Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 53
FSCO A07-001740
BETWEEN:
ROSA BENJAMIN
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
DECISION ON A MOTION TO DISMISS
Before: Susan Sapin
Heard: April 15, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Joel P. Freedman for Ms. Benjamin
Mary Anne Motha for Belair Insurance Company Inc.
Issues:
The Applicant, Rosa Benjamin, was injured in a motor vehicle accident on June 10, 2004. She applied for statutory accident benefits (weekly caregiver and housekeeping) from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.1 Belair denied benefits. The parties were unable to resolve their disputes through mediation, and Ms. Benjamin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, on August 17, 2007.
Due to the delay in moving this matter forward as a result of inaction on the part of the Applicant, Belair brought this motion under Rule 67.3 of the Dispute Resolution Practice Code (Fourth Edition — Updated October 2003) to dismiss Ms. Benjamin’s Application for Arbitration on the basis of her failure to pursue it. Belair further requested an order for costs thrown away in the amount of $500.
For the reasons set out below, I dismissed Belair’s motion and awarded Belair costs of $250 payable forthwith. I also adjourned the arbitration hearing scheduled to begin Monday, October 19, 2009 to December 7, 8, 9 and 10, 2009.
Reasons:
Ms. Benjamin appears to have had considerable difficulty finding and retaining counsel. Prior to the first pre-hearing scheduled for January 29, 2008, Ms. Benjamin’s counsel sought to withdraw as her legal representative due to a breakdown of the solicitor-client relationship and was permitted to do so by Arbitrator Alves on February 15, 2008. Arbitrator Alves then adjourned the pre-hearing to March 28, 2008, to allow Ms. Benjamin time to obtain new counsel. The pre-hearing was again adjourned to July 4, 2008 at Ms. Benjamin’s request to allow her to deal with her father’s illness. New counsel not having been retained despite Ms. Benjamin’s efforts, Arbitrator Alves further adjourned the pre-hearing to October 29, 2008, peremptory to the Applicant.
Ms. Benjamin participated at the pre-hearing on October 29, 2008 but still had not retained counsel. An arbitration hearing was scheduled for October 19, 20, 21 and 22, 2009, and the pre-hearing was once again adjourned to March 25, 2009, peremptory to the Applicant, to deal with outstanding production requests. Ms. Benjamin was to either obtain counsel or advise if she wished to represent herself in the arbitration proceeding by January 31, 2009.
The deadline passed with no communication from Ms. Benjamin. Neither did Ms. Benjamin attend the pre-hearing on March 29, 2009, despite the fact that she agreed to this date, was sent notice of it, was reminded of it, and it was peremptory to her. At the pre-hearing, Belair advised it would bring a motion to dismiss the arbitration proceeding. The motion was scheduled for April 15, 2009 at 10:00 a.m. at the Commission. Ms. Benjamin was advised of this by letter dated March 25, 2009 and a further notice from the Commission.
Finally, on April 8, 2009, the Commission received faxed correspondence from the law office of Joel P. Freedman, Barrister and Solicitor, to the effect that Ms. Benjamin had retained him as counsel and he would attend the motion.
Mr. Freedman did attend and explained that his client’s failure to appear at previous proceedings or to advise of her intentions was due to her physical and emotional condition, her adverse reaction to her father’s poor health and her inability to retain counsel. He advised that he had impressed upon her the importance and necessity of following through with the arbitration proceeding she herself had commenced and of conducting herself more professionally. He submitted that although the delay due to Ms. Benjamin’s inaction has been somewhat vexatious to the Insurer, Belair did not provide evidence of significant prejudice. Mr. Freedman submitted that if I were to dismiss Belair’s motion, Ms. Benjamin would participate in reasonable insurer examinations as permitted under the Schedule, and Mr. Freedman would undertake to provide relevant documents requested by Belair.
I am satisfied that Ms. Benjamin is now in good hands. Accordingly, Belair’s motion is dismissed. Ms. Benjamin is required to produce the following documents, or provide proof of best efforts to do so, within 30 days of the date of this decision:
The disability insurance file from Zurich Insurance Company;
A decoded OHIP summary from 2002 to 2006;
Clinical notes and records from Dr. Agate 2001 to 2006;
Summary of prescription medications fro 2001 to 2006;
Clinical notes and records of treating physicians from 2001 to 2006; and
Income tax returns for 2001 to 2006.
Belair asked for costs of $500 thrown away, payable forthwith, on the basis of Ms. Benjamin’s failure to attend the previous pre-hearing. As pointed out by Belair, it is the Applicant’s responsibility to pursue and prove her claim, not the Insurer’s. Taking into account Mr. Freedman’s submissions and the circumstances as a whole, I find costs thrown away of $250, payable by Ms. Benjamin to Belair forthwith, to be reasonable.
April 30, 2009
Susan Sapin
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 53
FSCO A07-001740
BETWEEN:
ROSA BENJAMIN
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Belair’s motion to dismiss Ms. Benjamin’s arbitration proceeding is dismissed.
Ms. Benjamin shall produce the following documents, or provide proof of best efforts to do so, within 30 days of the date of this Order:
The disability insurance file from Zurich Insurance Company;
A decoded OHIP summary from 2002 to 2006;
Clinical notes and records from Dr. Agate from 2001 to 2006;
Summary of prescription medications from 2001 to 2006;
Clinical notes and records of treating physicians from 2001 to 2006; and
Income tax returns from 2001 to 2006.
Ms. Benjamin shall pay to Belair costs thrown away of $250 forthwith.
April 30, 2009
Susan Sapin
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.