Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 103

FSCO A07-000288

BETWEEN:

YOLANDA GIRAO

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

Before: Judith Killoran

Heard: By telephone conference call on June 20, 2008.

Written submissions were received on June 17 and 18, 2008.

Appearances: Victor Mesta for Ms. Girao

Eric K. Grossman for Allstate Insurance Company of Canada

Issues:

The Applicant, Yolanda Girao, was injured in a motor vehicle accident on June 19, 2002. She applied for statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Girao 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:

Is Mr. Mesta entitled to withdraw Ms. Girao’s application for arbitration under Rule 70 of the Dispute Resolution Practice Code?
Is either party entitled to its expenses under Rule 75 of the Dispute Resolution Practice Code?

Result:

Mr. Mesta has complied with all the requirements of Rule 70 of the Dispute Resolution Practice Code. He is entitled to withdraw Ms. Girao’s application for arbitration.
Expenses are not awarded to either party. The parties shall bear their own expenses.

EVIDENCE AND ANALYSIS:

MOTION TO WITHDRAW

On May 1, 2008, Mr. Mesta sought Allstate’s consent to withdraw Ms. Girao’s application for arbitration. He forwarded a written request to withdraw which was filed with FSCO and served on Allstate. Allstate did not consent to the withdrawal. In its correspondence to FSCO dated May 8, 2008, Allstate advised that it was seeking an expense hearing.

On June 20, 2008, I heard Mr. Mesta’s submissions in support of his motion to withdraw Ms. Girao’s application. He confirmed that he was the representative for his wife, Ms. Girao.

Rule 70 of the Dispute Resolution Practice Code states:

70.1 A party may seek permission to withdraw all or part of a dispute by:

(a) serving a request to withdraw on all parties; and

(b) filing the request to withdraw together with a Statement of Service in Form F; or

(c) making an oral request to withdraw all or part of a dispute during a neutral evaluation, pre-hearing discussion, settlement discussion, preliminary conference or at a hearing.

70.2 An adjudicator may permit a party to withdraw all or part of a dispute where all parties agree.

70.3 Where a party does not agree to the withdrawal, an adjudicator may:

(a) permit the withdrawal on such terms and conditions as he or she considers just;

(b) award expenses to either party as permitted by Rule 75 and following.

Effective November 1, 2003, new requirements were enacted for those individuals who are not lawyers and who provide representation to applicants under the Statutory Accident Benefits Schedule.

On April 4, 2008, Mr. Mesta forwarded to FSCO the required document executed by Ms. Girao confirming that he was representing her in the arbitration, without compensation, with full authorization to discuss all issues in dispute, to negotiate and to enter into any agreement or settlement of any or all issues in dispute, on her behalf, in connection with the application. Mr. Mesta confirmed in the same document that he was not receiving or entitled to receive any benefit directly or indirectly from any source including a financial benefit in connection with his representation of Ms. Girao, whether in the form of wages, fees, or other forms of consideration or remuneration.

I find that Mr. Mesta, on Ms. Girao’s behalf, has complied with the requirements of Rule 70. Therefore, he is entitled to withdraw Ms. Girao’s application for arbitration.

EXPENSES:

Allstate requested its expenses under Rule 75 as a condition of Ms. Girao’s withdrawal. A Bill of Costs was submitted by Allstate on June 17, 2008. On June 18, 2008, Ms. Girao submitted a Bill of Costs.

I have considered the Expense Regulation and Rule 75. The relevant criteria for me to consider are:

(a) each party’s degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with subsection (3);

(d) the conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

Most of the above criteria are more appropriately considered at the conclusion of a proceeding rather than in these circumstances where an application is being withdrawn prior to an arbitration hearing. However, I do find that it does not appear that any aspect of this proceeding was improper, vexatious or unnecessary. Both parties have incurred expenses to this point in the proceeding as a consequence of their participation in the dispute resolution process. However as this proceeding has not been concluded, I am not persuaded that either party is entitled to its expenses under Rule 75. The parties shall bear their own expenses.

June 27, 2008

Judith Killoran

Arbitrator

Date