for Arbitration, his application should be dismissed. Ms. Stea further argued that the Applicant failed to meet the burden to prove his claims for income replacement, education, housekeeping and home maintenance benefits and his arbitration expenses.

I reviewed the documents in the Commission's file² none of which were entered into evidence. Ms. Stea submitted that the Applicant failed to call any evidence to support his claims and to produce relevant documentation such as: complete information from his employer pertinent to his income replacement claim; full documentation of his claim for education expenses; evidence to support his need for the housekeeping services reflected by the invoices; and evidence to support his claim for arbitration expenses.

I agree with Ms Stea's submissions. I find the Applicant failed to produce evidence to substantiate any of his claims. He failed to show any interest in the pre-arbitration process and to attend the hearing, in spite of the many attempts by the Commission to contact and notify him. Under these circumstances, I find I must dismiss the arbitration.

EXPENSES:

I decline to order the Applicant his expenses as he provided no support for his claim. Aviva requests that the Applicant pay its arbitration expenses of $1,500.00. Due to the Applicant's and Mr. Muslim's failure to attend two pre-hearing discussions and to engage fully in the production process, I find the time spent by Aviva's counsel in these aspects of the process would be limited by those circumstances. Similarly, Aviva's hearing preparation time would be minimal, as was the time for the hearing itself, due to the Applicant's lack of involvement. In these circumstances, I award Aviva its expenses fixed at $500.00 inclusive of G.S.T.

March 3, 2006

Beth Allen Arbitrator

Date