Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 11

FSCO A05-001245

BETWEEN:

VINCENZO CARERE

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before:

Maggy Murray

Heard:

By telephone conference call on January 19, 2007.

Appearances:

Neither Mr. Carere or his representative, Gino Isabella, participated

Jamie Pollack for Coachman Insurance Company

The Applicant, Vincenzo Carere, claimed that he was injured in a motor vehicle accident on November 26, 2002. He applied for 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 issue is:

Should I exercise my discretion to give written notice to the parties, pursuant to Rule 68.2 of the Dispute Resolution Practice Code - Fourth Edition ("the Code"), of my intention to dismiss the arbitration on the grounds set out in Rule 68.1 of the Code?

The parties to this arbitration are hereby notified that I intend to dismiss Mr. Carere's arbitration without a hearing on the grounds that it is frivolous, vexatious or was commenced in bad faith pursuant to Rules 68.1 and 68.2 of the Code. 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.

Rule 68 of the "Code"² sets out the procedure for dismissing a proceeding without a hearing. Rule 68.1 and 68.2 state:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

Background

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").

The parties to this arbitration are notified, pursuant to Rule 68.1 of the Code, that I may dismiss the proceeding without a hearing if satisfied that it is frivolous, vexatious or was commenced in bad faith.³

Pursuant to Rule 68.3 of the Code, should Mr. Carere or Coachman object to the dismissal of this arbitration without a hearing or wish to make submissions on this matter, they must provide the grounds upon which they object, 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. Pursuant to Rule 68.4 of the Code, I will consider any written objections or submissions received and will then make the appropriate Order.

EXPENSES:

Coachman did not address expenses of this proceeding. 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.

January 26, 2007

Maggy Murray Arbitrator

Date