Arvinder Kaur v. RBC General Insurance Company, 2007 ONFSCDRS 258

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 258

FSCO A07-001202

BETWEEN:

ARVINDER KAUR

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: By written submissions filed by the parties by December 7, 2007.

Appearances: Dev Misir for Mrs. Kaur James V. Leone for RBC General Insurance Company

Background:

The Applicant, Arvinder Kaur, was allegedly injured in a motor vehicle accident on August 8, 2005. She applied for statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ Disputes arose concerning her entitlement to these benefits. The parties were unable to resolve their disputes through mediation and, on June 13, 2007, Mrs. Kaur applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. On or about July 3, 2007, RBC delivered its Response.

A pre-hearing discussion was scheduled to take place at the offices of the Financial Services Commission on November 8, 2007, at 10:00 a.m. Late in the afternoon of November 7, 2007, the Applicant’s counsel wrote to the Commission and to counsel for RBC, advising that "we are withdrawing the Arbitration Application at present."

On November 8, 2007, Ms. Mina Cosolo appeared at the pre-hearing conference on behalf of RBC. Mr. Leone appeared as counsel for RBC. Neither the Applicant nor her counsel (Dev Misir) attended before me on November 8, 2007. Mr. Misir could not be reached by telephone.

Later that day, I wrote to Mr. Misir, advising that the Applicant had failed to comply with the requirements of Rule 70 of the Dispute Resolution Practice Code (the "Code") in that the Applicant had not obtained the consent of RBC or permission from the Commission to withdraw this application. I indicated that I would treat Mr. Misir’s letter of November 7, 2007, as a request on behalf of the Applicant for permission to withdraw this application.

Pursuant to Rule 70.3 of the Code, Mr. Leone requested an opportunity to make written submissions with respect to terms and conditions for such a withdrawal and I set out in my letter of November 8, 2007, a time-frame for the parties to make their written submissions. Having now had an opportunity to review those written submissions, I can now deal with the Applicant’s request for permission to withdraw her application.

Issues:

The issues to be determined are:

What terms and conditions, if any, ought to be imposed if the Applicant is permitted to withdraw this application?
To what expenses, if any, is RBC entitled?

Result:

The Applicant is permitted to withdraw her application without any terms or conditions.
The Applicant shall pay to RBC its expenses of this proceeding, fixed in the sum of $750.00.

ANALYSIS:

Pursuant to Rule 70.3 of the Code, where a party does not agree to the withdrawal, an adjudicator may permit the withdrawal on such terms and conditions as he or she considers just and may award expenses to either party as permitted by Rule 75 (and following).

RBC has submitted that, if the Applicant is permitted to withdraw her application, the following terms should be imposed:

The Applicant shall pay RBC’s expenses in the amount of $1,111.38;
The Applicant shall pay RBC it’s assessment fee of $3,000.00;
The Applicant shall be precluded from commencing a further Application for Arbitration with respect to the issues raised in this application; and
The Applicant shall pay RBC all amounts she claimed in this application.

With respect to the last term requested by RBC, RBC has provided no explanation as to why it would be fair, reasonable or within my jurisdiction to order the Applicant to pay to RBC accident benefits that she never received from RBC. This is not a claim for repayment of benefits. Rather, RBC appears to simply be asking that the Applicant pay to RBC whatever amounts she was claiming from RBC. I decline to make such an order.

With respect to the second term (payment of the $3,000.00 assessment fee), RBC seems to be relying upon its assertion that this application amounts to an abuse of process. RBC also relies upon the case of Monney and Dominion of Canada General Insurance Company (FSCO A98-001146, May 4, 2000), in which the Commission permitted the applicant in that case to withdraw the application but ordered the applicant to pay to the insurer the $3,000.00 assessment fee on the basis that the applicant had abused the process. I note, however, that that decision was made before section 282 of the Insurance Act was amended by the removal of the provision that expressly gave to the Commission the right to award to an insurer an amount not exceeding the assessment fee in cases of abuse of process or where an application was found to be frivolous or vexatious. In any event, based upon the scant information available to me, I am not satisfied either that the Applicant has abused the process or that this application is frivolous or vexatious. Based upon this finding and the lack of any express statutory authority for granting such relief, I decline to make the withdrawal of this application conditional upon the Applicant paying to RBC the $3,000.00 assessment fee.

I am also not prepared to grant RBC’s request that the withdrawal be conditional upon an order that prohibits the Applicant from filing a subsequent application dealing with the same issues. Should the Applicant subsequently seek to file a new application for issues that are similar to the ones raised herein, RBC may raise any objections and seek whatever relief it deems appropriate at that time.

In short, I am prepared to grant the Applicant’s request and permit her to withdraw this application without any terms or conditions.

EXPENSES:

RBC has been put to unnecessary expense and is entitled to be compensated for such expense. Counsel for RBC has had to review the file, prepare a Response, prepare for a pre-hearing conference, appear before me briefly on November 8, 2007 and then prepare written submissions concerning the Applicant's request to withdraw this application. RBC has claimed approximately $1,100.00, inclusive of fees, disbursements and GST. Without conducting a line-by-line analysis of the Bill of Costs submitted on behalf of RBC and having considered the criteria set out in the Expense Regulation,² I find that RBC is entitled to its expenses, but that the expenses ought to be fixed in the amount of $750.00 (inclusive of fees, disbursements and GST).

An order shall be issued in accordance with the foregoing.

December 21, 2007

Richard Feldman Arbitrator

Date