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

Neutral Citation: 2009 ONFSCDRS 118

FSCO A08-000024

BETWEEN:

ARSEN ARZUMANYAN Applicant

and

AVIVA CANADA INC. Insurer

Before: Anne L. Sone Heard: December 15, 2008, at the offices of the Financial Services Commission of Ontario in Toronto. Final written submissions due by January 14, 2009 Appearances: No one for Mr. Arzumanyan¹ Frances G. Salvaggio for Aviva Canada Inc.

Issues:

The Applicant, Arsen Arzumanyan, was injured in a motor vehicle accident on February 11, 2006. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.² The parties were unable to resolve their disputes through mediation, and Mr. Arzumanyan 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 case are:

Is Mr. Arzumanyan entitled to receive payments at the rate of $100 per week for housekeeping and home maintenance services performed by Gagik Soghomonyan from February 12, 2006, onwards, pursuant to section 22 of the Schedule?
Is Aviva liable to pay Mr. Arzumanyan’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Arzumanyan entitled to interest for overdue payment of benefits, pursuant to section 46(2) of the Schedule?

Result:

Mr. Arzumanyan’s claims are dismissed.

EVIDENCE AND ANALYSIS:

Background:

A pre-hearing in this matter was scheduled for April 17, 2008, at 2:00 p.m. at the offices of the Financial Services Commission of Ontario. The Commission sent a Notice of Pre-Hearing Discussion, dated February 6, 2008, to Mr. Arzumanyan at his last known address.

At the pre-hearing of April 17, 2008, Ms. Samiya Ahmad, student-at-law, represented Mr. Arzumanyan. Mr. Arzumanyan did not attend at the scheduled time for the pre-hearing, and did not provide any explanation for his non-attendance.

Ms. Ahmad, on behalf of the Zayouna Law Firm brought a motion for an order to remove the Zayouna Law Firm as solicitors of record for the Applicant, Mr. Arsen Arzumanyan.

The Commission sent a Notice of Motion to Mr. Arzumanyan at his last known address. The Notice advised him that the purpose of the motion was to remove Zayouna Law Firm as solicitors of record for him.

Pursuant to Rule 9.7 of the Dispute Resolution Practice Code (Fourth edition, Updated October 2003) (the “Code”), a representative who seeks to withdraw from a proceeding must:

(a) provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding;

(b) provide the last known address, telephone number and electronic transmission address (if any) of the represented party.

The Zayouna Law Firm had not at that time provided the Commission with the last known telephone number for Mr. Arzumanyan. I requested that it do so, so that I could deal with the Zayouna Law Firm’s motion.

Pursuant to its amended motion, I permitted the Zayouna Law Office to withdraw as Mr. Arzumanyan’s representative in this proceeding, in a decision dated July 25, 2008, as it had complied with the provisions of Rule 9.7 and 9.8 of the Code.

A re-scheduled pre-hearing was held on December 11, 2008, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. The Commission sent Mr. Arzumanyan a Notice of Pre-Hearing Discussion dated July 22, 2008 to his last known address. Mr. Arzumanyan once again did not attend.

The re-scheduled pre-hearing scheduled for December 11, 2008 was the second pre-hearing which Mr. Arzumanyan failed to attend.

In a letter dated December 15, 2008, I stated that since Mr. Arzumanyan has missed two pre-hearings, had not responded to the Commission or his former representatives and had not provided the Dispute Resolution Group with a written (or any) notice of his change of address or telephone number, Aviva had asked me to dismiss this proceeding without a hearing. I also noted that it appeared that Mr. Arzumanyan no longer wished to pursue his claims against Aviva.

I also advised the parties that pursuant to Rule 68 of the Code, an arbitrator may dismiss a proceeding without a hearing where the proceeding is found to be vexatious, frivolous or is commenced in bad faith. I warned Mr. Arzumanyan that given the history of this case, I was inclined to dismiss this proceeding on the grounds that it has become vexatious pursuant to Rule 68.1 of the Code.

I further advised Mr. Arzumanyan and Aviva that if either one objected to a dismissal of this proceeding or wished to make written submissions with respect to the dismissal pursuant to Rule 68, Mr. Arzumanyan or Aviva must:

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

(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

Finally, I stated that after 20 days, I would then consider any written submissions received and may make an order on such terms as I consider just.

Law:

Rule 68.1 provides that an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. Before dismissing a proceeding under this Rule, the adjudicator is to deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

Under Rule 68.3, where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

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

(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

Rule 68.4 provides that an adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.

Conclusion:

Due to Mr. Arzumanyan’s failure to attend at two scheduled pre-hearings, and his own counsel’s inability to get in touch with him, Aviva sought to dismiss Mr. Arzumanyan’s case without a hearing. Mr. Arzumanyan failed to attend despite notices and correspondence from the Commission and his counsel. He also failed to advise the Commission and his counsel of any change of address and telephone number, as is required by Rule 9.1(c) of the Code.

It appeared that Mr. Arzumanyan no longer wished to pursue his claims, in effect abandoning his case for whatever reason. As a result, I provided him with notice following his failure to attend the pre-hearing resumption on December 11, 2008, that his application for arbitration may be dismissed. I also gave Mr. Arzumanyan and Aviva an opportunity to object to a dismissal of the proceeding pursuant to Rule 68.3 of the Code.

I find that Mr. Arzumanyan has effectively abandoned his case. Under these circumstances it would be unfair and unduly costly to the Insurer to continue to require it to prepare for and attend at a hearing involving various issues when the Applicant clearly does not wish to continue with the proceeding. I therefore dismiss this proceeding on the basis that it has become vexatious pursuant to Rule 68.1 of the Code. Accordingly, I dismiss Mr. Arzumanyan’s claims for housekeeping and home maintenance benefits and interest without a hearing.

EXPENSES:

Aviva did not request expenses in connection with the dismissal of this proceeding.

September 2, 2009

Anne L. Sone Arbitrator

Date