Anthony-Terry Boutin-Bergeron v. Wawanesa Mutual Insurance Company, 2012 ONFSCDRS 101

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 101

FSCO A10-003427

BETWEEN:

ANTHONY-TERRY BOUTIN-BERGERON

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert Bujold

Heard: May 18, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. Boutin-Bergeron did not appear

Abby Tenenbaum for Wawanesa Mutual Insurance Company

The Applicant, Anthony-Terry Boutin-Bergeron, was involved in a motor vehicle accident on June 3, 2009. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”).¹ Wawanesa denied payment of certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Boutin-Bergeron applied for arbitration at the Financial Services Commission of Ontario (the “Commission”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

Is Mr. Boutin-Bergeron entitled to receive a weekly income replacement benefit in the amount of $400.00 per week from June 10, 2009 and ongoing?
Is Mr. Boutin-Bergeron entitled to receive a medical benefit for outstanding balances claimed owing to date for treatment and assistive devices provided by Assessment Direct and Rouge Valley?
Is Mr. Boutin-Bergeron entitled to attendant care benefits in the amount of $814.63 per month from June 3, 2009 and ongoing?
Is Mr. Boutin-Bergeron entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from June 3, 2009 and ongoing?
Is Wawanesa liable to pay Mr. Boutin-Bergeron’s expenses in respect of the arbitration?
Is Mr. Boutin-Bergeron liable to pay Wawanesa’s expenses in respect of the arbitration?
Is Mr. Boutin-Bergeron entitled to interest for the overdue payment of benefits?

Result:

Mr. Boutin-Bergeron’s claims are dismissed.
Wawanesa is entitled to its expenses of the arbitration fixed at $1,000.00 inclusive of fees, disbursements and H.S.T.

EVIDENCE AND ANALYSIS:

Background:

A pre-hearing discussion in this case was scheduled for July 26, 2011, at 10:00 a.m., at the offices of the Commission. Mr. Nicholas Harvey attended on behalf of Wawanesa. Ms. Tenenbaum, legal counsel, represented Wawanesa.

Neither Mr. Boutin-Bergeron nor anyone from the law firm representing him at the time, Mazin Rooz Mazin (“MRM”), had appeared by 10:15 a.m. A review of the Commission file uncovered a letter from MRM dated March 30, 2011 purporting to unilaterally withdraw the Application for Arbitration “without prejudice and without costs.” Unfortunately, the letter had not been brought to the attention of an arbitrator when it was received. Neither Wawanesa nor its counsel had been copied on the letter, and they were not aware of the purported withdrawal.

The process for seeking to withdraw all or part of a dispute is set out in Rule 70 of the Dispute Resolution Practice Code (4th Edition) (the “Code”) and requires, amongst other things, serving the request on all parties. As the process to seek to withdraw Mr. Boutin-Bergeron’s Application for Arbitration had not been followed, MRM was contacted by telephone, and Mr. Iftekhar Yakub, legal counsel with MRM, attended at the Commission. The pre-hearing discussion commenced around 10:40 a.m.

Upon attending at the pre-hearing, Mr. Yakub advised that his firm had sought to withdraw the Application for Arbitration because it had been unable to obtain instructions from Mr. Boutin-Bergeron. He also advised that his firm had faxed a letter to Mr. Harvey on April 4, 2011 that it no longer represented Mr. Boutin-Bergeron in this matter. This letter was neither copied to the Commission nor Wawanesa’s counsel. Mr. Harvey denied receiving the letter and it was confirmed that the number to which the letter was sent was not the fax number for Wawanesa.

Mr. Yakub was advised that MRM remained counsel of record for Mr. Boutin-Bergeron. I recommended that MRM try again to contact Mr. Boutin-Bergeron and, in the event that MRM received instructions to seek to withdraw the Application for Arbitration, MRM was advised to follow the procedure set out in Rule 70. Wawanesa could then respond to the request as it considered appropriate. I would then consider the request, including whether permission to withdraw the Application of Arbitration should be subject to any terms or conditions. If MRM could not obtain instructions from Mr. Boutin-Bergeron, MRM could seek, on notice, to withdraw as his representative. The parties agreed to proceed in this manner.

MRM subsequently brought a motion for an order permitting it to withdraw as Mr. Boutin-Bergeron’s representative. The motion was heard, in person, at 10:00 a.m. on March 9, 2012 at the offices of the Commission. A resumption of the pre-hearing was also scheduled for the same date and time. Mr. Marko Djukic attended on behalf of MRM to speak to his firm’s motion. Ms. Tenenbaum attended on behalf of Wawanesa for the resumption of pre-hearing discussion.

By 10:20 a.m., Mr. Boutin-Bergeron had still not appeared at the Commission offices.

Rule 37.7 of the Code provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party's absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Pursuant to Rule 37.7, and being satisfied that Mr. Boutin-Bergeron had been properly served at his last known address with MRM’s notice of motion, MRM’s motion was heard in his absence. I found on the basis of affidavit materials filed that there had been a breakdown in the solicitor-client relationship, and I granted MRM’s request to withdraw as Mr. Boutin-Bergeron’s representative.

Also being satisfied that a Notice of Resumption of Pre-Hearing Discussion had been delivered to Mr. Boutin-Bergeron’s last known address, the resumed pre-hearing also proceeded in his absence, at which time I scheduled an arbitration hearing for Friday, May 18, 2012 at 10:00 a.m., in person, at the offices of the Commission. The issues for the hearing were identified as the issues set out in the Application for Arbitration and the Response by Insurer to an Application for Arbitration. However, my letter to the parties of March 9, 2012 advised as follows:

Wawanesa has been advised not to prepare for a contested hearing on May 18, 2012. In the event that Mr. Boutin-Bergeron attends on that date, the hearing will not proceed and the appointment will be converted into a pre-hearing discussion. However, in the event that Mr. Boutin-Bergeron does not attend, then, as noted above, the hearing may proceed in his absence. Mr. Boutin-Bergeron’s application for arbitration may be dismissed and Wawanesa’s expenses of the arbitration proceeding may be awarded against him.

A Notice of Hearing dated March 15, 2012 was sent to Mr. Boutin-Bergeron at his last known address confirming the appointment for the arbitration hearing as Friday, May 18, 2012 at 10:00 a.m., in person, at the offices of the Commission.

The Arbitration Hearing:

On May 18, 2012 at 10:00 a.m., Ms. Sophie Eng attended at the Commission on behalf of Wawanesa. Ms. Tenenbaum also attended and represented Wawanesa.

By 10:20 a.m., Mr. Boutin-Bergeron had still not appeared at the offices of the Commission.

Pursuant to Rule 37.7 of the Code, and being satisfied that Mr. Boutin-Bergeron had been properly served at his last known address with the Notice of Hearing, the arbitration hearing proceeded in his absence.

As Mr. Boutin-Bergeron did not attend to present any evidence, he failed to establish his entitlement to the benefits claimed. Mr. Boutin-Bergeron’s claims were therefore dismissed.

EXPENSES:

On hearing the submissions of counsel for Wawanesa, and given that Wawanesa was required to attend at the offices of the Commission on three occasions, I find that Wawanesa is entitled to its expenses of the arbitration which I fix at $1,000.00 inclusive of fees, disbursements and H.S.T.

June 27, 2012

Robert Bujold

Arbitrator

Date