Neutral Citation: 2009 ONFSCDRS 67
FSCO A07-002344

BETWEEN:

LIRIM MURTEZOVSKI
Applicant

and

ING INSURANCE COMPANY OF CANADA
Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Eban Bayefsky
Heard: By written submissions, received February 17 and March 5, 2009
Appearances:
Mr. Murtezovski represented himself
Corinne P. Habkirk and Joel E. Timmerman for ING Insurance Company of Canada

Issues:

The Applicant, Lirim Murtezovski, maintains that he was injured in a motor vehicle accident on January 10, 2006. He applied for statutory accident benefits from ING Insurance Company of Canada (“ING”), payable under the Schedule.¹ ING denied Mr. Murtezovski’s claims for certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Murtezovski 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 is:

Should Mr. Murtezovski’s arbitration be dismissed without a hearing on the grounds that the proceeding is frivolous, vexatious or commenced in bad faith, within the meaning of Rule 68.1 of the Dispute Resolution Practice Code?

Result:

Mr. Murtezovski’s arbitration is not dismissed.

EVIDENCE AND ANALYSIS:

Background

The pre-hearing conference in this matter commenced on March 3, 2008. Mr. Murtezovski’s counsel, Ms. Beckett, subsequently brought a motion to have her firm, Ledroit Beckett, removed from the record as Mr. Murtezovski’s representatives. Mr. Murtezovski was notified of the motion, but did not participate. By decision dated August 22, 2008 (in which I also dealt with certain production issues), I ordered that Ledroit Beckett be removed from the record as Mr. Murtezovski’s representatives. I noted, as well, that the Commission’s Case Administrator would attempt to contact the parties to set a date for the resumption of the pre-hearing conference, at which time dates for the arbitration hearing would be scheduled. The Case Administrator subsequently made a number of attempts to contact Mr. Murtezovski, both by telephone and in writing, but did not receive a response (although advised on one occasion by Mr. Murtezovski’s wife that he would call back on September 2, 2008). I was advised by counsel for ING that Mr. Murtezovski had recently been sentenced to a five year penitentiary sentence as a result of a conviction on various criminal charges. ING also requested that Mr. Murtezovski’s arbitration be dismissed on the basis of his failure to proceed with his arbitration.

After seeking additional information as to Mr. Murtezovski’s current address (from counsel in both the arbitration and criminal proceedings), I wrote to the parties on January 27, 2009, setting out the process to date and indicating that, based on Mr. Murtezovski’s non-participation in Ms. Beckett’s motion and his lack of response to the Commission’s attempts to schedule a resumption of the pre-hearing conference, I was prepared to notify Mr. Murtezovski of my intention to dismiss his arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious or commenced in bad faith, within the meaning of Rule 68.1 of the Dispute Resolution Practice Code (the “Code”). I indicated that the notice was being sent to both Mr. Murtezovski’s last known address as contained in the Commission’s records and to Mr. Murtezovski’s current address (according to the information we had gathered). I further indicated as follows:

Pursuant to Rule 68.3 of the Code, should Mr. Murtezovski object to the dismissal of his arbitration pursuant to Rule 68.1, or wish to make written submissions with respect to the dismissal, he shall provide the grounds upon which he objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing, and serve the material on Mr. Timmerman and file it within 20 days of the date of this notice.

Pursuant to Rule 68.4 of the Code, I will consider any written objections or submissions received and issue an order, as appropriate.

If you have any questions or require more information, please telephone this office at (416) 250–6714, or call toll free at 1–800–517–2332.

On February 16, 2009, Mr. Murtezovski contacted me directly by telephone, indicating that he was calling me pursuant to my letter of January 27, 2009 and wished to proceed with his arbitration. I drew his attention to the terms of the letter regarding written submissions. He indicated that he would provide these submissions. By letter dated February 17, 2009, received by the Commission on February 25, 2009, Mr. Murtezovski wrote the Commission (copying ING and their counsel), stating in part, as follows:

This letter is written in response to your letter written January 27, 2009; Pursuant to rule 68.1 of the Dispute Resolution Practice Code as well as Rules 68.2, 68.3 and 68.4 of the code my objections are as follows;

a) No proper communication was established

b) Failure to provide proper communication

c) I will proceed with this arbitration; litigation.

I removed Ms. Beckett as counsel in this matter as we had differences in proceeding and litigation.

The case administrator failed to contact me; in contradiction of [her] statement.

c) This letter was dated January 27, 2009 was received by me on February 8, 2009 and pursuant to this a response (ie. Telephone conversation with Mr. Eban Bayefsky) was made within 20 days. This registered letter was received by me at Millhaven Institution by hand delivery but no signature was made thus, this letter was received later than usual as per registered mail.

By letter dated March 2, 2009, received at the Commission on March 5, 2009, Mr. Timmerman responded to Mr. Murtezovski’s correspondence as follows:

It is the position of the insured is that [sic] Mr. Murtezovski remains out of time, and continues to request that this action be dismissed as per I note that [sic] I had not received the appropriate correspondence within 20 days, and as a result consider Mr. Murtezovski’s objections to be unfounded and unsupportable.

Findings

I am not prepared to dismiss Mr. Murtezovski’s arbitration without a hearing pursuant to Rule 68.1 of the Code.

Rule 68 begins by stating that an arbitrator “may” dismiss a proceeding without a hearing; the Rule concludes by stating that an arbitrator “may make an order on such terms as he or she considers just.” Rule 68 is fundamentally a discretionary provision. This coincides with Rules 1.1 and 81.1 of the Code, by which the Rules are to be broadly interpreted to achieve the most fair and effective resolution of disputes, and by which technical requirements under the Rules can be set aside, as considered just in the circumstances. It is also consistent with the significance of dismissing a matter without a hearing.

In my view, this is an appropriate case in which to exercise my discretion to allow the matter to proceed. Pursuant to my letter of January 27, 2009, Mr. Murtezovski was to have responded in writing to both the Commission and Mr. Timmerman by February 16, 2009. Mr. Murtezovski failed to do this, but did contact me by telephone on February 16, 2009. Mr. Murtezovski subsequently provided written submissions to the Commission and Mr. Timmerman, dated February 17, 2009 and received by the Commission on February 25, 2009. I do not accept Mr. Murtezovski’s submissions regarding any delays or failures in communicating with him about the various steps in this proceeding. I note in this regard that none of the correspondence to Mr. Murtezovski was returned to the Commission, including the Case Administrator’s letter to him of September 9, 2008, in which the Case Administrator set out the various attempts to contact Mr. Murtezovski to arrange a date for the resumption of the pre-hearing conference. I also note that he received my most recent correspondence of January 27, 2009 in time to respond within the 20 days, despite his personal circumstances. Nevertheless, Mr. Murtezovski did contact me within the 20 days and indicated that he wished to proceed with his arbitration. He reiterated this shortly afterwards in correspondence to myself, and copied to ING and their counsel.

Mr. Murtezovski failed, without explanation, to comply with the technical requirements of Rule 68 and my order. I have rejected his reasons for failing to participate in the earlier stages of this proceeding. Nevertheless, these facts do not bind me to dismissing the matter without a hearing. Pursuant to the noted provisions of the Code, I retain a basic discretion to allow the matter to proceed, should the circumstances warrant. In this particular case, I find it significant that Mr. Murtezovski contacted the Commission within the allotted 20 days to express his intention to proceed with his arbitration and that he confirmed this in writing shortly thereafter. While there are a number of problems with Mr. Murtezovski’s conduct to date, I am satisfied that he has demonstrated an intention to proceed with his arbitration and that it would not be appropriate to take the significant step of dismissing the matter without a hearing.

As indicated in my January 27, 2009 correspondence, I was prepared to notify Mr. Murtezovski of my intention to dismiss his arbitration without a hearing based on his non-participation in his former counsel’s motion to be removed from the record and his lack of response to the Commission’s attempts to reschedule the pre-hearing conference. I was under the impression that Mr. Murtezovski had abandoned his arbitration and/or that the proceeding was frivolous, vexatious or commenced in bad faith, within the meaning of Rule 68 of the Code. Despite his technical breaches, I am now satisfied that Mr. Murtezovski has not abandoned his arbitration and that he intends to proceed with it. I am also not prepared to conclude at this point that Mr. Murtezovski’s arbitration is frivolous, vexatious or commenced in bad faith.

In all of the circumstances, I find that Mr. Murtezovski should be permitted at this stage to proceed with his arbitration. The Case Administrator will contact the parties to schedule the resumption of the pre-hearing conference.

EXPENSES:

Any issue of expenses arising from this proceeding is reserved to the hearing arbitrator, to be dealt with at the conclusion of this matter.

June 3, 2009

Eban Bayefsky
Arbitrator

Date

ARBITRATION ORDER

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

Mr. Murtezovski’s arbitration is not dismissed.