Sivakumar Thangarajah v. Dominion of Canada General Insurance Company, 2010 ONFSCDRS 32

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 32

FSCO A09-001426

BETWEEN:

SIVAKUMAR THANGARAJAH

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: January 15, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Albert Wong for Mr. Thangarajah

Katie Sharpe for Dominion of Canada General Insurance Company

Issues:

The Applicant, Sivakumar Thangarajah, claims to have been injured in a motor vehicle accident on January 9, 2007. He applied for statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ Dominion denied Mr. Thangarajah’s claims for certain medical and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Mr. Thangarajah 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 in this hearing is:

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

Result:

Mr. Thangarajah’s arbitration is dismissed

EVIDENCE AND ANALYSIS:

On June 5, 2009, Mr. Albert Wong, then student-at-law (now legal counsel) at Zayouna Law Firm, filed an Application for Arbitration with the Commission on behalf of Mr. Thangarajah.

On November 10, 2009, I conducted a pre-hearing conference in the matter. Mr. Thangarajah initially did not attend the pre-hearing conference, but appeared at the Commission following the conclusion of the formal meeting. The same day, I issued the following letter, setting out the circumstances of the pre-hearing conference.

A pre-hearing conference in this case was held on November 10, 2009, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario, in Toronto. Mr. Wong participated on behalf of Mr. Thangarajah. Ms. Sharpe participated on behalf of Dominion. Ms. Catherine Straub participated by telephone.

Mr. Thangarajah did not attend the pre-hearing conference. Mr. Wong advised that he had been unable to contact Mr. Thangarajah by phone or email. Ms. Sharpe sought the dismissal of the arbitration, with costs, due to Mr. Thangarajah’s non-attendance (as well as his failure to participate in various medical assessments in this case). Mr. Wong sought an adjournment of the pre-hearing to allow him further time to contact Mr. Thangarajah. Mr. Wong indicated that if Mr. Thangarajah failed to attend the rescheduled pre-hearing conference, he would consent to the dismissal of the arbitration (but without costs).

I was not prepared to dismiss the arbitration (noting, in part, that this was the first pre-hearing conference). I adjourned the pre-hearing conference to January 15, 2010, at 2:00 p.m., at the offices of the Financial Services Commission of Ontario, in Toronto. I noted that Mr. Wong had indicated that, should Mr. Thangarajah fail to attend the rescheduled pre-hearing, he would consent to the dismissal of the arbitration (without costs).

Following the pre-hearing conference, at approximately 10:45 a.m., and after Mr. Wong and Ms. Sharpe had left the building, I was advised that Mr. Thangarajah had arrived at the Commission. I spoke to him in Room 6, on the 14th floor. He advised that he had gone to the wrong building as a result of correspondence from Mr. Wong, dated October 31, 2009, which indicated that he was to go to “5140 Yonge Street” for the pre-hearing conference. I made a copy of this letter. I advised Mr. Thangarajah of the above discussions with Mr. Wong and Ms. Sharpe and that it was important for him to attend on January 15, 2010, at 2:00 p.m. at the Commission’s offices. He said that he was available then and would attend at that time. I indicated that I would confirm the morning’s events in a letter to him, and the others. Mr. Thangarajah also confirmed that his phone numbers are now as follows: […].

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.

The pre-hearing resumed on January 15, 2010. On January 18, 2010, I issued the following letter:

The pre-hearing conference in this case resumed on January 15, 2010, at 2:00 p.m., at the offices of the Financial Services Commission of Ontario in Toronto. Mr. Thangarajah did not attend. Mr. Wong represented Mr. Thangarajah. Ms. Catherine Straub participated on behalf of Dominion, represented by Ms. Sharpe.

Mr. Wong advised that he had spoken to Mr. Thangarajah the night before the pre-hearing resumption, and told him of the legal consequences of not attending the resumption, and that although Mr. Thangarajah was "less than thrilled" about needing to be at the resumption, he said he would be present. Mr. Wong advised that Mr. Thangarajah apparently wanted to postpone the resumption to obtain further documentation, but told him that this was not necessary at this stage of the proceeding. Mr. Wong advised that he told Mr. Thangarajah that he needed to be at the resumption and that Mr. Thangarajah agreed to this.

Ms. Sharpe reiterated her initial request, that this matter be dismissed with costs to the Insurer. Despite his earlier position (that if Mr. Thangarajah failed to attend the rescheduled pre-hearing, he would consent to the dismissal of the arbitration (without costs)), Mr. Wong now sought a further one week adjournment in order to allow him the opportunity to "drag" Mr. Thangarajah in here.

I declined to adjourn the matter further, based on my November 10, 2009 letter to Mr. Thangarajah and Mr. Wong's discussion with him the night before the resumption. I note as well that none of the correspondence to Mr. Thangarajah has been returned to the Commission. Mr. Wong advised that apparently Mr. Thangarajah has moved and that Canada Post is currently forwarding his mail to his new address, but that they will not disclose the details of his new address. I draw Mr. Thangarajah's attention to Rule 9.1(c) of the Dispute Resolution Practice Code, namely, that a party is required provide the Dispute Resolution Group with written notice of any change of their address, telephone number and electronic transmission address (if any), and the Dispute Resolution Group is entitled to rely on the last known address, telephone number and electronic transmission address (if any) contained in its records.

I advised the parties that even though Mr. Wong was probably bound by his initial position regarding the dismissal of this arbitration, I would likely need to be guided by Rule 68 of the Practice Code to dismiss this matter without a hearing. Ms. Sharpe suggested that I would have the authority to dismiss the matter with no further notice to Mr. Thangarajah pursuant to my general authority under the Statutory Powers Procedure Act (specifically section 25.0.1) to determine the procedures and practices in proceedings before me.

As set out in Rule 1 of the Practice Code, the rules are "made by the Director under the authority of section 21 of the Insurance Act and section 25.1 of the Statutory Powers Procedure Act." While there is a significant degree of flexibility in applying the Practice Code, I find that Rule 68 specifically applies to the case at hand and ought to applied given the significant consequences of dismissing a matter without a hearing. I reach this conclusion despite Mr. Wong's (initial) position that, if Mr. Thangarajah failed to appear at the resumption, the arbitration could be dismissed on consent.

Given my initial contact with, and letter to, Mr. Thangarajah, Mr. Wong's contact with Mr. Thangarajah, and Mr. Wong's initial position concerning the dismissal of this arbitration, I am prepared to now notify the parties that I intend to dismiss Mr. Thangarajah's arbitration without a hearing on the basis that the proceeding is frivolous, vexatious or is commenced in bad faith, pursuant to Rule 68.1 and Rule 68.2.

Pursuant to Rule 68.3, if Mr. Thangarajah objects to a dismissal of his arbitration under Rule 68.1 or wishes to make written submissions with respect to the dismissal, he shall provide the grounds on which he objects to the dismissal of the arbitration, or set out any other issues or concerns, in writing, serve the material on the other parties and file it within 20 days of the date of this letter. Pursuant to Rule 68.4, I will then consider any written objections or submissions received and make an order on such terms as are considered just.

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.

Mr. Thangarajah had until February 8, 2010 to provide any objection or written submissions. Mr. Thangarajah did not respond to the January 18, 2010 notice. None of the notices to Mr. Thangarajah in this proceeding have been returned to the Commission. Mr. Thangarajah has not notified the Commission of any change in address, as would be required under Rule 9.1(c) of the Dispute Resolution Practice Code. In these circumstances, I am satisfied that

Mr. Thangarajah has had proper notice of the proceedings and, in particular, Dominion’s motion to dismiss his arbitration.

In the circumstances, and for the reasons set out in the January 18, 2010 notice (in particular,

Mr. Thangarajah’s failure to appear at the pre-hearing resumption and his lack of response to the notice to dismiss), I find that Mr. Thangarajah has effectively abandoned his arbitration and that the proceeding is frivolous. Pursuant to Rule 68.1 of the Dispute Resolution Practice Code,

Mr. Thangarajah’s arbitration is dismissed.

EXPENSES:

At the January 15, 2010 pre-hearing resumption, I indicated that I would deal with the issue of expenses once the Rule 68 matter had been addressed. If required, the parties may now make submissions on expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

March 17, 2010

Eban Bayefsky

Arbitrator

Date