Anita Aku Akwei v. Intact Insurance Company, 2014 ONFSCDRS 100

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 100

FSCO A12-001841

BETWEEN:

ANITA AKU AKWEI

Applicant

and

INTACT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: May 9, 2014 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Ms. Akwei

Ms. Viktoria Anteby for Intact Insurance Company

Issues:

The Applicant, Anita Aku Akwei, was injured in a motor vehicle accident on July 19, 2009. Disputes arose between Ms. Akwei and her insurer, Intact Insurance Company (“Intact”), concerning her entitlement to accident benefits payable under the Schedule¹ and Ms. Akwei applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

EVIDENCE AND ANALYSIS:

Ms. Akwei did not appear at the pre-hearing discussion on March 4, 2014, nor did any representative appear on her behalf. At that time I scheduled an arbitration hearing for May 9, 2014 at 10:00 a.m. at the offices of the Financial Services Commission. The hearing date was peremptory on Ms. Akwei. The hearing was scheduled on the basis that if Ms. Akwei appeared, the hearing would be converted to a pre-hearing. If Ms. Akwei did not attend, I was prepared to entertain a motion by Intact to dismiss all of her claims. In the pre-hearing letter, dated March 6, 2014 and sent to the last address on record, Ms. Akwei was advised of Rule 68 of the Dispute Resolution Practice Code, which states that a hearing may be dismissed if the proceeding is deemed to be frivolous, vexatious or commenced in bad faith. Rule 9.1(c) of the Code provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.

Ms. Akwei did not appear for the hearing. I dealt with another matter in the interim. At 12 noon Ms. Akwei had not appeared, nor had anyone on her behalf.

Counsel for Intact moved that Ms. Akwei’s Application for Arbitration be dismissed. Intact served a motion record on Ms. Akwei by regular mail on April 16, 2014.

Rule 68 states:

Dismissal of proceeding without hearing

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 the 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.

68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

(a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and

(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.

No evidence was adduced on Ms. Akwei’s behalf. She has not responded to notices of pre-hearing or hearing, nor has she provided any written objections or submission. At this point Ms. Akwei’s claims have become vexatious.

Accordingly I dismiss the claims set out in her Application for Arbitration.

EXPENSES:

Intact claimed its expenses set out in a Bill of Costs, in the amount of $2,185.87, as a result of Ms. Akwei’s non-attendance at one pre-hearing and today’s hearing. The work outlined included correspondence, review of file, drafting of pleadings and preparation and attendance at pre-hearings.

I note that some of this work was undertaken when Ms. Akwei had counsel and her application was moving forward in the usual fashion.

By failing to give Intact and FSCO notice of her intention to proceed or not proceed with her claims, Ms. Akwei has effectively prolonged these proceedings and put Intact to unnecessary expense. I considered counsel’s time in preparing for and attending today’s hearing as costs thrown away. According, I fixed Intact’s expenses at $850.00, inclusive of HST, payable forthwith.

June 16, 2014

Stuart J. Mutch

Arbitrator

Date