Joseph O’Bryan v. Personal Insurance Company of Canada, 2010 ONFSCDRS 143

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 143

FSCO A09-001141

BETWEEN:

JOSEPH O’BRYAN

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Arbitrator Richard Feldman

Heard: By written hearing, conducted in accordance with Rule 68 of the Dispute Resolution Practice Code

Issues:

The issue is:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, should this application be dismissed without a hearing because it is frivolous or vexatious?

Result:

This application is dismissed.

EVIDENCE AND ANALYSIS:

The Application for Arbitration was filed in May 2009 and the Response was filed in June 2009.

The pre-hearing conference was originally scheduled to take place on April 8, 2010. On that date, the Applicant failed to attend. By e-mail sent late the night before, the Applicant informed his representative that he was too ill to attend. The Insurer did not seek its expenses and agreed to adjourn the pre-hearing conference to September 1, 2010, at 2:00 p.m., at the offices of the Financial Services Commission of Ontario.

On September 1, 2010, the Applicant again failed to attend the pre-hearing conference. On August 25, 2010, the Applicant apparently advised his representative, Mr. Carranza, that he had to leave Canada to deal with an urgent matter and that he would not be returning to Canada until some date later in September 2010. This information was not conveyed by Mr. Carranza to Mr. Naimark, counsel for the Insurer, until August 31, 2010. In case Mr. Carranza needed to contact the Applicant, the Applicant also provided Mr. Carranza with a telephone number at which he could be reached but Mr. Carranza advised me that he was unable to contact the Applicant when he called the number in question.

On September 1, 2010, the Insurer sought its “costs thrown away” and indicated that it was considering bringing a motion to have this application dismissed. It was unclear to me at that point in time whether the Applicant was actually interested in pursuing his claims against Personal. I was therefore reluctant to set the matter down for hearing.

Instead, I adjourned the pre-hearing conference to November 5, 2010, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. This is a date that was agreed upon by the representatives for both parties. This date was made peremptory upon the Applicant.

On September 1, 2010, I wrote to the Applicant, advising him of these facts and indicating that, on November 5, 2010, I would permit him an opportunity to explain his absence from the pre‑hearing on September 1, 2010 and to file documents in support of this explanation. I also advised him that I would then hear submissions from both sides as to whether, and upon what terms, the Applicant ought to pay the Insurer’s expenses related to preparing for and attending at the pre-hearing on September 1, 2010. Finally, I advised the Applicant that should he fail to attend and participate in the pre-hearing conference on November 5, 2010, this may lead to the dismissal of this application.

Shortly before November 5, 2010, Mr. Carranza advised the Commission that numerous attempts to contact the Applicant had been unsuccessful and that he would be bringing a motion to be removed from the record as the Applicant’s representative. He also provided written notice to the Applicant that he would be bringing such a motion.

On November 5, 2010, Ms. Robin Tambur (not Sarah Palubjak as erroneously indicated in my letter of November 5, 2010) appeared on behalf of the Insurer, together with Ryan Naimark, counsel for the Insurer. Mr. Carranza appeared before me to seek permission to be removed from the record. I granted Mr. Carranza’s motion and heard the Insurer’s request that I dismiss this application as being frivolous or vexatious. Pursuant to Rule 68 of the Dispute Resolution Practice Code, I wrote to the Applicant on November 5, 2010 to advise him as follows:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

It is my intention to grant the Insurer’s request to dismiss this application unless the Applicant can provide reasonable grounds for doing otherwise. In accordance with Rule 68.3, if Mr. O’Bryan wishes to dispute such a dismissal, I grant him twenty days from the date of this letter in which to serve upon Personal and file with me any written submissions he wishes me to consider, setting out the grounds upon which he objects to the dismissal of the proceeding or setting out any other issues or concerns.

After the twenty days have elapsed, I shall consider any written objections or submissions received from the Applicant...

To date, I have received no written submissions (or any other communication) from the Applicant. He has failed to attend three pre-hearing discussions without excuse and appears to have no interest in pursuing this matter any further. I therefore find that this application has become vexatious and, as such, it ought to be dismissed.

If either party wishes to make any submissions with respect to the issue of expenses, they may do so in accordance with Rules 75-79 of the Dispute Resolution Practice Code.

December 14, 2010

Richard Feldman

Arbitrator

Date