Financial Services Commission of Ontario
Neutral Citation: 2013 ONFSCDRS 100 FSCO A11-003705
BETWEEN:
MARIA GIRARDI Applicant
and
INTACT INSURANCE COMPANY Insurer
DECISION ON A MOTION TO DISMISS MS. GIRARDI’S APPLICATION FOR ARBITRATION
Before: Susan Sapin Heard: By telephone conference call on April 26, 2013.
Appearances: No one appearing for Ms. Girardi Jordan Fletcher for Intact Insurance Company
Issues:
The Applicant, Maria Girardi, was injured in a motor vehicle accident on May 26, 2009. She applied for and received statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.1 Intact denied certain benefits and the parties were unable to resolve their disputes through mediation, and Ms. Girardi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Should Ms. Girardi’s application for arbitration be dismissed?
- Is Intact entitled to its costs of the arbitration proceeding?
Result:
- Ms. Girardi’s application for arbitration is dismissed.
- Intact is entitled to its costs of $2,000.
REASONS:
Intact sought dismissal of Ms. Girardi’s application for arbitration on the basis that she has consistently failed to cooperate in the adjusting of her file or to participate in the dispute resolution process, despite formal notice at each stage, such that the only conclusion that can be drawn from her non-participation at any stage of the proceedings, is that she has no intention of pursuing her claims.
Intact submits that even if her claims were not frivolous or vexatious to begin with, they have become so because of the cost to the insurer and time wasted of multiple rescheduled events which Ms. Girardi failed to attend.
The Commission’s record of proceedings, notices and correspondence bears this out. Ms. Girardi did not attend the initial in-person pre-hearing on October 3, 2012, and the pre-hearing resumption scheduled for February 1, 2013 was cancelled.
On February 12, 2013, Mr. J. Maludzinski requested a motion before me to be removed as Ms. Girardi’s legal representative. On March 6, 2013, he explained his reasons in a letter to the Commission:
- On January 17, 2013 Ms. Girardi did not attend a meeting at his office to prepare for an Examination Under Oath (EUO) requested by Intact for January 23, 2013, despite written notice dated September 17, 2012 and a telephone conversation with her on September 26, 2012, advising her of the date of the upcoming pre-hearing and the EUO;
- On January 23, 2013, Ms. Girardi did not attend the EUO;
- On February 5, 2013, Mr. Maludzinski wrote to Ms. Girardi confirming her failure to attend the pre-hearing and her EUO and confirming that his office had made numerous unsuccessful attempts to contact her by telephone or mail.
- Despite this correspondence to Ms. Girardi and Mr. Maludzinski’s advice to her that his firm could no longer represent her due to a breakdown in communication, Ms. Girardi did not contact his office.
Based on Mr. Maludzinski’s submissions, Ms. Girardi not participating despite written notice, I granted Mr. Maludzinski’s motion to be removed as Ms. Girardi’s legal representative on March 13, 2013.
At that time, Intact sought a motion to dismiss Ms. Girardi’s application for arbitration for the reasons cited above. The motion was scheduled for Friday, April 26, 2013, by teleconference, with notice sent to Ms. Girardi at her last known address. The day of the motion, I attempted to telephone Ms. Girardi at her last known telephone number but the number was not in service.
On the basis of the above facts and the affidavit of Jennifer Griffiths, a lawyer with the firm representing Intact, filed, I dismissed Ms. Girardi’s application for arbitration, as I find, from her failure to participate at any stage of the dispute resolution proceeding, that she has demonstrated no intention to pursue her claims against Intact in this forum, and has effectively abandoned them.
EXPENSES:
Intact claims its costs thrown away in these proceedings, which includes legal fees at the hourly legal aid rate of $94.27 for counsel to prepare for and attend the pre-hearings, the EUO and this motion. The legal aid rate is not generous but the legislature has not sought fit to adjust it. Also included are the services of a law clerk, at a lesser hourly rate. The fees add up to $5,180.98 including GST. I find this to be excessive under the circumstances.
An EUO is not part of an arbitration proceeding and insurers cannot claim legal fees for preparing for or conducting one. Given Ms. Girardi’s non-attendance at pre-hearings, a first in-depth file review by counsel would be reasonable but further review could be expected to be fairly brief. Attendances themselves, including at the motion, which was by teleconference, were also brief. Given that no actual hearing on the merits took place, and given that FSCO strives to provide a cost-effective and efficient process that remains accessible to claimants, I find that costs of $2,000, inclusive of GST, would be reasonable in this case.
August 7, 2013
Susan Sapin Arbitrator
Financial Services Commission of Ontario
Neutral Citation: 2013 ONFSCDRS 100 FSCO A11-003705
BETWEEN:
MARIA GIRARDI Applicant
and
INTACT INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. Girardi’s application for arbitration is dismissed.
- Intact is entitled to its costs, fixed at $2,000.00.
August 7, 2013
Susan Sapin Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.