Callaghan v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2009 ONFSCDRS 179

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 179

FSCO A08-002559

BETWEEN:

SHELDON CALLAGHAN

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before: Joyce Miller

Heard: October 1, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Mr. Callaghan

Benjamin Laflamme for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Sheldon Callaghan, was injured in a motor vehicle accident on October 29, 2007. He applied for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ Security National denied his claim for four treatment plans. The parties were unable to resolve their disputes through mediation, and Mr. Callaghan 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 hearing is:

Has Mr. Callaghan withdrawn his Application for Arbitration?

Result:

Mr. Callaghan’s Application for Arbitration is deemed withdrawn pursuant to Rule 70.2 of the Dispute Resolution Practice Code.
Each party is responsible for their own expenses.

BACKGROUND

Mr. Callaghan applied for arbitration on November 27, 2008. In his Application for Arbitration Mr. Callaghan claimed $6,311.50 for four treatment plans with Therapy Arts Group. In addition, Mr. Callaghan claimed $775 for a section 24 rebuttal report. This latter item had not been mediated.

The Arbitration Chronology Report indicates that:

On January 5, 2009 the Case Administrator contacted the parties and set a date for a pre-hearing on July 13, 2009 at 10:00 a.m.
On July 10, 2009, the parties rescheduled the pre-hearing to October 1, 2009 at 2 p.m.
On July 15, 2009, the Case Administrator recorded the following statement:

Received fax [from Applicant’s Representative Lawrence H. Calenti] to be removed as rep for applicant. [S]poke with applicant he said that he no longer wants to proceed with his claim and that he hasn’t been informed that his rep no longer weants [sic] to represent him yet, I told him to read the letter and call me back. He asked if there was something that I could fax him to sign so that he could get out of the matter. [emphasis added]

On September 17, 2009, the Case Administrator noted: “Called all parties and told them that they need to attend the PH, app’s rep has not been released yet, and they all need to attend to sort our [sic] the claim.”
On September 21, 2009, the Case Administrator noted: “Received a letter from above [Applicant] saying that Mr. Calenti no longer represents him.”

On October 1, 2009 I presided at the pre-hearing. Mr. Callaghan did not appear. I called the two numbers on file, his cell phone and residence. There was no response to my call on his cell phone. When I called his residence, a woman who identified as his wife answered. She advised Mr. Callaghan did not appear at the pre-hearing as he did not want to proceed with this arbitration.

Counsel for Security National advised that Security National would not dispute Mr. Callaghan’s withdrawal from the arbitration. In addition, he advised that Security National would not be seeking its costs in this arbitration.

THE LAW

Rule 70.2 of the Dispute Resolution Practice Code provides that:

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

ANALYSIS AND FINDINGS

It is very clear from the Arbitration Chronology Report that on July 15, 2009, Mr. Callaghan wished to withdraw his Application for Arbitration. In addition, the fact that Mr. Callaghan agreed to his counsel getting off the record and he did not appear at the pre-hearing and the fact that his wife confirmed that he did not want to continue with his Application for Arbitration leads me to the obvious conclusion that Mr. Callaghan wished to withdraw his Application for Arbitration. Since Security National did not oppose Mr. Callaghan’s withdrawal from the arbitration, I find that pursuant to Rule 70.2 of the Dispute Resolution Practice Code

Mr. Callaghan’s Application for Arbitration is deemed withdrawn.

EXPENSES:

Security National did not ask for its expenses. Accordingly, I find that each party is responsible for their own expenses.

December 30, 2009

Joyce Miller Date

Arbitrator