Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 114
FSCO A11-002097
BETWEEN:
YVONNE LAMISI TUMABIL
Applicant
and
PAFCO INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Jeffrey Rogers
Heard: July 8, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Mr. Alexei Antonov, student-at-law, for Mazin & Associates Ms Zeitoon Vaezzadeh, solicitor, for Pafco Insurance Company Ms. Tumabil did not attend
Issues:
The Applicant, Yvonne Lamisi Tumabil, alleged that she was injured in a motor vehicle accident on November 13, 2009. She applied for statutory accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.1 Pafco refused to pay any benefits on the grounds that Ms. Tumabil was not injured in an “accident” as defined in the Schedule.
The parties were unable to resolve their disputes through mediation, and Ms. Tumabil 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 was held on April 19, 2012. A hearing on the issue of whether Ms. Tumabil was injured in an “accident” was scheduled, commencing on February 19, 2013. That hearing was later rescheduled, to start on July 8, 2013.
Ms. Tumabil did not attend on July 8, 2013. Her solicitors sought an order removing their firm as her representative. Pafco sought an order dismissing the arbitration.
Therefore, the issues in this hearing are:
Should Mazin & Associates be removed from the record as Ms. Tumabil’s representative?
Should this arbitration be dismissed?
Result:
Mazin & Associates is removed from the record as Ms. Tumabil’s representative.
This arbitration is dismissed.
EVIDENCE AND ANALYSIS:
Removal from the Record
The motion for removal of Ms. Tumabil’s representative was originally scheduled to be heard by telephone conference call, on April 19, 2013. I adjourned the motion to be heard, in person, on July 8, 2013. I was concerned that proceeding by telephone conference call restricted Ms. Tumabil’s ability to participate.
Mazin & Associates filed a Motion Record containing the affidavit of Gary Mazin, which sets the unsuccessful efforts made to contact Ms. Tumabil and obtain instructions. I am satisfied that Ms. Tumabil was given proper notice of the motion. I am satisfied that there has been a breakdown in the solicitor/client relationship so that Mazin & Associates cannot continue to represent Ms. Tumabil. Mazin & Associates is therefore removed from the record as Ms. Tumabil’s representative.
Dismissal of Arbitration
Ms. Tumabil was given notice of the hearing and did not attend. She provided no information upon which it could be determined that the hearing should not proceed. Ms. Tumabil bears the onus of proving that she was injured in an “accident”. Without that proof, this arbitration cannot succeed. Since no evidence has been presented in support of Ms. Tumabil’s claim, this arbitration is dismissed.
EXPENSES:
Pafco chose not to pursue its claim for expenses of the arbitration.
August 26, 2013
Jeffrey Rogers
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 114
FSCO A11-002097
BETWEEN:
YVONNE LAMISI TUMABIL
Applicant
and
PAFCO 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:
Mazin & Associates is removed from the record as Ms. Tumabil’s representative.
This arbitration is dismissed.
August 26, 2013
Jeffrey Rogers
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.