Nuno Pereira v. TD General Insurance Company, 2013 ONFSCDRS 44

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

Neutral Citation: 2013 ONFSCDRS 44

FSCO A11-001919

BETWEEN:

NUNO PEREIRA

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator Fred Sampliner

Heard: January 25, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Pereira did not appear Deborah Starkman for TD General Insurance Company

Issues:

The Applicant, Nuno Pereira, claimed he was injured in a motor vehicle accident on February 10, 2010, and applied for statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.¹ Mr. Pereira and TD General did not resolve his claims for benefits through mediation, and he applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. TD General moved to dismiss Mr. Pereira’s claims.

The issues on this motion are:

Should Mr. Pereira’s claims for income replacement benefits, attendant care, medical benefits, housekeeping expenses, interest on overdue amounts, and a special award be dismissed?
Should either party be awarded their expenses of the arbitration?

Result:

Mr. Pereira’s claims are all dismissed.
TD General is entitled to $400 for its expenses of the arbitration.

EVIDENCE AND ANALYSIS:

TD General filed a motion to dismiss Mr. Pereira’s claims on December 7, 2012, with a copy sent to him. This Tribunal issued a formal notice of a hearing on TD General’s motion to dismiss Mr. Pereira’s claims, under Dispute Resolution Practice Code Rule 68, to his home address on September 14, 2012. The mail has not been returned to this Tribunal. Thus, I find that Mr. Pereira was properly served with a notice of the hearing on TD General’s motion to dismiss.

Previously to the motion filing, Mr. Pereira did not appear at the August 23, 2012 pre-hearing where his lawyers made submissions in support of their request to be removed as his counsel because he did not communicate with them. Since the removal of his lawyers under my September 6, 2012 order, Mr. Pereira has not communicated his interest in pursuing his claims by obtaining a new representative or filing any communications on his own.

Mr. Pereira did not appear, file opposing material or send a representative to act for him at the January 25, 2013 hearing of TD General’s motion to dismiss his claims. Mr. Pereira has not provided any evidence supporting his claims. I find that this arbitration is frivolous and should be dismissed on the basis that Mr. Pereira has not appeared at the pre-hearing or the hearing on this motion, and has not filed any material in support of his claims for statutory accident benefits in this legal proceeding.

EXPENSES:

TD General 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 Dispute Resolution Practice Code because it successfully defended against Mr. Pereira’s frivolous claims. I estimate the time for preparation of TD General’s Response, preparation for and attendance at the pre-hearing/motion, filing and attendance at the dismissal motion as four hours. I find TD General is entitled to $400, inclusive of HST, for its expenses of the arbitration.

April 5, 2013

Fred Sampliner Arbitrator

Date