Natasha White v. Primmum Insurance Co., 2012 ONFSCDRS 120

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

Neutral Citation: 2012 ONFSCDRS 120

FSCO A11-002078

BETWEEN:

NATASHA WHITE

Applicant

and

PRIMMUM INSURANCE CO.

Insurer

PRE-HEARING DECISION

Before: Alan Mervin

Heard: By telephone conference call on May 18, 2012

Appearances: No-one appearing for Ms. White Harry Brown for Primmum Insurance Co.

Background:

The Applicant, Natasha White, alleged that she was injured in a motor vehicle accident on July 29, 2009. She applied for statutory accident benefits from Primmum Insurance Co. (“Primmum”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and, on June 29, 2011, Ms. White applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) 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 March 12, 2012, at the offices of the FSCO. Ms. White failed to attend that meeting and her counsel, Mr. Voudouris, could provide no explanation for her absence. At that time, counsel for Primmum made it clear that they would be moving to dismiss the Application for Arbitration at the resumption of the pre‑hearing, should the Applicant not attend without explanation. The pre-hearing conference was adjourned to May 18, 2012 to be held in-person at the FSCO at 2:00 p.m. Ms. White was warned in the Notice of Resumption of Pre-hearing Discussion sent to her last known address, that if she failed to attend the resumed pre-hearing discussion, the Insurer may bring a motion to dismiss the Application for Arbitration.

On May 8, 2012, the Applicant’s counsel filed a motion, to be returnable at the resumption of the pre-hearing on May 18, 2012, to be removed from the record as the Applicant’s counsel, on the basis of a breakdown in the solicitor-client relationship.

On May 18, 2012, prior to the resumed pre-hearing, both counsel requested that it be held by teleconference, in anticipation of the Applicant not attending, as Mr. Voudouris had not been in contact with the Applicant since February 2011. I allowed counsel to attend by teleconference, with the proviso that should the Applicant attend at the FSCO, the resumed pre-hearing and the motion would be further adjourned to a mutually acceptable date in order to further deal with the matter.

On May 18, 2012, both counsel attended by teleconference. The Applicant again failed to attend. Before proceeding, I allowed an additional 30 minutes to ensure that the Applicant was not in attendance.

I then heard Mr. Voudouris’s motion to be removed from the record. Counsel for the Insurer did not oppose the motion.

Based upon the material filed and the submissions made by Mr. Voudouris, and for reasons given orally, I granted the motion. I ordered that Lofranco Corriero be removed as solicitors of record for the Applicant. That order is contained in my letter of May 23, 2012.

The Insurer then brought a motion to dismiss this Application for Arbitration without a hearing, on the grounds set forth in Rule 68 of the Dispute Resolution Practice Code.

Rule 68.1 of the Dispute Resolution Practice Code allows the arbitrator to dismiss a proceeding where the proceeding is frivolous, vexatious or is commenced in bad faith. Before dismissing a proceeding under this Rule, Rule 68.2 requires that the arbitrator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds stated in Rule 68.1.

At the conclusion of the resumed pre-hearing, I drafted my report, and sent a letter dated May 23, 2012, to all parties detailing what had taken place at the resumed pre-hearing. The report contained this warning:

This letter therefore serves as Notice to all parties that it is the intention of the writer at this time to dismiss these proceedings in accordance with the grounds set forth in Rule 68.1.

Should Ms. White object to a dismissal of this proceeding under Rule 68.1, or seeks to make written submissions with respect to the dismissal, Rule 68.2 states that she must provide, in writing, the grounds upon which she objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing, and serve the materials on the other parties, and file those materials within 20 days of the date on this letter.

Should I receive any written objections or submissions from either party, they will be considered and an order may be made on such terms as I consider just.

In the absence of any written submissions in response to this letter within 20 days of the date on this letter, this Application for Arbitration shall be dismissed without further notice.

To date, there has been no contact in any manner by the Applicant.

Result:

This Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

The Applicant has utterly failed to pursue this Application for Arbitration. She has failed to communicate with her own counsel and has failed to attend before the FSCO, without excuse, on two occasions. I am satisfied, based upon the available evidence, that the Applicant was duly served on each occasion with notice of the proceedings and made aware of 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.

I am satisfied that the requirements of Rule 68 have been met and though duly served and notified of the possible dismissal, the Applicant has not responded in any manner within the time period provided. The complete disregard of these proceedings shown by the Applicant since the filing of the Application for Arbitration, in the absence of any other explanation, leads me to a finding that this proceeding is frivolous, vexatious or was commenced in bad faith.

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 further find that it would constitute an abuse of our process to permit this matter to proceed. I am therefore granting the Insurer’s motion to dismiss this Application for Arbitration.

July 30, 2012

Alan Mervin Arbitrator

Date