Yaya Ali v. Nordic Insurance Company of Canada, 2008 ONFSCDRS 155

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 155

FSCO A06-000423

BETWEEN:

YAYA ALI

Applicant

and

NORDIC INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Robert Bujold

Issues:

The Applicant, Yaya Ali, was injured in a motor vehicle accident on December 6, 2004. He applied for and received statutory accident benefits from Nordic Insurance Company of Canada (“Nordic”), payable under the Schedule.¹ Disputes arose regarding the payment of certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Ali applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue before me is:

Should Mr. Ali’s application for arbitration be dismissed as vexatious, pursuant to Rule 68 of the Dispute Resolution Practice Code (the “Code”)?

Result:

Mr. Ali’s application for arbitration is dismissed.

EVIDENCE AND ANALYSIS:

This matter has a rather long history.

The Application for Arbitration filed by Mr. Ali is dated February 24, 2006. An initial pre‑hearing discussion was conducted in person at FSCO’s offices on November 23, 2006. At that time, Mr. Ali was represented by Mr. Justin Mariani. Arbitrator Snider presided over the pre-hearing. In his letter of December 4, 2006, Arbitrator Snider notes that “Mr. Ali did not participate and did not make himself available for contact in any way during the course of the pre-hearing discussion despite his apparent earlier agreement with Mr. Mariani to do so.” He continues, “Mr. Mariani was not able to contact Mr. Ali despite repeated efforts during the pre-hearing discussion and accordingly no significant progress could be made.”

Mr. Mariani brought an oral motion to be removed from the record as Mr. Ali’s representative. The request was ultimately granted after Mr. Mariani provided written confirmation of Mr. Ali’s then current address in California.

A considerable period of time then elapsed, apparently due, at least in part, to unsuccessful efforts by FSCO to contact Mr. Ali to set up a further pre-hearing discussion. These efforts included leaving messages for Mr. Ali at Toronto area and California phone numbers. Apparently, word of FSCO’s efforts to contact him made its way to Mr. Ali who left a voice mail message with the case administrator on or about October 10, 2007 providing a new telephone contact number in California. Unfortunately, two messages left by the case administrator at the new number were not returned by Mr. Ali.

In the circumstances, a resumption of the pre-hearing discussion was set up for February 11, 2008 at 10:00 a.m. The pre-hearing was arranged as an in-person conference. A Notice of Resumption of Pre-Hearing Conference was sent to the last known address on file for Mr. Ali in California.

I presided at the resumed pre-hearing on February 11, 2008. Ms. Roxanne Hector attended on behalf of Nordic. Ms. Danette Cashman, legal counsel, also attended and represented Nordic. Mr. Ali did not attend. I was, however, able to successfully contact Mr. Ali by telephone. Mr. Ali advised that he had not received notice of the February 11, 2008 pre-hearing discussion. He explained that he had moved from one California address to another. I updated FSCO’s records and reminded Mr. Ali of his ongoing obligation to keep FSCO and Nordic informed of any change of address or change in other contact information.

Nordic challenged Mr. Ali’s claim that he did not have notice of the pre-hearing as he had purportedly contacted Nordic’s counsel’s office in advance of the pre-hearing. In any event, it was agreed that the pre-hearing would be rescheduled to July 25, 2008 at 11:00 a.m. I note that the date of July 25, 2008 was selected to accommodate Mr. Ali who said that he would be in Canada on that date and therefore able to attend in person.

The July 25, 2008 pre-hearing appointment was confirmed by Notice of Pre-Hearing Discussion dated February 13, 2008 sent to Mr. Ali’s new address in California. I also wrote to Mr. Ali on February 15, 2008 confirming the discussion of February 11, 2008. I highlighted the fact that the July 25, 2008 appointment had been arranged to accommodate his attendance in Canada. I also confirmed we would address all matters that are normally dealt with at a pre-hearing discussion when we met on July 25^th including setting dates for the main hearing and identifying the witnesses that the parties intend to call. I also suggested that Mr. Ali may wish to access the Dispute Resolution Practice Code, which governs the dispute resolution process, and provided him with the Internet address for FSCO’s website.

In short, notwithstanding his failure to attend two pre-hearing appointments, every effort was made to accommodate Mr. Ali and the pre-hearing was rescheduled again to a date convenient to him.

On July 25, 2008 at 11:00 a.m., Ms. Hector and Ms. Cashman re-attended at FSCO prepared, for the third time, to conduct a pre-hearing discussion in this matter. Again, Mr. Ali was not in attendance nor was there any record that Mr. Ali had contacted FSCO to advise that he would not be attending or that he wished to participate by telephone. However, not having heard from Mr. Ali by 11:15 a.m., I attempted to contact him by telephone and he answered the call.

Mr. Ali requested that this third pre-hearing discussion be rescheduled to a later date. He indicated that he was dealing with a “lot of matters,” although he did not offer any particulars. I asked Mr. Ali why he had not contacted FSCO in advance of the pre-hearing to advise that he could not attend in person or to request another date. Mr. Ali did not provide an explanation.

I declined Mr. Ali’s request to adjourn the pre-hearing discussion. I advised Mr. Ali that we would proceed with the pre-hearing and get the matter ready for a hearing. I reminded Mr. Ali that this was his application that he commenced 2 ½ years prior and that he had an obligation to pursue the application without undue delay. The insurer, Nordic, had a corresponding right to have the application dealt with in a timely matter. I also reminded Mr. Ali that this was the third time that the insurer had attended in person with counsel to try to deal with his application.

At that point, Mr. Ali became agitated and terminated the telephone call, thereby frustrating this third attempt to conduct a pre-hearing discussion.

In response to his refusal to participate in the pre-hearing process, I wrote to Mr. Ali on August 5, 2008 at the current address in FSCO’s file.

In my letter, I advised the parties as follows:

I find Mr. Ali’s conduct in this proceeding to be high-handed and contemptuous of the arbitration process. Mr. Ali has either failed to attend or failed to participate meaningfully in three pre-hearing discussions. His conduct evidences a want of prosecution, as well as a disregard for his obligations and the rights of the insurer. If the application was not initially brought to vex the insurer, Mr. Ali’s subsequent conduct has, in my view, rendered the proceeding vexatious.

In the circumstances, and for the reasons outlined above, this letter is written notice to the parties of my intention to dismiss this application as frivolous and vexatious pursuant to Rule 68 of the Commission’s Dispute Resolution Practice Code. [emphasis in original]

Nordic was provided verbal notice of my intention at the pre-hearing and advised that it would not be seeking an Order for expenses.

If Mr. Ali objects to the proposed dismissal of his application, he must:

(a) provide the grounds upon which he objects to the dismissal of the proceeding or set out any other issues or concerns, in writing; [emphasis in original] and

(b) serve this material upon the other parties and file it (with the Commission) within 20 days of the date of this letter, which is being provided as notice under Rule 68.2.

I will consider any written objections or submissions from Mr. Ali.

As of the date of these reasons, FSCO has received no response from Mr. Ali to my letter of August 5, 2008.

In Canada (Attorney General) v. Hainsworth,² Cameron J. remarked “(a)n action that initially had some merit might be rendered vexatious through subsequent conduct.” The case is cited approvingly by Arbitrator Wilson in Al-Hajam and Allstate.³ Other FSCO cases have found that an Applicant’s subsequent conduct can render a proceeding vexatious.⁴

I find that Mr. Ali’s failure to participate meaningfully in the prosecution of his application, culminating in his refusal to participate in the third attempt at a pre-hearing discussion, has not only frustrated efforts to deal with his application in a timely manner, but has dissipated any confidence that his application can be dealt with at all. When viewed in the context of the full history of this proceeding, Mr. Ali’s final act of summarily terminating the pre-hearing discussion on July 25, 2008 and his failure to provide a written response to my letter of August 5, 2008 evidence that he has abandoned his application.

As stated in my letter of August 5, 2008, I further find that Mr. Ali’s actions have been high-handed and contemptuous of the arbitration process and have evidenced a disregard for his obligations and the rights of the insurer. As such, I find that while the application may not have been brought initially to vex the insurer, Mr. Ali’s subsequent conduct has rendered the proceeding vexatious.

For the reasons stated both herein and in my letter of August 5, 2008, Mr. Ali’s application for arbitration is hereby dismissed as vexatious, pursuant to Rule 68 of the Code.

EXPENSES:

Nordic indicated that it would not be seeking its costs in respect of the proceeding. No costs are therefore awarded.

September 23, 2008

Robert Bujold

Arbitrator

Date