Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 70
FSCO A11-000085
BETWEEN:
KATHERINE FALLA
Applicant
and
TD GENERAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Susan Sapin
Heard: January 22, 2013 at the offices of the Financial Services Commission of Ontario in Toronto Written submissions were received from TD General Insurance Company on January 2, 2013 No submissions were received from Mrs. Falla
Appearances: No one appeared for Mrs. Falla Daniel Siu for TD General Insurance Company
Issues:
On December 28, 2012 TD General Insurance Company (“TD General”) applied pursuant to Rule 68 of the Dispute Resolution Practice Code1 (“The Code”) for an Order dismissing Mrs. Falla’s application for arbitration on the grounds that she has abandoned it or on the grounds that her application is frivolous, vexatious or was commenced in bad faith.
Result:
Mrs. Falla’s application for arbitration is dismissed on the grounds that she has abandoned it.
TD General is entitled to its costs of the motion, fixed at $750.
Mrs. Falla did not attend the motion hearing and I was unable to reach her by telephone. She did not contact the Commission or TD General before the hearing to advise whether she would or would not be attending, nor did she comply with Arbitrator Renahan’s order that she provide written submissions relating to the motion to dismiss by January 18, 2013.
I reviewed the evidence, considered the submissions provided by TD General beforehand as well as orally at the motion hearing, and dismissed Mrs. Falla’s application for arbitration, with written reasons to follow, on the basis that she has consistently failed to take any steps to pursue her claims, and her application is therefore deemed to be abandoned.
Reasons:
Background:
The Applicant, Katherine Falla, was injured in a motor vehicle accident on December 12, 2008. She applied for and received caregiver, attendant care, housekeeping, and medical and assessment benefits from TD General Insurance Company (“TD General”), payable under the Schedule.2 TD General terminated benefits on the basis of multidisciplinary insurer examinations. The parties were unable to resolve their disputes through mediation, and Mrs. Falla applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended on January 13, 2011.
Facts leading up to TD General’s motion to dismiss the hearing:
Correspondence on record indicates Mrs. Falla was unable to attend the first pre-hearing scheduled in this matter on July 4, 2011 due to surgery, and the pre-hearing was rescheduled to February 21, 2012 at her request. Just before the rescheduled pre-hearing, Mrs. Falla obtained a new lawyer from Pace Law Firm.
Mrs. Falla attended the pre-hearing with her new lawyer and undertook to produce certain documents to TD General required for the hearing of the dispute. The arbitration hearing was scheduled for January 21 – 24, 2013 at the offices of the Financial Services Commission in Toronto. The parties were sent notice of the proceeding. Notice to Mrs. Falla was sent to the address she provided to the Commission.
On December 13, 2012, Mrs. Falla’s counsel, Anu Malhotra, wrote to the pre-hearing arbitrator to advise that she wished to withdraw from the arbitration proceeding as there had been a breakdown in the solicitor-client relationship. This letter was copied to Mrs. Falla at the address she provided to the Commission, and the Commission sent notice to Mrs. Falla at the same address, that the pre-hearing would be resumed on Friday, December 28, 2012 via teleconference to deal with Ms. Malhotra’s request for permission to withdraw from the proceeding.
On December 17, 2012, Pace Law Firm wrote to Mr. Siu advising that they had been “given specific instructions from Mrs. Falla to take no further steps on her behalf.”3
On December 28, 2012, Arbitrator Renahan convened the teleconference with Ms. Malhotra and Daniel Siu, counsel for TD General. Arbitrator Renahan telephoned Mrs. Falla at the telephone number she had provided to the Commission, but the person who answered the phone refused to provide any information. Based on the submissions of Mrs. Falla’s counsel at the pre-hearing resumption, Arbitrator Renahan permitted counsel to withdraw as Mrs. Falla’s representative.
At that time, Arbitrator Renahan also granted Mr. Siu’s request for a motion under Rule 68 of the Code for an Order dismissing Mrs. Falla’s application for arbitration on the grounds that she had either abandoned it or that it was frivolous, vexatious or commenced in bad faith. Arbitrator Renahan set up a timetable for written submissions from each party and scheduled the motion to be heard on Tuesday, January 22, 2013 at 10:00 a.m. at the offices of the Financial Services Commission.
The Commission sent Mrs. Falla a formal Notice of Motion, again to the address she provided. The Notice reads as follows:
A motion will be held on Tuesday, January 22, 2013 at 10:00 a.m., at the offices of the Financial Services Commission of Ontario, 5160 Yonge Street, 14th Floor, Toronto, Ontario.
You may attend this motion in person and/or be represented. If you or your representative do not attend at the motion, the arbitrator may dispose of the motion in your absence and you will not be entitled to any further notice.
The Insurer applies pursuant to Rule 68 of the Dispute Resolution Practice Code for an Order dismissing Mrs. Falla’s application for arbitration on the grounds that she has abandoned the application or on the grounds that her application is frivolous, vexatious or was commenced in bad faith.
The Insurer shall have until January 7, 2013 to serve and file with the Commission any written material in support of its motion. Mrs. Falla shall have until January 18, 2013 to serve on the Insurer and file with the Commission with proof of service, any written submissions she has with respect to the Insurer’s motion.
The parties have an ongoing responsibility to ensure the prompt and complete exchange of documents that are reasonably necessary to determine the issue being arbitrated, including updates to the information previously exchanged and any additional document obtained.
DATED AT THE CITY OF TORONTO, THIS 28TH DAY OF DECEMBER, 2012
As noted above, Mrs. Falla did not appear at the hearing and there is no indication that she made any effort to inform the Commission whether she did or did not intend to appear.
Mrs. Falla has failed to produce documents relevant to her claims for benefits despite repeated requests. She failed to attend a FSCO mediation on December 6, 2012 despite TD General’s request that she participate. TD General was invited to participate in a global mediation of Mrs. Falla’s tort and accident benefits files on three separate occasions. However these were adjourned at the applicant’s request on little or no notice, and no meaningful attempts at resolution could take place, despite TD General having prepared for the meetings.
I find Mrs. Falla has failed, without any reasonable excuse, to pursue her claims. She has failed to produce documents, to instruct her representatives, to make herself available or to advise either the Insurer or the Commission of her intentions or availability on numerous occasions and despite many opportunities. I find she has received ample notice of the consequences of her failure to participate in the dispute resolution process.
EXPENSES:
TD General submitted a Bill of Costs for 20 hours of legal work by Paul Barnes at $85.51 per hour and 22 hours by Daniel Siu at the same rate, for a total of $3,591.42 in legal fees and $346.55 in photocopying fees. This includes the cost of preparing for and or attending private mediatons, pre-hearings and this motion.
As the motion was uncomplicated, short (one hour including a half hour grace period in case Mrs. Falla was delayed), and uncontested, I find costs of $750 inclusive of legal fees, disbursements and HST to be appropriate in this case.
POST-HEARING SUBMISSIONS:
On April 24, 2013, the Commission received a letter dated April 4, 2013 from Mrs. Falla which begins, “I didn’t mean to miss any appointments about my MVA benefits,” and does not appear to have any purpose but to mention that she needs therapy and is in financial need. Under Rule 43 of the Code, an arbitrator may reopen a hearing at any time before he or she makes a final order disposing of the arbitration. I have considered Mrs. Falla’s letter and find there is no new information or evidence in it that would justify a reopening of the hearing or that would persuade me that her application for arbitration should not be dismissed.
Under Rules 50 – 52 of the Code, a party to an arbitration who wishes to appeal an order of an arbitrator to the Director of Arbitrations, on a question of law only, must complete, serve and file a Notice of Appeal in FORM I, together with a $250 application filing fee within 30 days of the date of the arbitration order. FORM I can be printed from the FSCO website, or a copy can be obtained by contacting the Case Administrator for this file, Elina Tarassov, at (416) 590-7588.
Alternatively, under Rule 61, either party may apply to the Director to vary or revoke an arbitration order if there has been a material change in the circumstances of the insured; evidence not available on the arbitration has become available; or there is an error in the order.
June 4, 2013
Susan Sapin Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 70
FSCO A11-000085
BETWEEN:
KATHERINE FALLA
Applicant
and
TD GENERAL 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:
Mrs. Falla’s application for arbitration is dismissed.
Mrs. Falla shall pay to TD General Insurance Company its costs of $750.00.
June 4, 2013
Susan Sapin Arbitrator
Date
Footnotes
- The Dispute Resolution Practice Code is available on the FSCO website at: www. fsco.gov.on.ca.
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Affidavit of Benjamin Lee, lawyer with Sigurdson, Courtlander, Burns and Silverstone, law firm representing TD General Insurance Company.