Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 130
FSCO A09-002056
BETWEEN:
KANASUBRAMANIAM SIVASUBRAMANIAM
Applicant
and
TD GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: August 13, 2010, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: No one appearing for Mr. Sivasubramaniam Petros Yannakis for TD General Insurance Company
Issue:
The issue in this hearing is whether Mr. Sivasubramaniam’s arbitration should be dismissed without a hearing on the merits of his claims and whether TD General Insurance Company should be awarded its expenses. These issues arise because neither Mr. Sivasubramaniam nor any person representing him has ever appeared at proceedings before the Commission.
Background and Facts:
Kanasubramaniam Sivasubramaniam was injured in a motor vehicle accident on July 25, 2007. He applied for and received some statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.1 TD General terminated benefits and the parties were unable to resolve their disputes through mediation. Mr. Sivasubramaniam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The following issues were listed as those in dispute in the application for arbitration dated July 24, 2009:
Is Mr. Sivasubramaniam entitled to a weekly income replacement benefit from April 23, 2008 to present?
Is Mr. Sivasubramaniam entitled to a weekly attendant care benefit of $415.55 from June 2008 to July 2008?
Is Mr. Sivasubramaniam entitled to his expenses for housekeeping and home maintenance at the rate of $100 weekly from April 1, 2008 to present?
This matter first came on for a pre-hearing discussion of the issues in dispute on May 3, 2010 at the Commission offices. A Notice of Pre-hearing Discussion was sent to Mr. Sivasubramaniam at the home address provided to the Commission and to his counsel, Ngozi Oti, who was identified on the application for arbitration filed with the Commission. Neither Mr. Sivasubramaniam nor Ms. Oti appeared. The matter was held down while the Commission’s case administrator called counsel. Counsel reported that she had sent a fax transmission to the Commission on April 30, 2010 indicating that she would not appear because she had been advised that Mr. Sivasubramaniam had changed lawyers. No such fax transmission was on the Commission file. Counsel then sent the Commission another copy of the fax transmission.
Mr. Sivasubramaniam could not be reached at his home telephone number.
Counsel for TD General advised that he had information on his file that another lawyer might be involved. Counsel for TD General provided that contact information to the Commission.
As neither Mr. Sivasubramaniam nor anyone representing him appeared on May 3, 2010, at the request of counsel for TD General, I adjourned the matter to another date for a hearing. My pre-hearing letter was sent to Mr. Sivasubramaniam at his home address and to Ms. Oti, counsel of record. Out of an abundance of caution, despite the fact that the Commission had never been informed of a change in counsel, I also copied the letter to the counsel identified by TD General, Anushika Anthony. That letter clearly indicated that a further proceeding had been scheduled for August 13, 2010 for disposition. It reads:
Given that no one appeared today on behalf of Mr. Sivasubramaniam and it is not clear to the Commission that any one will appear on his behalf, this matter has been set for hearing before me for disposition. If Mr. Sivasubramaniam and/or his counsel of record appear on the hearing date, however, the matter shall be converted to a pre-hearing discussion.
My letter also indicated that counsel for TD General advised that he may seek his costs in respect of the May 3rd proceeding at the second hearing date.
The day after the pre-hearing discussion, Ms. Anthony wrote to the Commission to advise that she had been retained by Mr. Sivasubramaniam on October 19, 2009 but that he changed legal representation on or before the end of October 2009 and she provided the new lawyer’s contact information. Ms. Anthony copied her letter to this third lawyer, Mr. Zayouna, the original lawyer, Ms. Oti, and to counsel for TD General.
No other correspondence has ever been received by the Commission to clarify the identity of Mr. Sivasubramaniam’s representation in respect of this arbitration matter.
A Notice of Hearing for August 13, 2010 was sent to Mr. Sivasubramaniam at his home address. The notice was also sent to Ms. Oti and to counsel for TD General. The notice clearly indicated that the matter could proceed even in the absence of the applicant:
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 the arbitration proceedings.
The matter then came on for hearing on August 13, 2010. Only counsel for TD General appeared. The matter was held down again while the Commission made inquiries about the absence of Mr. Sivasubramaniam and his counsel. Mr. Sivasubramaniam was not at home. Again, out of an abundance of caution, Mr. Zayouna’s office was contacted. They could not locate a file pertaining to Mr. Sivasubramaniam.2
Counsel for TD General asked that I find that Mr. Sivasubramaniam had abandoned his claims and that I order the matter dismissed with costs to TD General.
ANALYSIS:
Mr. Sivasubramaniam has never sent any correspondence to the Commission indicating that he has changed his lawyer from the person identified on the application for arbitration. The lawyer identified on the application for arbitration has never appeared for Mr. Sivasubramaniam.
Any information the Commission might have about possible other counsel has been obtained through its own inquiries. Despite our inquiries, however, no other lawyer representing Mr. Sivasubramaniam has ever appeared before the Commission or sent correspondence indicating their intention to act for him.
None of the notices or correspondence sent to Mr. Sivasubramaniam at the address the Commission has on file has ever been returned to the Commission. There is no information before me to indicate that Mr. Sivasubramaniam has ever called the Commission to explain or clarify his failures to appear. I am satisfied that there is no reasonable explanation for the applicant’s absence at the proceedings. Given all of the facts, I find that Mr. Sivasubramaniam has had proper and ample notice that his claims would proceed at the Commission and he has had notice that an arbitrator may dispose of the case in his absence.
Rule 37.7 of the Commission’s Dispute Resolution Practice Code permits an arbitrator to proceed with a hearing in the absence of a party where notice of a hearing has been sent. Therefore I find that, having failed to attend at two properly scheduled proceedings before the Commission, the applicant has abandoned pursuit of his claims and his arbitration is therefore dismissed.
Counsel for TD General has appeared at both proceedings prepared to move the process forward. His client appeared in person at the Commission for the first scheduled pre-hearing discussion. Some time was spent while the Commission stood the proceedings down to make its own inquiries and ascertain the reason for the applicant’s absence. I am satisfied that TD General has been put to some expense attending at two proceedings for which the applicant and/or counsel did not show.
Therefore, I find that TD General is entitled to its reasonable costs for preparation for and attendance on two occasions, which are fixed at $750.
November 9, 2010
Rosemary Muzzi Arbitrator
Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 130
FSCO A09-002056
BETWEEN:
KANASUBRAMANIAM SIVASUBRAMANIAM
Applicant
and
TD GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under Section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The application for arbitration is dismissed.
TD General is entitled to costs fixed in the amount of $750.
November 9, 2010
Rosemary Muzzi Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- After the close of the proceeding, the Commission’s case administrator informed me that someone from Mr. Zayouna’s office called to inform that a file had been located but that the lawyer likely to take charge of the matter was not in the office.