REASONS FOR DECISION

Before: Richard Feldman

Issues:

The Applicant, Kevin Lecky-Stewart, was allegedly injured in a motor vehicle accident on January 6, 2004. He applied for and received statutory accident benefits from TTC Insurance Company Limited (“TTC”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Lecky-Stewart applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Should the Commission dismiss this Application, pursuant to Rule 68 of the Dispute Resolution Practice Code (the "Code"), as being vexatious?

Result:

This Application is dismissed.

EVIDENCE AND ANALYSIS

The pre-hearing discussion was scheduled to take place on May 7, 2007. The Applicant’s solicitor, Mr. Comella, brought a motion returnable on May 7, 2007 seeking permission to remove himself as solicitor of record for the Applicant because of a breakdown in the solicitor-client relationship. Mr. Comella had given the Applicant oral and written notice in advance that he would be making this request. The Applicant appeared before me on May 7, 2007. Neither the Applicant nor the TTC objected to Mr. Comella being removed from the record as counsel for the Applicant. Mr. Comella handed to the Applicant his complete file and I granted Mr. Comella’s motion.

Mr. Lecky-Stewart then provided to me his current address and telephone number and requested at least a couple of months to retain a new representative. On consent and in the presence of both parties, the pre-hearing conference was adjourned to September 28, 2007 at 10:00 a.m. at the offices of the Financial Services Commission. A confirming letter was mailed by the Commission to Mr. Lecky-Stewart at the address he had provided to me.

On September 28, 2007, the Applicant failed to attend before me, although I waited until 10:30 a.m., for him to appear. Ms. Priday, counsel for the TTC was present.

Based upon the Applicant’s inability to proceed with the pre-hearing conference on May 7, 2007 and his failure to attend the pre-hearing conference on September 28, 2007, the TTC requested that this Application be dismissed on the grounds that it is vexatious. The TTC also indicated that it will be seeking its expenses related to this proceeding.

Pursuant to Rule 68.1 of the Dispute Resolution Practice Code, an arbitrator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

Pursuant to Rules 68.2 and 68.3 of the Code, I wrote a letter to the Applicant dated September 28, 2007, advising him that I was considering dismissing this Application as being vexatious and providing him with 20 days in which to serve on Ms. Priday and the Commission written submissions with respect to the grounds, if any, upon which he objected to the dismissal of this Application or setting out any other issues or concerns.

As of the date of this order, I have received no written submissions from the Applicant nor is there evidence that he has otherwise attempted to communicate with the Commission.

It appears that the Applicant has abandoned this Application and it would be unfair to require the TTC to proceed further in its Response to this Application. The proceeding has become vexatious and ought not to be allowed to proceed further. For these reasons, I shall dismiss this application in accordance with Rule 68 of the Dispute Resolution Practice Code.

EXPENSES

The TTC has indicated that it may be seeking an order for its expenses related to this proceeding. The TTC may request a determination of its entitlement to its expenses and the appropriate amount of expenses in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 1, 2007

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2007 ONFSCDRS 212 FSCO A06-001490

BETWEEN:

KEVIN LECKY-STEWART Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

This Application is dismissed.
The Respondent may request a determination of its entitlement to its expenses and the appropriate amount of expenses in accordance with Rule 79 of the Dispute Resolution Practice Code.