Neutral Citation: 2007 ONFSCDRS 238 FSCO A06-000410

BETWEEN:

TAOUFIK BOUCHAHMA Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON A MOTION

Before: David Muir Heard: November 26, 2007, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Adam Ezer for Mr. Bouchahma Jean-Francois LaBerge for Aviva Canada Inc.

Issues:

The Applicant, Taoufik Bouchahma, was injured in a motor vehicle accident on March 4, 2005. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Bouchahma applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Although described as a preliminary issue hearing this is a Motion brought by Aviva for an Order precluding Mr. Bouchahma from proceeding to arbitration because he has failed to attend a number of assessments, and secondly for an Order dismissing the application for arbitration on the basis that Mr Bouchahma's failure to pay an award of expenses in a prior arbitration amounts to an abuse of process.

The issues are:

Is Mr. Bouchahma precluded from proceeding to arbitration because he failed to attend a series of assessments?
Is Aviva entitled to an Order dismissing the arbitration for abuse of process?

Result:

The Motion is dismissed.

EVIDENCE AND ANALYSIS:

Although established as separate issues as set out above the parties dealt with them of a piece. I will deal with it in that way as well.

The central allegation of Aviva is that Mr. Bouchahma repeatedly failed to attend insurer's examinations thereby depriving it of an opportunity to assess his entitlement to benefits. Additionally, it relies upon his failure to pay an apparently outstanding expense Order from a prior arbitration. Considered together or individually, in Aviva's submission, these failures on Mr. Bouchahma's part amount to an abuse of process for which the remedy ought to be the dismissal of the arbitration.

Mr. Bouchahma relied primarily on the failure of Aviva to prove that he had failed to make himself available for the assessments in question, including making a non-suit motion at the end of Aviva's evidence. I denied the non-suit and the matter proceeded to closing argument. Mr. Bouchahma elected to call no evidence although I allowed certain documents to be introduced.

As indicated, Mr. Bouchahma was injured in an accident in early March 2005. He applied for income replacement benefits, housekeeping and medical benefits. Each of these was paid for periods of time.

Mr. Bouchahma did attend an insurer's examination related to assessing his entitlement to housekeeping and home maintenance benefits in June 2005. Later in respect of a dispute about ongoing medical benefits, Mr. Bouchahma attended a Med-Rehab DAC in September 2005, although this assessment was rescheduled once. Aviva had initially relied upon Mr. Bouchahma's failure to attend this DAC assessment as part of its argument, but as it turns out he did attend it on September 16, 2005.

Mr. Bouchahma did not attend three sets of three assessments on August 16, 19 and 24, 2005; October 17 and 26, 2005; December 19, 2005, January 4 and 10, 2006. These assessments were all said to be for the purpose of assessing his entitlement to income replacement benefits, medical/ rehabilitation benefits, and, non-earner benefits.

Mr. Bouchahma also has failed to satisfy an Order of Expenses made in an earlier proceeding. Although there can be no dispute that an Order of Expenses was made in Bouchahma and Aviva Canada Inc.², the evidence before me is that Aviva has taken absolutely no steps to collect on that Order.

What level of misconduct would amount to an abuse of process in this context? Neither party made submissions on this point.

Whether or not, as submitted by Aviva, the repeated failure to attend assessments could amount to an abuse of process, I leave for another day. However even if theoretically available as a remedy, I have concluded that the evidence tendered by Aviva does not establish that Mr. Bouchahma received notice of the various assessments in issue here.

Mr. Bouchahma moved at some point in July or August 2005. It is clear, even from the limited material put before me that Mr. Bouchahma had communicated the fact that he had moved to Aviva at some point well prior to October 1, 2005 – that is prior to the second set of Notices being sent out. I note for example a letter in evidence, from Aviva to Mr. Bouchahma, dated August 23, 2005 is addressed to his then correct address.

The Med-Rehab DAC in mid-September had his new address and was able to re-schedule its assessment which Mr. Bouchahma attended.

While Aviva relied on the missed August assessments I think it more likely than not that Mr. Bouchahma had moved by the time those notices went out and Aviva had been provided that information. Despite clearly knowing his new address by late August 2005 at the absolute latest the October assessment Notices are addressed to the old address. Courier slips attached to these indicate that they may have been sent by courier to a version of the new address; however the address on the packing slip is incomplete. If the Notices for the December/January assessments were sent at all they were sent to defective addresses as the only evidence in that regard is an incomplete address on a packing slip which may or may not have been attached to a Notice. At the end of the day, there is no indication in the material before me that Aviva managed to send him Notice of any of these three sets of assessments to his correct address.

I also note Aviva's disregard of the provisions of section 68 of the Schedule which sets out, in detail, the various ways in which Notices and other documents ought to be delivered. Nowhere in that section or elsewhere in the Schedule is the delivery of documents by courier contemplated. I also note that while copies of the various Notices were said to be copied to Mr. Bouchahma's representatives by facsimile transmission, there is no evidence that Aviva did so in conformity with section 68(5) of the Schedule. Accordingly its argument that there was constructive Notice fails as well. It might have been possible for Aviva to overcome some of these difficulties with evidence from someone with first hand knowledge of the file between August 1 and early December 2005, however the adjuster handling the matter at that time was not called to give evidence. Ms. Mabraidopoulos who gave evidence took over the file after these events and could only speak to what she would have done and perhaps what should have been done.

There do remain issues around Mr. Bouchahma's attendance for assessments. For example he does appear to have had some kind of Notice of two assessments in May or June 2007. He may have attended one of the two and accordingly there may be consequences for the failure to attend the second. However the apparent failure of Aviva to give timely Notice of most of these assessments seriously undercuts Aviva's position that it ought to be entitled to an Order dismissing the arbitration, a drastic and extraordinary remedy.

As regards the failure to pay an outstanding expense order, I note the following. Firstly, Aviva has taken no steps to collect on the Order. Secondly, Mr. Bouchahma's representative in that earlier matter came to the attention of the Law Society of Upper Canada, his practice was placed under the trusteeship of the Law Society, and as I understand it he was subsequently disbarred. It is an open question whether all of the many applicants represented by this representative were kept aware of their proceedings. Mr. Bouchahma ought to pay the Order. However his failure to do so, having never been asked to satisfy it, can hardly be said to be an abuse of the Commission's processes.

EXPENSES:

There were no submissions on expenses. If the parties had reviewed their files this Motion likely could have been avoided. There were two pre-hearings in this case, where the issues raised here were discussed. The factual disputes such as they were could have been resolved there. Both parties bear their share of fault for that failure. The parties shall bear their own expenses of the Motion.

December 3, 2007

David Muir Arbitrator

Financial Services Commission of Ontario