Shoyan Marlin v. Aviva Canada Inc., 2013 ONFSCDRS 83

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 83

FSCO A12-000402

BETWEEN:

SHOYAN MARLIN

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Robert Bujold

Heard: May 31, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jean-Sébastien Lessard for Tzaferis & Furtado LLP

Kevin Griffiths for Aviva Canada Inc.

Ms. Marlin did not appear

Issues:

The Applicant, Shoyan Marlin, alleged that she was injured in a motor vehicle accident on July 31, 2010. She applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Aviva denied benefits on the basis that the accident was staged. The parties were unable to resolve their disputes through mediation, and Ms. Marlin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Background:

This matter is related to three other arbitration proceedings: Lennon and Aviva Canada Inc. (A12-000394), Joel and Aviva Canada Inc. (A12-000397), and Harper and Aviva Canada Inc. (A12-000401). A pre-hearing discussion in all four matters was conducted on January 23, 2013. The Applicants did not attend the pre-hearing, although they were each served by the Commission with a Notice of Pre-hearing Discussion at their last known address. Mr. Eduardo Furtado, licensed paralegal with the firm Tzaferis & Furtado LLP (T&F), attended the pre-hearing on record as the Applicants’ representative, but indicated that his firm would be bringing motions in all four matters for orders permitting it to withdraw.

At the pre-hearing, I ordered that the hearing in this matter proceed at the same time as the hearings in the other three related matters. I scheduled the arbitration hearings in all four matters for March 22, 2013, at 10:00 a.m., at the offices of the Commission. Mr. Furtado indicated that he would also use the March 22, 2013 appointment for his firm’s motions to withdraw as the Applicants’ representative.

A Notice of Hearing dated January 31, 2013 was sent by the Commission to each Applicant at their last known address confirming the appointment for the arbitration hearings. I am not aware that any of the Notices were returned as undeliverable.

I also wrote to each party and their representatives on January 23, 2013 confirming the date, time and location of the arbitration hearings, and further confirming that the issues to be adjudicated would be those set out in each respective Application for Arbitration and Response by Insurer to an Application for Arbitration. However, my letter also advised as follows:

Aviva has been advised not to prepare for a contested hearing on March 22, 2013. In the event that Ms. Marlin attends on that date, the hearing will not proceed and the appointment will be converted into a resumption of the pre-hearing discussion. In the event that Ms. Marlin does not attend, then, as noted above, the hearing may proceed in her absence. Ms. Marlin’s application for arbitration may be dismissed and Aviva’s expenses of the arbitration proceeding may be awarded against her.²

On March 22, 2013, at 10:00 a.m., Mr. Furtado of T&F attended at the Commission to speak to his firm’s motions for orders permitting it to withdraw as the Applicants’ representative. Mr. Kevin Griffiths attended on behalf of Aviva for the arbitration hearings (or pre-hearings, in the event that any of the Applicants appeared).

Unfortunately, T&F had not served proper notice on the Applicants that it would be seeking permission to withdraw as their representative at the March 22, 2013 appointment and, as a result, T&F’s motions could not proceed. The parties agreed to adjourn both T&F’s motions and the arbitration hearings to May 31, 2013 at 10:00 a.m. Aviva agreed that it would not seek its expenses associated with the March 22, 2013 attendance.

A second Notice of Hearing dated March 22, 2013 was sent by the Commission to each Applicant at their last known address confirming the new appointment for the arbitration hearings. Again, I am not aware that any of the Notices were returned as undeliverable.

T&F subsequently served and filed motion materials in support of its request to withdraw as the Applicants’ representative. The motions were made returnable on the new hearing date.

ISSUES:

The issue on this motion is:

Should Tzaferis & Furtado LLP be permitted to withdraw as Ms. Marlin’s representative?

The issues on this arbitration hearing are:

Is Ms. Marlin entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from August 1, 2010 and ongoing?
Is Ms. Marlin entitled to payments for caregiver benefits in the amount of $300.00 per week from August 1, 2010 and ongoing?
Is Aviva liable to pay Ms. Marlin’s expenses in respect of the arbitration?
Is Ms. Marlin liable to pay Aviva’s expenses in respect of the arbitration?
Is Ms. Marlin entitled to interest for the overdue payment of benefits?

Result:

Tzaferis & Furtado LLP is permitted to withdraw as Ms. Marlin’s representative.
Ms. Marlin’s application for arbitration is dismissed.
Ms. Marlin shall pay Aviva’s expenses of the arbitration in the amount of $1,099.05 inclusive of HST.

EVIDENCE AND ANALYSIS:

On May 31, 2013 at 10:00 a.m., Mr. Jean-Sébastien Lessard of T&F attended at the Commission to speak to his firm’s motion for an order permitting it to withdraw as Ms. Marlin’s representative. ³ Mr. Kevin Griffiths attended on behalf of Aviva for the arbitration hearing (or pre-hearing, in the event that Ms. Marlin appeared).

By 10:30 a.m., Ms. Marlin had still not appeared at the Commission offices.

Rule 37.7 of the Dispute Resolution Practice Code (4th Ed.) (the “Code”) provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party's absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Further to Rule 37.7, and being satisfied that Ms. Marlin had been properly served at her last known address with notice of both T&F’s motion and the arbitration hearing, both matters proceeded in her absence.

With respect to T&F’s motion, I was satisfied that T&F had complied with the requirements of Rule 9 of the Code. It filed properly served affidavit materials that established a breakdown in the solicitor-client relationship between Ms. Marlin and T&F. The materials also contained Ms. Marlin’s last known contact information. Therefore, I permitted T&F to withdraw as Ms. Marlin’s representative.

Having granted T&F’s motion, the arbitration hearing then proceeded with Ms. Marlin unrepresented. As Ms. Marlin did not attend to present any evidence, she failed to establish her entitlement to the benefits claimed. Ms. Marlin’s claims were therefore dismissed.

EXPENSES:

Aviva requested its expenses of the arbitration and submitted a Bill of Costs for $1,099.05 (fees of $796.67 inclusive of HST, and disbursements of $302.20 inclusive of HST).

Mr. Griffiths confirmed that the Bill of Costs did not include any expenses for the March 22, 2013 attendance. Although somewhat sparse in detail, I am satisfied that the Bill of Costs reflects a reasonable amount for fees for the two recoverable attendances at the Commission (the pre-hearing on January 22, 2013 and the hearing on May 31, 2013) as well as related preparation and travel time. I am also satisfied that the Bill of Costs reflects a reasonable amount for recoverable disbursements.

Aviva is therefore entitled to its expenses of the arbitration in the amount of $1,099.05 inclusive of HST.

June 28, 2013

Robert Bujold

Arbitrator

Date