Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 100

FSCO A05-001245

BETWEEN:

VINCENZO CARERE

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before: Maggy Murray

Heard: April 17, 2007 by written submissions

Appearances: Neither Mr. Carere or his representative, Gino Isabella, participated Jamie Pollack for Coachman Insurance Company

Issues:

The Applicant, Vincenzo Carere, claimed that he was injured in a motor vehicle accident on November 26, 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. Carere applied for arbitration at the Financial Services Commission of Ontario ("the Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues are:

Should this arbitration be dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code - Fourth Edition (" the Code") because it is frivolous, vexatious or was commenced in bad faith?

Result:

This arbitration is dismissed pursuant to Rule 68.1 of the Code.

EVIDENCE AND ANALYSIS:

Background

The relevant facts are outlined in my decision dated January 26, 2007 and summarized below.

At the first pre-hearing before another arbitrator on January 17, 2006, Mr. Carere was not in attendance, although his representative Mr. Isabella was, as was Mr. Pollack, legal counsel, who represented Coachman. The parties advised that they reached a settlement of this matter at the first pre-hearing.

On July 28, 2006, Coachman requested a resumption of the pre-hearing in order to set an arbitration hearing date because Mr. Carere did not execute the settlement documents although he cashed the settlement cheque that was inadvertently forwarded to him.

By letter dated December 20, 2006, the parties were advised by the Commission that a resumption of the pre-hearing would take place on January 19, 2007 at 2:00 p.m. by telephone conference. This notice was sent to Mr. Carere's last known address and was not returned to the Commission. Neither Mr. Carere or Mr. Isabella contacted the Commission to advise of a change in address.

At the resumption of the pre-hearing on January 19, 2007, Mr. Isabella did not respond to a telephone call made by me to his office at 2:00 p.m. and I left a voice-mail message asking him to return my telephone call. As of 4:00 p.m. on January 19, 2007, Mr. Isabella had not returned my telephone call. I was unable to contact Mr. Carere by telephone at the home telephone number listed on the Application for Arbitration and was advised by the person who answered the telephone that there is no one by his name at that number.

At 2:30 p.m. on January 19, 2007, Coachman requested that I issue a notice, pursuant to Rule 68.2 of the Code to "all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1" (specifically, that the proceeding is "frivolous, vexatious or is commenced in bad faith").

My pre-hearing decision dated January 26, 2007 sent from the Commission to the Applicant's last known address was returned to the Commission by Purolator courier stamped "unclaimed". Pursuant to Rule 9.1(c) of the Code, a party is obliged to advise the Commission in writing of any change of address, and the Commission is entitled to rely on the last known address contained its records. Mr. Carere has not notified the Commission of any change of address. I am satisfied that the Commission was entitled to rely on Mr. Carere's last known address as contained in its records, which was the address to which all correspondence was previously sent.

There was no response from Mr. Carere since the release of my prior decision which constituted the required Notice pursuant to Rule 68.2 of the Dispute Resolution Practice Code.

My January 26, 2007 Order further stated:

If either party objects to the dismissal of this proceeding without a hearing, they shall provide the grounds upon which they object to the dismissal of the proceeding, 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. Mr. Carere has for reasons unknown abandoned his arbitration. In the absence of any explanation for his conduct I find that this arbitration is frivolous and vexatious. I therefore find that the proceeding is frivolous and commenced in bad faith. Mr. Carere's arbitration is hereby dismissed without a hearing in accordance with Rule 68.1 of the Code.

EXPENSES:

If the parties are unable to agree on the issue of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Code.

May 22, 2007

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario