Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 40

FSCO A06-000917

BETWEEN:

QAMAR CHOUDHRY

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: February 16, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Idan Erez (student-at-law) for Mr. Choudhry

Pamela M. Stevens for Lombard General Insurance Company of Canada

The Applicant, Qamar Choudhry, was allegedly injured in a motor vehicle accident on October 28, 2005. He applied for accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule.¹ Disputes arose between the parties concerning Mr. Choudhry's entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Choudhry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Choudhry applied for:

Income replacement benefits in the amount of $400 per week from November 4, 2005 onwards;
The cost of treatment ($740.00) and transportation ($120.00) provided by Focus Rehab. Group;
The outstanding cost ($53.82) of an examination (on Nov. 17, 2005) by Focus Rehab. Group;
A special award pursuant to subsection 282(10) of the Insurance Act;
Interest for the overdue payment of benefits pursuant to s. 46(2) of the Schedule; and
His expenses in respect of the arbitration.

The Insurer, in its Response, claimed its expenses in respect of the arbitration.

The Applicant failed to attend at a pre-hearing conference on August 14, 2006. The pre-hearing conference was therefore rescheduled to October 26, 2006. On October 26, 2006, the Applicant again failed to appear, although his solicitor did attend. According to the affidavit filed by the Applicant's solicitor, neither Mr. Mazin nor anyone at his firm has been able to communicate with the Applicant since March 2006 and Mr. Mazin is unaware of Mr. Choudhry's current whereabouts. On October 26, 2006, Lombard requested that this application be dismissed as being frivolous and vexatious and that Lombard be awarded its expenses. Mr. Mazin requested that the pre-hearing conference be rescheduled to allow him more time to try to locate his client.

I adjourned the pre-hearing conference to February 16, 2007 and, pursuant to Rule 68 of the Dispute Resolution Practice Code, I wrote to the Applicant on October 26, 2006 to advise Mr. Choudhry that it was my intention to dismiss this application unless he provided a written explanation for his absences and attended at the pre-hearing conference on February 16, 2007. Mr. Choudhry did not respond to my letter.

On February 16, 2007, Mr. Erez attended on behalf of Mr. Mazin to request that Mr. Mazin be removed from the record as solicitor for the Applicant. Since Mr. Erez provided no evidence that Mr. Mazin had provided notice to the Applicant of this motion, the motion was denied.

Lombard renewed its request that this application be dismissed. The Applicant has failed to attend before the Commission on three separate occasions. He has failed to respond to correspondence from his own solicitor and from the Commission. None of the letters sent to the Applicant by the Commission have been returned as being undeliverable. The Applicant apparently cannot be reached at his last known telephone number or at his last known address. Since the Applicant has failed to participate in this proceeding and has failed to keep the Commission and his own representative aware of his whereabouts, it appears that the Applicant is no longer interested in pursuing this matter. I find that this application is vexatious and that it would be unfair to allow the matter to proceed further. I therefore granted Lombard's request and dismissed this application.

EXPENSES:

Lombard requested its expenses of this arbitration for reviewing the file, preparing a Response, conducting legal research, and attending on three occasions before the Commission. Ms. Stevens requested that Lombard's expenses be fixed in the sum of $800.00. Although Mr. Erez had no instructions from his client, he suggested that a lesser amount might be more appropriate. I indicated that, in the circumstances, I would award to Lombard its expenses, fixed in the sum of $500.00.

March 5, 2007

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario