Fathalla Elmutiagin v. Kingsway General Insurance Company, 2009 ONFSCDRS 85

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 85

FSCO A08-000227

BETWEEN:

FATHALLA ELMUTIAGIN

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Lloyd (J.R.) Richards

Heard: October 3, 2008 via teleconference

Appearances: Mr. Christos Nicolis for Mr. Elmutiagin

Ms. Marla Emdin for Kingsway General Insurance Company

Issues:

The Applicant, Fathalla Elmutiagin, was injured in a motor vehicle accident on October 18, 2004. He applied for and received statutory accident benefits from Kingsway General Insurance Company (“Kingsway”), payable under the Schedule.¹ Kingsway terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Elmutiagin 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 before me is:

Should Mr. Elmutiagin’s application be dismissed as frivolous, vexatious or brought in bad faith, pursuant to Rule 68 of the Dispute Resolution Practice Code (the “Code”)?

Result:

Mr. Elmutiagin’s application is dismissed.

EVIDENCE AND ANALYSIS:

Mr. Elmutiagin filed an Application for Arbitration with the Financial Services Commission of Ontario (“FSCO”) dated January 30, 2008. The initial pre-hearing discussion in this case was scheduled to take place on June 3, 2008, by telephone conference call arranged by FSCO. As noted by Arbitrator Suesan Alves, in her letter of the same date, Mr. Elmutiagin did not attend at the pre-hearing for reasons unknown to his counsel. The pre-hearing was rescheduled to July 16, 2008, on consent of the parties, as all were in agreement that Mr. Elmutiagin’s presence was necessary.

On July 16, 2008, I conducted the rescheduled pre-hearing by telephone conference call. At this pre-hearing, Mr. Elmutiagin’s counsel advised me that Mr. Elmutiagin was not in Canada and could not be reached for instructions. I set August 22, 2008 as the date for a further resumed pre-hearing. Mr. Elmutiagin’s counsel was to contact Mr. Elmutiagin to have him present at the resumed pre-hearing.

I conducted the resumed pre-hearing on August 22, 2008 by telephone conference call.

Mr. Elmutiagin was again not present at the pre-hearing. Mr. Elmutiagin’s counsel advised me that he had made best efforts but had not been able to locate Mr. Elmutiagin. I set a date for the hearing of the issues and also scheduled a further resumed pre-hearing for October 3, 2008.

I conducted the resumed pre-hearing on October 3, 2008. Mr. Elmutiagin’s counsel sought permission to withdraw from the proceedings as counsel. Kingsway took no position on the request. Mr. Elmutiagin was again not present at the pre-hearing discussion and Kingsway sought dismissal of the proceedings pursuant to Rule 68 of the Code.

I permitted Mr. Elmutiagin’s counsel to withdraw based on the following submissions:

Mr. Nicolis, who is Mr. Elmutiagin’s counsel, stated that to the best of his knowledge, Mr. Elmutiagin last resided in London, Ontario in 2005.
In October 2006, Mr. Elmutiagin contacted Mr. Nicolis’ office to state that he was residing in New York, USA. Mr. Elmutiagin indicated that he would provide a mailing address. Mr. Elmutiagin never provided the mailing address.
In March 2007 Mr. Elmutiagin called Mr. Nicolis’ office to advise that he was in Sudan. Mr. Elmutiagin provided an email address.
Mr. Elmutiagin contacted Mr. Nicolis’ office in November 2007 to advise that he was again residing in New York, USA.
At the time this arbitration proceeding commenced in January 2008, Mr. Elmutiagin had not provided a mailing address. Mr. Nicolis consented to Mr. Elmutiagin’s request that counsel’s address be listed as Mr. Elmutiagin’s address.
Mr. Nicolis had a telephone discussion with Mr. Elmutiagin on April 8, 2008 and advised Mr. Elmutiagin of the June 3, 2008 pre-hearing. The conversation was confirmed by email.
Mr. Nicolis was unable to contact Mr. Elmutiagin in the days leading up to the June 3, 2008 pre-hearing, despite leaving telephone messages.
Mr. Nicolis was able to contact Mr. Elmutiagin by telephone on July 15, 2008. Mr. Elmutiagin advised that he had been in Sudan as his father had passed away. Mr. Elmutiagin also advised that he had returned to New York. Mr. Elmutiagin stated that he no longer had access to email. Mr. Elmutiagin advised, in a further telephone discussion on July 16, 2008, that he would provide a fax number and mailing address.

Mr. Elmutiagin did not provide the information.

Mr. Nicolis has had no contact with Mr. Elmutiagin since July 16, 2008.
Mr. Nicolis’ office contacted an acquaintance of Mr. Elmutiagin on September 25, 2008. The acquaintance advised that he had not been in contact with Mr. Elmutiagin for approximately 6 months and that he had no contact information for Mr. Elmutiagin.

I accepted the submissions as Mr. Elmutiagin was not present to challenge them.

I wrote to Mr. Elmutiagin and Kingsway by letter dated November 3, 2008. I forwarded Mr. Elmutiagin’s copy of the correspondence to Mr. Nicolis’ office as Mr. Elmutiagin has never provided updated contact information to his counsel and has no listed address. Further, as reported to his counsel, Mr. Elmutiagin no longer has an email account.

In my letter I gave written notice to the parties of my intention to dismiss Mr. Elmutiagin’s application as frivolous and vexatious pursuant to Rule 68 of the Code. Further, I advised Mr. Elmutiagin that if he objects to the proposed dismissal of his application, he must:

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

(b) serve this material on the Insurer and file it with the Commission within 20 days of the date of this letter, which is being provided as notice under Rule 68.2.

I also advised Mr. Elmutiagin that I would consider any written objections or submissions from him.

As of the date of these reasons, FSCO has received no response from Mr. Elmutiagin to my November 3, 2008 letter.

Mr. Elmutiagin has failed to participate meaningfully during these proceedings. He has an obligation to maintain contact with his counsel to provide instructions. I accept that Mr. Nicolis has made best efforts to get instructions from Mr. Elmutiagin.

Mr. Elmutiagin has chosen not to pursue his arbitration. I therefore find that this proceeding is frivolous and vexatious and should be treated as having been abandoned. I see no basis on which to proceed further with this matter. For the reasons stated herein and in my November 3, 2008 letter, Mr. Elmutiagin’s arbitration is hereby dismissed as frivolous and vexatious, pursuant to Rule 68 of the Code.

EXPENSES:

If the parties wish to address expenses, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Code.

June 25, 2009

Lloyd (J.R.) Richards

Arbitrator

Date