Mark Ivan Bradburn v. Economical Mutual Insurance Company, 2009 ONFSCDRS 110

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 110

FSCO A07-001809

BETWEEN:

MARK IVAN BRADBURN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Joyce Miller

Heard: June 17, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Bradburn by telephone

Gordon L. Robson for Economical Mutual Insurance Company

Issues:

The Applicant, Mark Ivan Bradburn, was injured in a motor vehicle accident on July 25, 2004. He applied for statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical denied Mr. Bradburn’s claim pursuant to section 32(1.1) of the Schedule, namely that he did not notify the insurer of his intention to apply for a benefit within 7 days of the accident or as soon as practicable after that day. The parties were unable to resolve their disputes through mediation, and Mr. Bradburn applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue in this matter is:

Has Mr. Bradburn withdrawn his application for arbitration?

Result:

Mr. Bradburn’s application for arbitration is deemed withdrawn pursuant to Rules 70.1(c) and 70.2 of the Dispute Resolution Code.
Each party is responsible for its own expenses.

BACKGROUND

Mr. Bradburn was involved in a motor vehicle accident on July 25, 2004. He did not, however, advise Economical of the accident until September 29, 2005. Once notified, Economical provided Mr. Bradburn with the Application for Accident Benefits. On October 26, 2005, Economical received Mr. Bradburn’s application for accident benefits, signed on October 20, 2005.

Economical denied Mr. Bradburn’s claim for accident benefits on the basis that he did not have any reasonable explanation for the non-compliance with section 32(1.1) of the Schedule. Mr. Bradburn applied for mediation. The mediator’s report of July 6, 2007 notes that the mediation had failed and that Economical had raised a preliminary issue claiming that Mr. Bradburn failed to notify the insurer of his intention to apply for benefits pursuant to section 32 of the Schedule.

Mr. Bradburn applied for arbitration on August 22, 2007. His application made no mention for what benefit he was claiming. Instead, the following phrases were handwritten in his application:

Complicated as have WSIB claims back to 1991 most recent 2004
Need Representation
Complicated as I have injuries back to 1991 WSIB plus 2004/25/07 car accident.
Numerous WSIB claims - March 2003, 2000, 1997, 1996, 19?
Nov 30/2006 hit by car
Need Lawyer

A pre-hearing was held on January 23, 2008 before Arbitrator Sampliner, who noted in his letter that “there are currently no specific claims for benefits under the Schedule in issue in this arbitration.”

Hearing dates were set for October 27, 28, 29 and 30, 2008 to deal with Economical’s preliminary issue of non entitlement on the basis that Mr. Bradburn unreasonably delayed filing his application for benefits.

In his pre-hearing letter, Arbitrator Sampliner notes that he had “emphasized to Mr. Bradburn that he should obtain the assistance of a qualified lawyer or paralegal representative as soon as possible to get advice about his claims and in order to prepare for and be able to proceed with the hearing in an efficient and timely manner. Mr. Bradburn acknowledged his need for legal assistance and that he would act to obtain it.”

The Commission file shows that there was a resumption of the pre-hearing on October 21, 2008 before Arbitrator Kominar. In his letter of the same date, Arbitrator Kominar notes that “The purpose of the conference call was to clarify if this matter was proceeding to hearing on October 27, 2008.” After hearing submissions from the parties Arbitrator Kominar noted that “it was made clear to me that Mr. Bradburn in no way is prepared to conduct an arbitration hearing next week. As such, I have exercised my discretion to adjourn the hearing until a time when Mr. Bradburn is better prepared to proceed.”

In giving his reasons as to why he was adjourning the hearing, Arbitrator Kominar notes:

… as Arbitrator Sampliner’s prehearing letter sets out, there are no substantive accident benefit issues in dispute at this point in time and Mr. Bradburn was unable to clarify what recourse he expects the tribunal to award him, other than mentioning results that this tribunal has no statutory authority to order, even if he had a meritorious case.

Arbitrator Kominar goes on to state:

There are a number of significant issues surrounding what, if any evidence, Mr. Bradburn intends to call at the arbitration hearing. Finally, it is clear to me that Mr. Bradburn seriously needs to consider obtaining some form of legal representation to advance his claims in a manner that will allow him to conclude that he has had a fair hearing of his case.

Arbitrator Kominar then goes on to note that the pre-hearing should be resumed on October 31, 2008 for the purposes to give Mr. Bradburn another opportunity to obtain counsel and to clarify what issues he wishes to arbitrate.

The pre-hearing was resumed on October 31, 2008 before Arbitrator Kominar. In his letter of November 3, 2008, Arbitrator Kominar notes that Mr. Bradburn had not retained legal representation but that he was continuing to inquire about getting counsel. Arbitrator Kominar further notes that:

Mr. Bradburn was again unable to articulate any substantive issues in dispute with Economical at the present time. His Application for Arbitration does not identify any such issues, but only notes that he has had some ongoing dispute with the Worker’s Compensation Board and that he needs legal advice. It does not appear from the Report of Mediator that he mediated any substantive issues either.

Given that there were no substantive issues to arbitrate, Arbitrator Kominar set down a one day Preliminary Issue Hearing regarding Mr. Bradburn noncompliance with section 32.1.1 of the Schedule. A date was set for April 14, 2009.

The Commission file shows that a hearing was set to proceed in front of Arbitrator Bujold on April 14, 2009. The hearing, however, did not proceed. A letter in the Commission file from Arbitrator Bujold notes that at the commencement of the hearing Mr. Bradburn requested an adjournment “to allow him time to retain a legal representative.” Economical objected to the adjournment request on the basis of the delays already incurred and submitted that an order of costs would be an appropriate term of the adjournment.

In his letter dated June 17, 2009, Arbitrator Bujold states:

I granted the adjournment request and deferred any issue of costs to the hearing. … The adjournment was granted on the understanding that the preliminary issue hearing is expected to proceed on June 17th, even if Mr. Bradburn has not yet hired a legal representative. In the event that Mr. Bradburn does hire a legal representative, but the representative requires an adjournment, Mr. Bradburn was advised to have his representative contact Economical counsel and the case administrator …

Finally, I confirm (as done previously by Arbitrators Kominar and Sampliner) that there are no substantive issues for arbitration and the only issue to be determined in this arbitration proceeding is the preliminary issue… .

At the commencement of the hearing on June 17, 2009, the case administrator advised that Mr. Bradburn had just called to say that he could not attend the hearing because his car had broken down. The case administrator advised that Mr. Bradburn said he could conduct the hearing on the phone. I called Mr. Bradburn from the hearing room on speaker phone. Mr. Bradburn asked that the hearing be adjourned. Mr. Bradburn stated that his car had broken down 10 miles from his home and that he had to have it towed back home and therefore he could not get to the hearing. I asked him if he had a receipt for the towing. He said he did. Economical opposed the adjournment request. I briefly recessed the hearing.

When I called back, Mr. Bradburn was no longer seeking the adjournment. Instead, he advised that he did not see any chance of succeeding at the arbitration and that he wanted the proceeding “concluded.” I then asked Mr. Bradburn if this meant he wished to withdraw from the arbitration.

However, he had hung up before responding. Not being sure that he had heard my question, I called him back. He did not answer the phone. I left a message reiterating what he had said about his chances of success and the fact that he had hung up after stating he wished the proceeding to be “concluded.” I advised him that his statement that he wished the proceeding to be concluded has been interpreted to mean he was withdrawing his application for arbitration and was not proceeding with the preliminary issue hearing. I advised him to call back in 15 minutes if this was not correct.

During this break time, counsel for Economical advised that if the hearing is being withdrawn, then Economical would not be seeking any costs.

When Mr. Bradburn did not call back within the allotted time, I called him again. He did not answer the phone. I left a message stating that his arbitration is being accepted as withdrawn and advised him that Economical would not be seeking its costs. I immediately followed up with a letter to Mr. Bradburn confirming that his words to me had been interpreted to mean that he was withdrawing his application for arbitration. At the bottom of the letter he was given the Commission’s phone number if he had questions about this letter.

From the time my June 17, 2009 letter was sent to Mr. Bradburn until the date of this decision, Mr. Bradburn has neither called nor written to the Commission regarding the interpretation that he has withdrawn his application for arbitration. Accordingly, for the following reasons I have concluded that Mr. Bradburn has withdrawn his application for arbitration.

THE LAW

Rules 70.1(c) of the Dispute Resolution Practice Code provides that:

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

(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.

Rule 70.2 of the Dispute Resolution Practice Code provides that:

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

ANALYSIS AND FINDINGS

This is a most unusual case. Mr. Bradburn made an application for arbitration without any substantive issues for arbitration. It is clear from the background of this case that on four occasions - between January 23, 2008 and April 14, 2009 - three different arbitrators made it clear to Mr. Bradburn that he should seek legal representation. Despite having been granted two adjournments of his hearing in order to seek legal counsel at the time of the third hearing date on June 17, 2009, Mr. Bradburn had still not retained legal counsel.

Although at the June 17, 2009 hearing, Mr. Bradburn first requested another adjournment of his hearing, I find that at the second phone call noted above he had effectively chosen to withdraw his application for arbitration.

Given that Mr. Bradburn has never particularized his request for accident benefits from Economical; given that at the June 17, 2009 preliminary issue hearing he stated that he did not believe he had a chance of succeeding; that he wanted the arbitration “concluded;” and that he did not respond to either the phone messages left for him at the time of hearing and to the letter sent to him on June 17, 2009, I find that it is reasonable to conclude by his words and actions that Mr. Bradburn has withdrawn his application for arbitration.

Economical advised that it was neither opposing the withdrawal, nor would it be seeking its expenses in this arbitration. Accordingly, for the reasons noted above, I find that Mr. Bradburn’s application for arbitration is deemed withdrawn pursuant to Rules 70.1(c) and 70.2 of the Code.

EXPENSES:

Each party is responsible for its own expenses.

August 5, 2009

Joyce Miller

Arbitrator

Date