Christopher Boatswain v. Intact Insurance Company, 2011 ONFSCDRS 65

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 65

FSCO A11-000178

BETWEEN:

CHRISTOPHER BOATSWAIN

Applicant

and

INTACT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

ON A MOTION

Before: Arbitrator Feldman

Heard: July 15, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared on behalf of the Applicant

Donald G. Cormack, counsel for Intact Insurance Company

Background:

The Applicant, Christopher Boatswain, alleged that he was injured in a motor vehicle accident on October 15, 2009. He applied for statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ Disputes arose concerning the Applicant’s claims. The parties were unable to resolve their disputes through mediation and, in January 2011, Mr. Boatswain applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion in this case was originally scheduled to be held on April 21, 2011 at the offices of the Financial Services Commission of Ontario. Mr. Boatswain failed to attend that meeting and his then counsel, Mr. Yakub, could provide no explanation for his absence. The pre-hearing conference was adjourned to July 15, 2011 and Mr. Boatswain was warned (in my letter of April 21, 2011) that if he failed to attend the resumed pre-hearing discussion that this application might be dismissed.

As a result of a breakdown in the solicitor-client relationship between the Applicant and his counsel, Mr. Yakub brought a motion to be removed from the record as the Applicant’s counsel. This motion was made returnable on July 15, 2011.

On July 15, 2011, Mr. Yakub was in attendance, as was Mr. Cormack and Ms. Srima Samuel on behalf of the Insurer. The Applicant again failed to attend. Mr. Yakub confirmed that the Applicant was aware that this application might be dismissed if he failed to attend the resumed pre-hearing discussion.

I heard Mr. Yakub’s motion. Based upon the material filed and the submissions made by Mr. Yakub and for reasons given orally, I granted the motion to remove Mazin Rooz Mazin as solicitors of record for the Applicant. I then permitted Mr. Yakub to leave.

The Insurer then brought a motion to dismiss this application as having been abandoned by the Applicant and constituting an abuse of process. The Insurer also sought its expenses of this application, fixed in an amount in the range of $500 to $1,000.

The issues in this hearing are:

Whether to dismiss this application as an abuse of process.
Whether to grant to the Insurer its expenses of this proceeding.

Result:

This application is dismissed.
The Insurer is entitled to its expenses of this proceeding, fixed in the amount of $750.00.

EVIDENCE AND ANALYSIS:

The Applicant has utterly failed to pursue this application. He has failed to communicate with his own counsel and has failed to attend before the Financial Services Commission, without excuse, on two occasions. I am satisfied, based upon the available evidence, that the Applicant was aware of these proceedings and the possible consequences of failing to attend. In the circumstances, I am not prepared to put the Insurer to any additional expense or to allow this matter to proceed further.

Subsection 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

I find that it would constitute an abuse of our processes to permit this matter to proceed. I am therefore granting the Insurer’s motion to dismiss this application and I am fixing its expenses in the amount of $750.00.

August 8, 2011

Richard Feldman Date

Senior Arbitrator