Rachel Poku v. Belair Insurance Company Inc., 2013 ONFSCDRS 9

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 9

FSCO A12-000600

BETWEEN:

RACHEL POKU

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Richard Feldman

Heard: By written hearing, conducted in accordance with Rule 68 of the Dispute Resolution Practice Code

Issues:

The preliminary issue is:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, should this application be dismissed without a hearing because it is frivolous or vexatious?

Result:

This application is dismissed.

EVIDENCE AND ANALYSIS:

The Applicant commenced this application against the Insurer on February 8, 2012. The Insurer filed its response on or about March 13, 2012.

A pre-hearing conference was scheduled to take place on October 4, 2012. A motion was heard on that date wherein the Applicant’s legal representatives (Lofranco Scarola Wentzel Legal Services) sought permission to be removed from the record because of the repeated failure of the Applicant to communicate with them or to provide them with instructions with respect to this matter. Despite having been duly served with notice of the pre-hearing conference and the motion, the Applicant failed to attend on October 4, 2012.

The motion was granted and I permitted Lofranco Scarola Wentzel Legal Services to remove themselves as the Applicant’s legal representatives (see my order of October 30, 2012).

I then heard the Insurer’s request that I dismiss this application as being frivolous or vexatious. Pursuant to Rule 68 of the Dispute Resolution Practice Code, I wrote to the Applicant on October 30, 2012 to advise her as follows:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

It is my intention to grant the Insurer’s request to dismiss this application unless you can provide reasonable grounds for doing otherwise. In accordance with Rule 68.3, if you wish to dispute such a dismissal, I grant you 20 days from the date of this letter in which to serve upon the Insurer’s counsel and to file with me any written submissions you wish me to consider, setting out the grounds upon which you object to this dismissal of the proceeding or setting out any other issues or concerns you wish me to consider.

After 20 days have elapsed, I shall consider any written objections or submissions received and make an order on such terms as I consider just.

To date, I have received no written submissions (or any other communication) from the Applicant. She failed to attend the pre-hearing conference without excuse and appears to have no interest in pursuing this matter any further. I therefore find that this application has become vexatious and, as such, it ought to be dismissed.

If either party wishes to make any submissions with respect to the issue of expenses, they may do so in accordance with Rules 75-79 of the Dispute Resolution Practice Code.

January 16, 2013

Richard Feldman

Arbitrator

Date