Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2010 ONFSCDRS 79
FSCO A06-001767
BETWEEN:
E.P.
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
REASONS FOR DECISION ON A PRELIMINARY ISSUE
Before: Jessica Kowalski
Heard: March 19, 2010 at the offices of the Financial Services Commission in Toronto
Appearances: No one appearing for Ms. P.
Laura Qaqish, solicitor for TTC Insurance Company Limited
Issues:
The Applicant, E.P., claims to have been injured in a motor vehicle accident on January 25, 2006. She applied for and was denied statutory accident benefits from TTC Insurance Company Limited (“TTC”), pursuant to the Schedule.1 The parties were unable to resolve their disputes through mediation. Ms. P. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
As a preliminary issue, TTC raised the following question:
- Was Ms. P. injured as a result of an “accident” as defined in subsection 2(1) of the Schedule?
Result:
- The application for arbitration is dismissed.
CHRONOLOGY
Ms. P. submitted an application for arbitration by letter dated August 15, 2006.
The parties participated in a pre-hearing discussion on March 7, 2007. TTC alleged that Ms. P. was not injured in an “accident” as defined in subsection 2(1) of the Schedule, and the pre‑ hearing Arbitrator ordered that this issue be heard separately from the main hearing. Ms. P. was represented by counsel at the time.
The preliminary issue hearing on whether there was an accident was scheduled to take place on April 23 and 24, 2007. In her pre-hearing letter, the Arbitrator noted that there was some urgency to hearing the preliminary issue as Ms. P. was in Canada on a work visa that was to expire in April 2007.
In the months that followed that first pre-hearing, the preliminary issue hearing was adjourned multiple times. The preliminary issue hearing was first adjourned on consent from April 23 and 24, 2007 to November 5 and 6, 2007, at the request of counsel for TTC because of a death in the family.
Next, at the request of Ms. P.’s counsel an adjournment was granted on consent from November 5 and 6, 2007 to May 5 and 6, 2008, on the grounds that Ms. P., now residing in Bahrain, had been denied re-entry to Canada and could therefore not participate in the hearing.
A further adjournment was granted on consent from May 5 and 6, 2008 to May 6 and 7, 2009, again because Ms. P. had been denied re-entry to Canada.
In the meantime, in April 2009 Ms. P.’s counsel brought a motion for an order to be removed as Ms. P.’s solicitors of record. The Case Administrator sent Ms. P. a copy of the Notice of Motion attached to an e-mail dated April 27, 2009.
On April 30, 2009, the letter the Commission sent to E.P by regular mail at her last known address in Toronto was returned marked “return to sender”. The Commission asked for Ms. P.’s counsel to provide a current mailing address for Ms. P.
Also on April 30, 2009, Ms. P. responded to the Commission’s April 27, 2009 e-mail. She wrote that someone stole her handbag when she was in the Philippines and that the handbag contained the Case Administrator’s contact information and contact information for all her friends in Canada. Ms. P. also wrote that she was working on returning to Canada. She did not comment on the Notice of Motion and made no mention that she had any difficulty with opening the e-mail attachment.
The preliminary issue hearing was again adjourned from May 6, 2009 to a date to be determined on May 29, 2009, after Ms. P.’s counsel’s motion to be removed as solicitors of record.
An Order dated June 18, 2009 removed Ms. P.’s counsel as her solicitors of record. The Order required Ms. P. to provide to the Commission her current telephone number and address, advise of her intention with respect to her representation at future proceedings and to provide the name and contact information of any representative she might have.
In the Order, the Arbitrator noted that the only means of communicating with Ms. P. at the time was by e-mail.
By e-mail dated September 2, 2009, Ms. P. responded to the Commission’s e-mail requesting a telephone number at which she could be contacted and attaching a notice of resumed pre‑hearing scheduled for September 18, 2009. The Arbitrator also ordered that the preliminary issue hearing be adjourned to January 6 and 7, 2010, and marked the adjournment peremptory to Ms. P. At the resumed pre-hearing, the parties agreed to a further resumption, at which time Ms. P. was to advise what steps she had taken to retain a representative.
At the resumed pre-hearing on October 15, 2009 Ms. P. submitted that she had not retained a new representative and that she wanted to represent herself. The Arbitrator’s letter confirms that Ms. P. was told that in representing herself she would be required to comply with the procedures set out in the Dispute Resolution Practice Code (the “Code”).
The hearing on January 6, 2010
Neither party attended the hearing on January 6, 2010. After the start of the hearing, I learned that Ms. Qaqish had contacted the pre-hearing Arbitrator directly to say that she would not be able to attend because of a viral illness. Unbeknownst to Ms. Qaqish, her assistant was also away from the office so she did not communicate that information to the Commission in a timely way or arrange for an associate of Ms. Qaqish to attend.
Because of the missed communication, I wrote a letter to both parties, e-mailed to Ms. P., stating:
Prior to disposing of this matter, I will accept submissions explaining your non‑attendance (and any consequences that should flow, including expenses) in writing, by no later than the close of business on Monday, January 11, 2010, after which I will make my determination based on the circumstances before me and in the manner I find appropriate.
Ms.