Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 68
FSCO A04-001076
BETWEEN:
BASSAM MASRI
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Richard Feldman
Heard: March 27, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Tally Vanounou for Mr. Masri
Carla Falkeisen for Wawanesa Mutual Insurance Company
The Applicant, Bassam Masri, applied for statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule1 as a result of injuries sustained by Mr. Masri as a result of a motor vehicle accident on August 5, 2003. Disputes arose between the parties and Mr. Masri applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The hearing of this matter commenced on July 11, 2005. Before any evidence was introduced the parties chose to engage in settlement discussions. Differences arose between Mr. Masri and his then counsel, David Derfel, and the Arbitrator was informed by Mr. Derfel that the Applicant terminated his retainer (see the letter of Arbitrator Alves, dated July 11, 2005).
At the request of Mr. Masri, the hearing was adjourned. The hearing was then set to recommence on September 19, 2005. On September 14, 2005, the Commission assisted the parties in engaging in a settlement discussion by teleconference. Mr. Masri represented himself. Ian Kirby represented the Insurer. At the conclusion of that discussion, it appeared to the Commission that a settlement had been achieved, subject to compliance with the Expense Regulation. Consequently, the hearing scheduled for September 19, 2005 was cancelled and the Commission closed its file.
After receiving the Settlement Disclosure Notice, Mr. Masri decided he was no longer willing to settle upon the terms discussed on September 14, 2005 and felt that since he had not signed the Settlement Disclosure Notice or Release, the settlement never actually took effect. The evidence suggests that he did not explicitly communicate this to counsel for Wawanesa until late 2005 (after September 2005) or early 2006.
In January 2006, counsel for Wawanesa advised the Commission that a dispute had arisen between the parties concerning whether or not a binding settlement had been achieved. Wawanesa then brought this motion for an order confirming the terms of the settlement, dismissing the Application for Arbitration and for its costs of this motion. The grounds for the motion set out in the Notice of Motion are that the parties had reached a settlement on September 14, 2005 and Rule 34 of the Dispute Resolution Practice Code.
This motion was heard on March 27, 2006. At the outset of the hearing, counsel for Wawanesa indicated that Wawanesa would no longer be arguing that a binding settlement had been reached by the parties2 but argued that this Application ought to be dismissed in any event because of delay caused by the Applicant and because the proceeding is frivolous or vexatious. In the alternative, Wawanesa sought an order:
Setting a new date for the hearing and making that date peremptory upon the Applicant;
That the Applicant pay the Insurer's costs "thrown away" in preparing for and attending before the Commission on July 11, 2005;
That the Applicant pay the Insurer's costs of this motion; and
That "pre-judgement" interest be waived for some period of time to reflect the delay in the proceedings caused by the Applicant and/or his representative.
The Applicant agreed that a new date should be set for the hearing but opposed all other relief requested by the Insurer. The Applicant requested his costs of this motion.
My decision was announced orally at the conclusion of the motion.
Based upon that evidence filed by the parties with respect to this motion, I find that the Insurer has failed to prove that the conduct of the Applicant merits a dismissal of his application.
With respect to the Insurer's costs "thrown away" in preparing for and attending before the Commission on July 11, 2005, Arbitrator Alves has already ordered in her letter of July 11, 2005 that this is an issue to be decided by the hearing arbitrator.
With respect to the dates for the continuation of the hearing, counsel for the Insurer stated that her firm did not have any dates available until May 2007 and the parties agreed that the hearing should take place on May 14, 15, 16 and 17, 2007. Given the fact that the hearing has already been cancelled twice as a result of the conduct of the Applicant or his representatives, these dates are peremptory upon the Applicant. I explained to the Applicant that this means that the hearing shall proceed as scheduled, whether or not he is ready to proceed, whether or not he is represented and whether or not he has retrieved his file from his former representatives.
With respect to the issue of the expenses of this motion and waiver of interest, I find that those are matters best determined as part of the hearing on the merits of this application and they are therefore deferred to the hearing arbitrator.
May 9, 2006
Richard Feldman Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 68
FSCO A04-001076
BETWEEN:
BASSAM MASRI
Applicant
and
WAWANESA MUTUAL 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 Commission's file is hereby re-opened and the hearing of this Application for Arbitration shall be held on May 14, 15, 16 and 17, 2007, commencing at 10:00 a.m., at the offices of the Financial Services Commission of Ontario, 5160 Yonge Street, 14th Floor, North York, Ontario. These dates are peremptory upon the Applicant.
May 9, 2006
Richard Feldman Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Counsel for Wawanesa stated that Wawanesa was now and forever waiving its right to assert that there was in fact a settlement between the parties as a result of the September 14, 2005 settlement discussion.