Jajenthiran Vadivelu v. RBC General Insurance Company, 2010 ONFSCDRS 109

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 109

FSCO A08-001780

BETWEEN:

JAJENTHIRAN VADIVELU

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Joyce Miller

Heard: May 14, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Vadivelu did not appear

Aldo Picchetti for RBC General Insurance Company

Issues:

The Applicant, Jajenthiran Vadivelu, was injured in a motor vehicle accident on June 11, 2007. He applied for statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ RBC denied his claim for medical benefits and costs of examinations. The parties were unable to resolve their disputes through mediation, and Mr. Vadivelu 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 hearing are:

Should Mr. Vadivelu’s arbitration be dismissed without a hearing on the grounds that it is frivolous, vexatious or has been commenced in bad faith, pursuant to Rules 68.1 and 68.2 of the Dispute Resolution Practice Code?

Result:

The arbitration is dismissed.
Mr. Vadivelu shall pay RBC $1,000 in costs.

BACKGROUND:

The Commission records show the following:

A pre-hearing discussion in this case was held on February 19, 2009. Although proper notification was given, Mr. Vadivelu did not appear. In her letter to the parties on February 19, 2009, the prehearing Arbitrator noted that Mr. Vadivelu was contacted on his cell phone. He advised that he would call back in 30 minutes. He never called back. Several calls made to his cell phone were not answered.

At the request of RBC, the arbitrator issued a notice that the proceeding may be dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code (the “Code”).

Rules 68.1 and 68.2 of the Code provide:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

A resumption of the prehearing was set for September 28, 2009. A notice of the resumed pre-hearing was sent on June 29, 2009 to Mr. Vadivelu’s known address. Mr. Vadivelu did not attend at the prehearing. His counsel was present and the issues for arbitration were agreed upon as well as a date for the arbitration, scheduled to commence on Monday June 14, 2010.

Sometime in April 2010, Mr. Vadivelu’s solicitors of record advised that they would be bringing a motion (pursuant to Rules 9.7 and 9.8 of the Code) for an order permitting them to remove themselves as solicitors of record for the Applicant. The motion scheduled to be heard on May 19, 2010 by teleconference, was heard by Arbitrator Feldman.

Arbitrator Feldman issued his decision on June 2, 2010. In his decision, allowing the firm of Mazin, Rooz, Mazin, to remove themselves as solicitors of record, Arbitrator Feldman notes that the motion material was sent to Mr. Vadivelu at his last known address, as well as an alternate address. Mr. Feldman further notes that on the day of the motion he attempted to contact Mr. Vadivelu. His home phone was not in service and there was no response at his alternate number, his cell phone.

The basis for the decision to allow Mr. Vadivelu’s solicitors to remove themselves as solicitors of record was “... that there has been a breakdown of the solicitor-client relationship between the Applicant and the firm of Mazin, Rooz, Mazin and that this firm currently has no meaningful instructions from the Applicant.”

The Notice of the arbitration hearing date was sent to Mr. Vadivelu on September 28, 2009.

The Notice of Hearing states:

You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the Arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of arbitration proceedings.² [emphasis added]

As required by Rule 9.1(c)³, Mr. Vadivelu did not provide the Commission with a change of address. Accordingly, it is presumed that Mr. Vadivelu’s address on file is a valid address and that he received his Notice of Hearing.

ANALYSIS AND FINDINGS

Mr. Vadivelu did not appear for this hearing. Accordingly, pursuant Rule 37.7 of the Code to, as articulated in the Notice of Hearing, I proceeded to dispose of the case in Mr. Vadivelu’s absence.

I find that Mr. Vadivelu had clear notice from the pre-hearing arbitrator’s letter of February 19, 2009 that the dismissal of his application for arbitration was being considered. I find Mr. Vadivelu has been provided with ample opportunity to advise the Commission of his intention to proceed with his arbitration, but has failed to do so. I find that despite clear notice of the hearing to dismiss his arbitration Mr. Vadivelu chose not to appear.

I find that Mr. Vadivelu completely failed in his obligations to support his arbitration claim. I agree with RBC’s submission that by not attending the two prehearings, not participating in the motion to have his solicitors removed from the record and not attending this arbitration hearing Mr. Vadivelu has shown that he has no intention of proceeding or participating in this process and has abandoned his claim for statutory accident benefits.

Accordingly, for these reasons, I find that Mr. Vadivelu’s application for arbitration is dismissed.

EXPENSES:

Section 281(11) of the *Insurance Act* provides:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

RBC asks for the return of its filing fee, in the amount of $3,000. Pursuant to the expense regulations, I do not have the jurisdiction to award an insurer its filing fee.

RBC requested $3,000 in costs for the services of its counsel. RBC, however, did not present a Bill of Costs to substantiate this amount for two prehearings and the brief attendance at this hearing. There is no evidence presented that counsel prepared for a full hearing. In fact counsel advised at the beginning of the hearing that he did not expect the hearing to proceed. In my view, $3,000 appears to be excessive.

Accordingly, for these reasons, I exercise my discretion to award RBC $1,000 for its expenses.

August 30, 2010

Joyce Miller Date

Arbitrator