DECISION ON A MOTION

Before: Jeffrey Rogers Heard: By telephone conference call on May 30, 2008 and written submissions completed on December 1, 2008.

Appearances: Mr. Peter Cozzi, solicitor for Mr. Owusu Mr. Chris T. J. Blom, solicitor for Markham General Insurance Company

Issues:

The Applicant, William Owusu, claimed that he was injured in a motor vehicle accident on June 12, 2002. He applied for statutory accident benefits from Markham General Insurance Company (“Markham”), payable under the Schedule.¹ Markham refused to pay the claimed benefits on the grounds that Mr. Owusu was not injured in an “accident” as defined in the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Owusu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this motion is:

Should this application be dismissed for want of prosecution?

Result:

The application is dismissed for want of prosecution.

EVIDENCE AND ANALYSIS:

Mr. Owusu applied for arbitration on April 8, 2003. A pre-hearing discussion was held on November 3, 2003. Mr. Owusu attended. At the pre-hearing, the benefits in dispute were identified as income replacement benefits, medical benefits, housekeeping and home maintenance services, and assessments under section 24 of the Schedule. The hearing was scheduled for July 2004.

The pre-hearing was resumed on June 24, 2004. The parties advised that criminal charges relating to the accident had been laid against Mr. Owusu. They also agreed that the most efficient way to resolve the application was to hold a preliminary issue hearing on whether Mr. Owusu was injured in an “accident” to be followed by a further hearing on entitlement to the claimed benefits, if necessary. Because the criminal trial imposed limitations on the insurer’s ability to provide disclosure on the preliminary issue, the hearing was scheduled for June 2005.

In April 2005, the preliminary issue hearing was adjourned to February 2006, because the criminal charges had not yet been resolved. The hearing again did not proceed in February 2006 because the criminal charges remained unresolved. In June 2006, counsel for Mr. Owusu informed the Commission that his client was deceased and that the criminal charges had been withdrawn. By letter of January 21, 2008 counsel for Mr. Owusu informed the Commission that he did not intend to proceed with the arbitration because his client was deceased.

I responded by letter of March 25, 2008. I indicated that I took counsel’s letter as a request to withdraw the application. I requested information on whether counsel was instructed by the estate of Mr. Owusu and if he was not, I requested submissions from both parties on my jurisdiction to grant the request.

The pre-hearing was resumed on May 30, 2008. Counsel for Mr. Owusu advised that he was not retained by the estate, that there was no executor or administrator, but that he had met with the relatives of the deceased and they had not shown an interest in pursuing the application. Markham moved for an order dismissing the application as frivolous. I indicated that I was not satisfied that I could rule the application to be frivolous in the circumstances, but that I was prepared to consider dismissing it for want of prosecution, if satisfied that there was no one with an interest in Mr. Owusu’s estate who intended to pursue it. I also indicated that the usual method of seeking participation from persons with interest in an estate in these circumstances was by publishing a notice in a local newspaper, but that such publication would be an unnecessary expense if counsel for Mr. Owusu was able to provide me with information upon which I could conclude that it was unlikely that anyone with an interest in Mr. Owusu’s estate intended to pursue the application.

In October 2008, counsel for Mr. Owusu provided a copy of a memorandum confirming a meeting with Mr. Owusu’s relatives in July 2008. The memorandum indicated that the relatives were not prepared to retain existing counsel but were considering retaining new counsel. I wrote to counsel on October 6, 2008 indicating that I was not prepared to consider dismissing the application without first giving the relatives a deadline for pursuing it. I received a letter from Mr. Owusu’s sister, dated October 23, 2008, advising that a decision had been made not to pursue the application. I responded by letter of October 31, 2008, indicating that I would issue an order dismissing the application after November 23, 2008, unless advised that there was objection to such an order. I have received no further correspondence or communication on the matter.

There is no specific provision in the Dispute Resolution Practice Code (the “DRPC”) that deals with resolving applications which are not being prosecuted. The only provision touching on similar circumstances is Rule 68 which provides for dismissal without a hearing, where the application is frivolous, vexatious or commenced in bad faith. Arbitrators have directly applied this provision in similar circumstances but I am not satisfied that Mr. Owusu’s death and the failure of anyone to come forward to pursue the application renders it frivolous, vexatious or commenced in bad faith. In the present circumstances, Markham is simply saying that the application should be dismissed because it is not being prosecuted. I find jurisdiction to dismiss the application on those grounds in the power of a tribunal to control its own process.

Rule 1.2 provides that, where something is not specifically provided for in the Rules, the practice may be decided by referring to similar rules in the DRPC. The circumstances in this case are similar to those that exist where an insurer seeks to dismiss an application as frivolous and I have adopted a process similar to that required by Rule 68 in giving notice to affected parties and setting a deadline for objection. I find that there is likely no one with an interest in pursuing this application and that, in the circumstances, the application should be dismissed for want of prosecution. An order will be made accordingly.

December 9, 2008

Jeffrey Rogers Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2008 ONFSCDRS 194 FSCO A03-000563

BETWEEN:

WILLIAM OWUSU Applicant

and

MARKHAM GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The application is dismissed.