Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 192
FSCO A06-000880
BETWEEN:
CHANDRATHASAN SELLATHURAI
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
REASONS FOR SUPPLEMENTAL DECISION
Before: Arbitrator John Wilson
Heard: November 24, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Further written submissions were received on November 12, 2008.
Appearances: No-one appearing for Mr. Sellathurai
Lorraine E. Takacs for Motor Vehicle Accident Claims Fund
Issues:
The Applicant, Chandrathasan Sellathurai, claimed to have been injured in a motor vehicle accident on June 28, 2005. He applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund (“MVAC”), payable under the Schedule.1
The parties were unable to resolve their disputes through mediation, and Mr. Sellathurai applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The claim wound its way slowly through the arbitration system.
On August 10, 2006 at the first pre-hearing, Mr. Sellathurai did not make himself available. Ms. Nureen Sharif who appeared on behalf of Mr. Alon Rooz2, the counsel of record, advised that her firm was unable to reach Mr. Sellathurai. She stated that although she might be in a position to settle the treatment account she had no instructions from Mr. Sellathurai as to how to proceed in this matter.
Mazin and Rooz subsequently brought a motion to be released as solicitors of record.
On the day of the motion hearing, I made an oral order releasing Mr. Rooz and his firm Mazin and Rooz (“Mazin”) as counsel of record from that point forward.
I also made an order conditionally dismissing the arbitration, subject to a requirement that the Insurer publish a notice directed to Mr. Sellathurai advising him that his arbitration would be dismissed finally and that he should contact the Insurer and the Commission within 30 days of the notice, failing which, the order dismissing the arbitration would be finalized without further notice.
The issues in this hearing are:
Should the arbitration be dismissed?
By whom should the expenses be payable?
Result:
The arbitration is dismissed.
Mr. Sellathurai shall pay the Insurer’s expenses which were fixed at $1,500.
EVIDENCE AND ANALYSIS:
At the motion hearing which took place on November 24, 2006, I made an oral ruling that the matter be dismissed, but subject to the condition that the Insurer place an advertisement in a newspaper having general circulation in Hamilton, Ontario, the city where Mr. Sellathurai was supposed to have lived, advising him of the upcoming dismissal of his claim and his potential liability for an expense order payable to the Insurer. If Mr. Sellathurai did not respond to the advertisement within 30 days of publication, the order was to be made final.
At the same time as I made the conditional order dismissing the arbitration, I also made an expense order in favour of the Insurer in the amount of $1,500. Although an expense order is prima facie payable by one of the statutory parties, in this case Mr. Sellathurai, I specifically left the identity of the payor of the expense open until such time as the dismissal order was finalized.
It was clear at the time that MVAC believed that the provisions of section 282(11.2) of the Insurance Act should apply to this case. The relevant provisions are:
(b) in respect of a representative of an insured person, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person;
or
(c) the representative caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default.
Counsel for MVAC has since provided a copy of the advertisement inserted in the Hamilton Spectator on May 18, 2007, together with her certification that no response was received from Mr. Sellathurai or anyone acting on his behalf within the 30 day period provided for in my order.
In the event that Mr. Sellathurai had advised of his intention to continue this matter within the 30 day time limit, the arbitration would have been stayed pending a case conference to deal with a timetable for the matter, the setting of dates for an arbitration, as well as any expenses arising from what would effectively be the adjournment of this arbitration. In fact, Mr. Sellathurai made no effort to contact either FSCO or the Insurer.
The Commission file, however, does not show any contact from Mr. Sellathurai or anyone acting on his behalf.
Consequently, the conditional order is now made final and the arbitration is formally dismissed.
EXPENSES:
At the same time as I made the conditional order dismissing the arbitration, I also made an expense order in favour of the Insurer in the amount of $1,500. Although an expense order is prima facie payable by one of the statutory parties, in this case Mr. Sellathurai, I specifically left the identity of the payor of the expense open until such time as the dismissal order was finalized.
On April 27, 2007, I wrote again to the parties requesting further submissions on the issue of expenses, including any disbursements. I received no response.
Although, as noted in the earlier decision, the absence of a signature from Mr. Sellathurai on any of the documentation in this arbitration, and the unanswered questions raised by his total absence from this process might have raised alarm bells about just who was instructing the solicitors in this matter, I have no evidence before me that the former solicitors for Mr. Sellathurai were doing anything other than vigourously advocating for their client, notwithstanding the lack of communication with Mr. Sellathurai that led to their withdrawal.
There are no grounds to make an order pursuant to section 282(11.2) of the Insurance Act. Consequently, the expense order shall be payable by Mr. Sellathurai only.
In the absence of further submissions on expenses or disbursements the amount ordered shall be $1,500, the amount fixed in my previous order. This shall be payable forthwith.
December 2, 2008
John Wilson
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 192
FSCO A06-000880
BETWEEN:
CHANDRATHASAN SELLATHURAI
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The arbitration is dismissed.
Mr. Sellathurai shall pay to the Motor Vehicle Accident Claims Fund its expenses fixed in the amount of $1,500.
December 2, 2008
John Wilson
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Although Mr. Alexander Mazin signed the Application for Arbitration, the record was amended to show his law partner, Mr. Alon Rooz as solicitor of record.