Luis Almeida v. Lombard General Insurance Company of Canada, 2011 ONFSCDRS 51

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 51

FSCO A09-001840

BETWEEN:

LUIS ALMEIDA

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

PRELIMINARY ISSUE HEARING

Before: Arbitrator Denise Ashby

Heard: April 28, 2011

Appearances: No one appearing for Mr. Almeida,

Marlett Dobson for Lombard General Insurance Company of Canada

Issues:

The Applicant, Luis Almeida, was involved in a motor vehicle accident on September 15, 2007. He applied for and received certain statutory accident benefits from Lombard General Insurance Company of Canada (“Lombard”), payable under the Schedule.¹ However, he was denied certain benefits, other benefits were stopped and the quantum of those benefits was in issue. The parties were unable to resolve their disputes through mediation, and Mr. Almeida applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issue:

Should Mr. Almeida’s claim for benefits be dismissed without a hearing pursuant to Rule 68 or in the alternative be deemed withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code?

Result:

Mr. Almeida’s Arbitration proceeding is deemed withdrawn.

Chronology:

On July 21, 2009, Mr. Almeida submitted his Application for Arbitration to the Commission.

On February 16, 2010, a Pre-hearing discussion was held. Dates were set for a motion for interim benefits.

On March 23, 2010, the Commission was advised that Mr. Almeida’s income replacement benefit had been reinstated.

On March 24, 2010, the motion for interim benefits was dismissed with expenses payable by Lombard.

On October 15, 2010, the hearing scheduled to commence on October 18, 2010 was adjourned to March 28, March 29, March 30 and March 31, 2011. The adjournment was made peremptory to Mr. Almeida.

On March 28, 2011, the hearing was convened before me at which time I heard submissions from Mr. Almeida’s former counsel that he be removed as Mr. Almeida’s Representative of Record. As well, Lombard brought a motion to have Mr. Almeida’s claim for benefits dismissed without a hearing.

On April 1, 2011, I issued a decision providing reasons for removing Mr. Almeida’s former counsel as Representative of Record. I adjourned the motion to dismiss to give Lombard an opportunity to give Mr. Almeida notice by serving him by courier and regular mail at his last known address.

On April 28, 2011, the Motion to Dismiss was convened before me at 10:00 a.m. Neither Mr. Almeida nor his representative was in attendance. I recessed the hearing for thirty minutes following which I heard Lombard’s submissions in the absence of Mr. Almeida.

EVIDENCE AND ANALYSIS:

Lombard filed its Statement of Service in Form F setting out the manner in which it served Mr. Almeida and his former counsel with the Motion Record. The Motion Record contained a Notice of Motion specifying the time and place of the motion and the basis upon which Lombard was seeking to have Mr. Almeida’s claim dismissed or deemed withdrawn.

The affidavit of Jennifer Chester, an Accident Claims Representative employed by Lombard, formed part of the Motion Record. She provided a detailed chronology of the proceedings relating to Mr. Almeida’s claim for accident benefits, including the removal of his former counsel. At Tab L, appended to her Affidavit, Ms. Chester provided a copy of my decision and order dated April 1, 2011.

I am satisfied that Mr. Almeida was fully informed of each of the proceedings. As well, he was aware of the reasons for the adjournment of the hearing peremptory to him and the removal of his then counsel as Representative of Record. Further, he was provided notice of the Motion in a manner consistent with my Order of April 1, 2011.

Rule 68.1 of the Dispute Resolution Practice Code (DRPC) provides:

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.

Rule 68.2 requires the adjudicator to deliver written notice to all parties of the intention to dismiss pursuant to Rule 68.1. Rule 68.3 makes provision for a party to object to the dismissal.

Rule 70.1 provides:

A party may seek permission to withdraw all or part of a dispute by:

(a) Serving a request to withdraw on all parties; and

(b) Filing the request to withdraw together with a Statement of Service in FORM F; or

(c) Making an oral request to withdraw all or part of a dispute during a neutral evaluation, pre-hearing discussion, settlement discussion, preliminary conference or at a hearing.

In Fedoseev and RBC General Insurance Company, I considered the definitions of frivolous, vexatious and bad faith found in Black's Law Dictionary, 6th Edition, and concluded:

The foregoing definitions suggest that a litigant must wilfully bring an unmeritorious claim, conduct the action deceptively, maliciously or fail to fulfill a duty or obligation in a manner inconsistent with honest mistake.²

Mr. Almeida claims an income replacement benefit, an attendant care benefit, a special award, interest on outstanding benefits and his expenses. Lombard reinstated his income replacement benefit pending a determination of his entitlement at the hearing. Lombard continues to pay the income replacement benefit. Therefore I must conclude that there was some merit to his claim.

There is insufficient evidence for me to conclude that Mr. Almeida was either deceptive or malicious in his conduct of the arbitration proceeding.

The history of the proceedings set out in the Motion Record establishes that Mr. Almeida has failed to participate since March 24, 2010. Since October 2010, he has failed in his duty to keep his former counsel, Lombard and the Commission advised of his current address. Mr. Almeida has failed to advise his former counsel of his intentions with respect to the arbitration. This conduct, in the face of Lombard’s continuing to pay Mr. Almeida an income replacement benefit, may reasonably be construed as a wilful avoidance of an arbitral decision terminating the benefit. Such conduct constitutes bad faith. However, Mr. Almeida’s failure to fulfill his obligations, while inconsistent with honest mistake, cannot be said to have occurred at the commencement of the arbitration as required by the provisions of Rule 68.

On the basis of the foregoing, I decline to dismiss Mr. Almeida’s claim for benefits without a hearing.

Rule 70.3 provides an adjudicator the authority to permit a withdrawal even in the face of a party’s objection on such terms and conditions as he or she considers just. Failure to participate has been construed as withdrawal from the arbitration process resulting in a closure of the Commission’s file.³

As Mr. Almeida has not participated in any of the proceedings since March 24, 2010 and has failed to communicate with either his former counsel or the Commission, I infer that he has abandoned his claim and has withdrawn from the process. Therefore, Mr. Almeida is deemed to have withdrawn his claim for benefits pursuant to Rule 70 of the DRPC.

EXPENSES:

Lombard withdrew its claim for expenses at the hearing. Therefore, each party will bear its own expenses.

June 16, 2011

Denise Ashby Arbitrator

Date