Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 45

FSCO A05-002805

BETWEEN:

PHILIP ODURO-KYE

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

MOTION HEARING

Before:

Joyce Miller

Heard:

November 24, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Oduro-Kye did not appear

Tullio D'Angela for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

The Applicant, Philip Oduro-Kye, was injured in a motor vehicle accident on January 25, 2005. He applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security National"), payable under the Schedule.¹ Security National denied initial entitlement to income replacement benefits, and further medical benefits, housekeeping and cost of examinations. The parties were unable to resolve their disputes through mediation, and Mr. Oduro-Kye applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code,² should the firm of Mazin & Rooz be permitted to withdraw as solicitors of record for the Applicant, Mr. Oduro-Kye?
Should Mr. Oduro-Kye's arbitration be dismissed without a hearing on the grounds that it is frivolous, vexatious or has been commenced in bad faith, pursuant to Rules 68.1 and 68.2 of the Dispute Resolution Practice Code?

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code, the firm of Mazin & Rooz is permitted to withdraw as solicitors of record, for the Applicant, Mr. Oduro-Kye.
The arbitration is dismissed.
Mr. Oduro-Kye shall pay Security National $1,000, inclusive of GST, for its disbursements and legal fees.

A pre-hearing discussion was held on September 26, 2006. Mr. Oduro-Kye failed to attend the pre-hearing. After hearing submissions from the parties I found that Security National was entitled to its costs in this pre-hearing in the amount of $150.

In addition, on consent of the parties and pursuant to Rule 30 of the Dispute Resolution Practice Code, I joined Mr. Oduro-Kye's Application with the case of Shallaja Bahuguna and Security National (FSCO File A05-002828).

The pre-hearing was rescheduled for October 24, 2006. On September 29, 2006 a Notice of Rescheduled Pre-Hearing was sent to Mr. Oduro-Kye.

Mr. Oduro-Kye failed to attend the rescheduled pre-hearing on October 24, 2006. Counsel for Mr. Oduro-Kye requested to be removed as solicitor of record pursuant to Rule 9 of the Dispute Resolution Practice Code. Counsel for Security National requested that Mr. Oduro-Kye's arbitration be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code.

On October 30, 2006, Mr. Oduro-Kye was sent a Notice of Motion hearing scheduled for November 24, 2006 advising him that his solicitor was requesting to get off the record and that Security National was requesting that his arbitration be dismissed.

The Motion hearing in this case commenced as scheduled on November 24, 2006. Mr. Oduro - Kye did not attend the hearing.

After reviewing the affidavit of Ms. Dimple Verma, Barrister and Solicitor at the firm of Mazin & Rooz, and the supporting documents provided, I am satisfied that there has been a breakdown in the solicitor-client relationship. Accordingly, pursuant to Rule 9.8 of the Dispute Resolution Practice Code, I find that the firm of Mazin & Rooz is permitted to withdraw as solicitor of record, without terms.

THE LAW

Rules 68.1 and 68.2 of the Dispute Resolution Practice Code provide:

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.

EVIDENCE AND ANALYSIS

As noted above, Mr. Oduro-Kye did not attend the scheduled Motions hearing. There is no indication in the file that Mr. Oduro-Kye made any effort to inform FSCO that he would not appear. In addition, the Commission file reveals that Mr. Oduro-Kye did not at anytime advise the Commission of any change in his address. The Notice of the Motion Hearing sent on October 30, 2006 stated that the purpose of the Motion hearing was to deal with a request by his solicitor to get off the record and to deal with the Insurer's request to have the arbitration dismissed. In addition, the Notice of Motion stated:

You may attend this motion in person and/or be represented. If you or your representative do not attend at the motion, the arbitrator may dispose of the motion in your absence and you will not be entitled to any further notice.³

Accordingly, for these reasons, I find that Mr. Oduro-Kye had proper notice of the hearing to dismiss his arbitration. Mr. Oduro-Kye did not appear for this hearing. Accordingly, pursuant to section 7 of the Statutory Powers Procedure Act, I proceeded to dispose of the case in Mr. Oduro-Kye's absence.

The purpose of the Motion hearing was to determine whether Mr. Oduro-Kye's arbitration should be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code.

The fact that an applicant does not appear at a scheduled hearing does not mean that an arbitrator can dismiss the arbitration solely on the applicant's failure to attend the hearing. While I have authority pursuant to section 7 of the SPPA to proceed with the hearing, the burden of proof rests with Security National to show on a balance of probabilities that Mr. Oduro-Kye's claim should be dismissed.

For the following reasons, I find that Security National has fulfilled its burden.

Security National presented an affidavit by Ms. Kristi Piekny, a lawyer at the law of Lawson McGrenere LLP, with supporting documentation, to show that since the filing of the Application for Arbitration, which was executed by Mr. Oduro-Kye's lawyer, there has been a complete failure on the part of Mr. Oduro-Kye to fulfill any of his obligations in support of his claim.

Security National submits that Mr. Oduro-Kye's lack of response to the arbitration proceeding, including his failure to attend the two scheduled pre-hearings on September 26, 2006 and October 24, 2006, his lack of contact with his counsel to provide any instructions, and not appearing at the Motions hearing, despite being properly served with notice of the hearing, makes it unfair to Security National to have to continue with this proceeding. Accordingly, Security National submits that the appropriate inference for Mr. Oduro-Kye's total lack of participation in the arbitration process is that his Application for Arbitration is frivolous and vexatious and should be dismissed pursuant to section 68 of the Dispute Resolution Practice Code.

In support of its submissions Security National relies on the case of Al-Hajam and Allstate Insurance Co. of Canada⁴ where Arbitrator Wilson follows the reasoning of Mr. Justice Cameron in the case of Canada (Attorney General) v. Hainsworth⁵. In Hainsworth, Mr. Justice Cameron states "the categories of vexatious proceedings are never closed and must be determined by an objective standard." He further noted that: "(A)n action that initially had some merit might be rendered vexatious through subsequent conduct."

FINDINGS

I find that Mr. Oduro-Kye had clear notice from my pre-hearing letter of October 30, 2006 and the Notice of Motion hearing of the same date that the dismissal of his Application for Arbitration was being considered on November 24, 2006. I find that despite ample notice of the hearing to dismiss his arbitration Mr. Oduro-Kye chose not to appear.

I agree with Security National's submissions that Mr. Oduro-Kye's conduct in respect of his Application for Arbitration is frivolous and vexatious. I find that Mr. Oduro-Kye completely failed in his obligations to support his arbitration claim. While there might have been some merit to his Application for Arbitration, I find that the proceeding has been rendered vexatious through Mr. Oduro-Kye's subsequent conduct.⁶ Accordingly, I find that Mr. Oduro-Kye's application for arbitration is dismissed.

EXPENSES:

Security National had been successful in this Motion. Accordingly, I award Security National its expenses. Having reviewed Security National's Bill of Costs, I find that Mr. Oduro-Kye shall pay Security National the amount of $1,000, inclusive of GST, for its legal fees and disbursements.

March 6, 2007

Joyce Miller Arbitrator

Date