Neutral Citation: 2006 ONFSCDRS 91

FSCO A05-000497

BETWEEN:

LORNE PAPPETTI

Applicant

and

MARKHAM GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran

Heard: May 19, 2006, by teleconference at the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Pappetti was unavailable

Edmund Kent for Markham General Insurance Company

Issues:

The Applicant, Lorne Pappetti, was involved in a motor vehicle accident on April 5, 2002. He applied for statutory accident benefits from Markham General Insurance Company ("Markham"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Pappetti applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Shall Mr. Pappetti's application for arbitration be dismissed?

Result:

Mr. Pappetti's application for arbitration shall be deemed withdrawn.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion was held before me on February 9, 2006 at 2:30 p.m. by telephone conference call arranged by the Financial Services Commission of Ontario. Mr. Pappetti participated. However, he was unrepresented at the pre-hearing discussion. Prior to the pre-hearing discussion, Mr. Pappetti's former counsel, Sullivan-Mahoney, brought a motion to remove themselves as Mr. Pappetti's solicitors of record. I issued an order removing the firm as Mr. Pappetti's solicitors of record.

With the consent of the parties, I scheduled a motion hearing for Friday, May 19, 2006 at 10:00 a.m. by telephone conference call. Markham put Mr. Pappetti on notice that if he had not obtained leave from the court to proceed by the date of the motion hearing, Markham would be seeking an order pursuant to Rule 68.1 of the Dispute Resolution Practice Code, that Mr. Pappetti's application should be dismissed as frivolous, vexatious or commenced in bad faith. Mr. Pappetti undertook, prior to the date of the hearing, to retain new counsel and have his counsel obtain leave from the court to proceed with his application for arbitration, given that Markham General is in receivership.

On May 19, 2006, I telephoned Mr. Pappetti at 10:00 a.m. and was unable to reach him.

I attempted to call him on two more occasions and was unsuccessful. I left my name, number and the reason for my call on his answering machine.

The Notice of Hearing which was forwarded to the parties contains the language of subsection 7(1) of the Statutory Powers Procedure Act². Subsection 7(1) states:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

Consequently, I proceeded with the motion hearing in Mr. Pappetti's absence.

Markham argued for the dismissal of Mr. Pappetti's claim pursuant to Rule 68.1 of the Dispute Resolution Practice Code (DRPC). Rule 68.1 states:

Subject to Rule 68.1, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

Rule 68.3 of the DRPC states:

Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

(a) provide the grounds upon which the party objects to the dismissal of the proceeding or set out any other issues or concerns, in writing;

(b) serve the material upon the other parties and file it within 10 days of the date of the notice provided under Rule 68.1.

Alternatively, Markham submitted that, as Mr. Pappetti had considerable notice of the motion and chose not to object to the dismissal of the proceeding as set out in Rule 68.3, his application for arbitration should be treated as a deemed withdrawal. Rule 70.2 states that an adjudicator may permit a party to withdraw all or part of a dispute where all parties agree. Under Rule 70.3, where a party does not agree to the withdrawal, an adjudicator may permit the withdrawal on such terms and conditions as the adjudicator considers just. Markham did not seek the imposition of any terms or conditions.

The evidence before me does not support a decision under Rule 68.1 that Mr. Pappetti's application was submitted in bad faith or that his claim is frivolous or vexatious. However, I find that Mr. Pappetti's application should be deemed withdrawn under Rule 70. It appears that although Mr. Pappetti had participated in the dispute resolution process to the pre-hearing discussion stage, he did not attend the motion hearing after receiving notice. Due to Mr. Pappetti's non-attendance, no submissions were provided on his behalf objecting to the dismissal of his application. Also, Mr. Pappetti has failed to contact the Financial Services Commission since the date of the motion hearing. In this fashion, Mr. Pappetti failed to pursue his claim for benefits.

A deemed withdrawal of Mr. Pappetti's application achieves the objective of Rule 1.1 of the DRPC which provides that the rules must be interpreted to produce the most just, quickest and least expensive resolution of the dispute. Consequently, I find that Mr. Pappetti's application shall be deemed withdrawn.

EXPENSES:

I remain seized with respect to the issue of expenses.

June 2, 2006

Judith Killoran

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario