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

Neutral Citation: 2013 ONFSCDRS 127

FSCO A11-004093

BETWEEN:

CLARKE IBRAHIM

Applicant

and

CHIEFTAIN INSURANCE COMPANY

Insurer

Before: Alan Mervin, Arbitrator

Heard: December 5, 2012 and February 22, 2013, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario

Appearances: No one appearing for Mr. Ibrahim Michael Nicolis for Chieftain Insurance Company

Issues:

The Applicant, Clarke Ibrahim, was injured in a motor vehicle accident on April 27, 2010. He applied for and received statutory accident benefits from Chieftain Insurance Company (“Chieftain”), payable under the Schedule.¹ Chieftain subsequently terminated benefits. The parties were unable to resolve their disputes through mediation, and Mr. Ibrahim applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case, which commenced on December 5, 2012, at the offices of FSCO, the Applicant did not appear. Mr. Nicolis, counsel for Chieftain, appeared. Mr. Honner, representing Mazin Rooz Mazin, had filed a motion to withdraw from the record as the Applicant’s representative on the basis of a breakdown in the solicitor client relationship. Mr. Nicolis did not oppose the motion.

After hearing submissions from Mr. Honner, and reviewing the motion materials filed , Mazin Rooz Mazin was permitted to withdraw as representative of Mr. Ibrahim. The pre-hearing was adjourned, to be resumed on February 22, 2013. Following the non-attendance of the Applicant at the initial pre-hearing, Chieftain moved to have the application for arbitration of Mr. Ibrahim dismissed. As a result, a resumption of pre-hearing was set to allow for notice to the Applicant to appear, as his application for arbitration was in jeopardy of being dismissed.

The issues therefore are:

Should Mr. Ibrahim's arbitration be dismissed without a hearing on the grounds that it is frivolous, vexatious or has been commenced in bad faith, pursuant to Rules 68.1 and 68.2 of the Dispute Resolution Practice Code (Fourth Edition — Updated October 2003) (the “Code”)?

Result:

Mr. Ibrahim’s claims are all dismissed.

EVIDENCE AND ANALYSIS:

The Law:

Before an arbitrator can dismiss an application for arbitration without a hearing, one must look at Rules 68.1 and 68.2 of the Code, which provide:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

A pre-arbitration discussion was held on December 5, 2012. Mr. Ibrahim did not attend. Mr. Ibrahim’s counsel at that time, Mr. Alan Honner, had served and filed a motion and supporting materials, requesting that his firm be permitted to withdraw as Mr. Ibrahim’s representative.

At the pre-hearing, in the absence of Mr. Ibrahim, the motion was heard, unopposed by Chieftain. After reading the materials, filed, and hearing submissions from both parties, I allowed the motion, on the basis of a breakdown in the solicitor-client relationship.

Following my oral decision on the motion, Mr. Nicols, counsel for Chieftain, made a motion to dismiss Mr. Ibrahim’s claims at the pre-hearing, submitting that the claim was frivolous, and relied on the history of non-communication shown by Mr. Ibrahim attested to in the affidavit of Mr. Ibrahim’s former counsel, as well as the oral submissions made at the pre-hearing, at which time further attempts to reach Mr. Ibrahim or communicate with him in some way were fruitless. Mr. Ibrahim had not been heard from, nor had he been able to be reached for some time; efforts to reach him at his last known address and phone number were unsuccessful.

Counsel submitted that the arbitration ought to be dismissed at that point, as Mr. Ibrahim had not given any indication that he would attend, or had any interest in the proceedings, and Chieftain ought not to be put to any further expense defending a claim which, in their submission, was frivolous.

I was not prepared to grant the motion at that time. Instead, I adjourned the pre-hearing to February 22, 2013, on notice to Mr. Ibrahim. I indicated that upon resumption I would hear further submissions to determine whether Mr.Ibrahim’s application for arbitration should be dismissed.

Subsequent to the resumption of pre-hearing, a formal notice of a resumption of pre- hearing was sent to Mr. Ibrahim, to his last known address, on December 12, 2012.

That notice, on my instruction, contained the following bolded warning:

Please Note: Above pre-hearing date is peremptory, and the application for arbitration may be dismissed if the applicant, Mr. Clarke Ibrahim, does not attend the pre-hearing on the above date.

The pre-hearing in this case resumed as scheduled on February 22, 2013 at 10:00 a.m. Mr. Ibrahim did not attend, nor did a representative appear on his behalf. Mr. Nicolis attended on behalf of Chieftain. The pre-hearing was adjourned until 10:30 a.m. in order to ensure that Mr. Ibrahim was not delayed.

At 10:30 a.m., the pre-hearing resumed. There was no indication in the file that Mr. Ibrahim made any effort to inform the Commission that he would not appear. In addition, the file reveals that Mr. Ibrahim has not at any time advised the Commission of any change in his address. Further, Chieftain advised that they had not heard from Mr. Ibrahim in the interim.

There is no indication that the mail has been returned to the Commission. Thus, I find that Mr. Ibrahim was properly served with a notice of the resumption of the pre-hearing, and that sufficient notice, as required under rule 68 was provided to Mr. Ibrahim.

The fact that an applicant does not appear at a scheduled proceeding does not mean that an arbitrator can dismiss the arbitration solely on the applicant’s failure to attend the hearing. The burden of proof rests with Chieftain to show, on a balance of probabilities that Mr. Ibrahim’s claim should be dismissed.

For the following reasons I find that Chieftain has fulfilled its burden:

In reviewing the motion materials filed by Mazin Rooz Mazin in support of the motion to be removed from the record, an affidavit by Inna Ryzhkov, an assistant at that law firm, revealed that, despite several letters and notices, there had been absolutely no response from the Applicant, since at least, October 3, 2011, and that the Applicant has been non co-operative with his representatives since at least that time.

Having heard the motion for removal prior to this resumption, it is clear that there has been a failure on the part of Mr. Ibrahim to fulfill any of his obligations in support of his claim. These failed obligations include:

not responding to relevant production requests;
not communicating or providing any instructions to his counsel on how to proceed in his arbitration claim; and
not attending at the pre-hearing and resumption despite notice from both the Commission, and in the first instance, his representative.

In addition, Chieftain submits that Mr. Ibrahim has been provided with ample opportunity to advise either the Commission or Chieftain’s counsel of his intention to proceed with his arbitration, but has failed to do so.

In addition, Chieftain also submitted that the application for arbitration was not signed by the Applicant, and submitted that in the absence of any communication from the Applicant, the Applicant may not even be aware that this application is being brought.

The submission is that the silence of the Applicant demonstrates his complete disinterest in the proceeding.

Chieftain also submitted that a Form 1, purportedly prepared by Dr. Elana Silverman and submitted in support of the Applicant’s claim for $918.00 monthly attendant care payments, does not make sense as Chieftain submitted that Mr. Ibrahim self-reported to Dr. Silverman that, “he will be receiving no physical assistance”.

Further, upon examining the last page attached to the Form 1, signed by Dr. Elana Silverman, D.C., under the heading “ Conclusions and Recommendations” , the first paragraph begins with: “Eliya Yousif (emphasis added) is a 24 year old male:” and recommends that “Eliya Yousif requires aid in the amount of $918.38 monthly, and that: Eliya Yousif requires assistive devices to aid in obtaining his independence…” . This Form 1 clearly refers to someone other than the Applicant.

Chieftain also submitted that Mr. Ibrahim has never submitted an OCF 6, and that, as the claim is basically one of attendant care and housekeeping benefits, this suggests that either those expenses have not been incurred, or the Applicant is not in need of assistance.

Chieftain further submits that despite clear notice of the February 22, 2013 resumption of pre- hearing to dismiss his arbitration, Mr. Ibrahim did not appear.

Accordingly, Chieftain submits that the appropriate inference for Mr. Ibrahim’s total lack of participation in the arbitration process, taken together with the irregularities as stated above, is that this application for arbitration is frivolous and/or vexatious.

FINDINGS

I find that Mr. Ibrahim had clear notice that the dismissal of his application for arbitration was to be considered on February 22, 2013. I find that, despite ample notice of the pre-hearing and a warning that consideration would be given to dismiss his arbitration, Mr. Ibrahim chose not to appear.

In view of the above, and considering the unnecessary ongoing expense that the Insurer has already been put to because of the Applicant’s lack of participation, and will continue should this claim proceed, I agree with Chieftain’s submissions that, on a balance of probabilities, Mr. Ibrahim’s application for arbitration is frivolous and vexatious, and that I should draw an inference in that regard. I find that Mr. Ibrahim failed in his obligations to support his arbitration claim. Further, I accept the submissions of Chieftain, that it is possible that the Applicant may not have been aware that a claim was filed on his behalf; he did not sign the application for arbitration, has not provided instructions or communicated with his former counsel or retained new representation, has not attended any of the proceedings, has not communicated in any way with the Commission, and a Form 1 filed in support of his claim was clearly for some other person than the Applicant.

Accordingly, I find that Mr. Ibrahim’s application for arbitration is dismissed.

EXPENSES:

Chieftain is entitled to its expenses of the arbitration under subsection 282(11) of the Insurance Act and Rule 75.2(a) and (e) of the Code because it successfully defended against Mr. Ibrahim’s frivolous claims. I estimate the time for preparation of Chieftain’s, preparation for and attendance at the pre-hearing/motion, filing and attendance at the resumption for the dismissal motion as five hours. I find Chieftain is entitled to $500.00, inclusive of HST, for its expenses.

October 3, 2013

Alan Mervin Arbitrator

Date