Victor Zhukovskiy v. York Fire & Casualty Insurance Company, 2008 ONFSCDRS 169

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 169

FSCO A08-000151

BETWEEN:

VICTOR ZHUKOVSKIY

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: September 12, 2008, at the offices of the Financial Services Commission of Ontario in Toronto, with written submissions to be received by October 6, 2008.

Appearances: No one for Mr. Zhukovskiy Marla Emdin for York Fire & Casualty Insurance Company

Issues:

The Applicant, Victor Zhukovskiy, was injured in a motor vehicle accident on October 20, 2006. He applied for statutory accident benefits from York Fire & Casualty Insurance Company (“York”), payable under the Schedule.¹ York denied Mr. Zhukovskiy’s claims for certain medical benefits, for the cost of certain assessments and for housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Mr. Zhukovskiy 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:

Should Mr. Zhukovskiy’s arbitration be dismissed without a hearing on the basis that the proceeding is frivolous, vexatious or commenced in bad faith, pursuant to Rule 68.1 of the Dispute Resolution Practice Code?

Result:

Mr. Zhukovskiy’s arbitration is dismissed.
Mr. Zhukovskiy shall pay to York Fire & Casualty Insurance Company arbitration expenses in the amount of $500.

EVIDENCE AND ANALYSIS:

On January 28, 2008, Mazin Rooz Mazin, filed an Application for Arbitration with the Commission on behalf of Mr. Zhukovskiy. On May 26, 2008, I conducted a pre-hearing conference in this matter. Mr. Zhukovskiy did not attend the pre-hearing conference. Mazin Rooz Mazin subsequently brought a motion to be removed from the record as Mr. Zhukovskiy’s representative in this arbitration. I heard the motion on July 4, 2008. Mr. Zhukovskiy did not attend the motion. On July 16, 2008, I issued a decision setting out the circumstances of Mazin Rooz Mazin’s interaction with Mr. Zhukovskiy and granting the motion. I also indicated that the pre-hearing conference would resume on September 12, 2008, at 2:00 p.m., at the offices of the Financial Services Commission of Ontario, in Toronto. The Commission also sent a notice to this effect to the parties.

The pre-hearing resumed on September 12, 2008. On September 15, 2008, I issued the following letter:

The pre-hearing conference in this matter resumed on September 12, 2008, at 2:00 p.m., at the offices of the Financial Services Commission of Ontario in Toronto. Ms. Emdin participated on behalf of York Fire & Casualty Insurance Company. Mr. Zhukovskiy did not attend.

Ms. Emdin requested that Mr. Zhukovskiy’s arbitration be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code or, in the alternative, that it be deemed to have been withdrawn pursuant to Rule 70 of the Code. In either case, Ms. Emdin sought costs in the amount of $1,500.

Based on Mr. Zhukovskiy’s non-attendance at the initial pre-hearing conference, at Mazin Rooz Mazin’s motion to be removed from the record and at the pre-hearing resumption, I am prepared to notify Mr. Zhukovskiy of my intention to dismiss the arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or commenced in bad faith, within the meaning of Rule 68.1 of the Dispute Resolution Practice Code.

Pursuant to Rule 68.3 of the Code, should Mr. Zhukovskiy object to the dismissal of his arbitration on this basis, or wish to make written submissions with respect to the dismissal, he shall provide the grounds upon which he objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing, and serve the material on Ms. Emdin and file it within 20 days of the date of this notice.

Pursuant to Rule 68.4 of the Code, I will consider any written objections or submissions received and issue an order, as appropriate.

If you have any questions or require more information, please telephone this office at (416) 250–6714, or call toll free at 1–800–517–2332.

Mr. Zhukovskiy had until October 6, 2008 to provide any objection or written submissions. Mr. Zhukovskiy did not respond to the September 15th notice. None of the notices to Mr. Zhukovskiy in this proceeding have been returned to the Commission. Mr. Zhukovskiy has not notified the Commission of any change in address, as would be required under Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”). I note that the notices in this matter have been sent to the address the Commission currently has on file for Mr. Zhukovskiy, as well as to a second address for Mr. Zhukovskiy provided by Mazin Rooz Mazin (and to which that firm also sent correspondence to Mr. Zhukovskiy). I am satisfied that Mr. Zhukovskiy has had proper notice of the proceedings.

In the circumstances, and for the reasons set out in the September 15th notice, I find that Mr. Zhukovskiy has effectively abandoned his arbitration and that the proceeding is frivolous. Pursuant to Rule 68.1 of the Code, Mr. Zhukovskiy’s arbitration is dismissed.

EXPENSES:

As noted in my September 15, 2008 correspondence, Ms. Emdin sought costs in the amount of $1,500, in the event Mr. Zhukovskiy’s arbitration was dismissed. As set out in the July 16, 2008 decision, I have already issued a costs order in respect of the initial pre-hearing conference and Mazin Rooz Mazin’s motion to be removed from the record. Given the brief attendance required on September 12, 2008, as well as the limited additional work likely involved in preparing for the pre-hearing resumption, I am only prepared to award costs to York in the amount of $500.

October 17, 2008

Eban Bayefsky Arbitrator

Date