Isaak Awuau v. Intact Insurance Company, 2014 ONFSCDRS 101

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 101

FSCO A12-001840

BETWEEN:

ISAAK AWUAU

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 Mr. Awuau Mr. Viktoria Anteby for Intact Insurance Company

Issues:

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

EVIDENCE AND ANALYSIS:

Mr. Awuau did not appear at the pre-hearing discussion on March 4, 2014, nor did any representative appear on his 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 Mr. Awuau. The hearing was scheduled on the basis that if Mr. Awuau appeared, the hearing would be converted to a pre-hearing. If Mr. Awuau did not attend, I was prepared to entertain a motion by Intact to dismiss all of his claims. In the pre-hearing letter, dated March 6, 2014 and sent to the last address on record, Mr. Awuau 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.

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

Counsel for Intact moved that Mr. Awuau’s Application for Arbitration be dismissed. Intact had served a motion record on Mr. Awuau 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 Mr. Awuau’s behalf. He has not responded to notices of pre-hearing or hearing, nor has he provided any written objections or submissions. At this point Mr. Awuau’s claims have become vexatious.

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

EXPENSES:

Intact claimed its expenses, set out of a Bill of Costs, in the amount of $2,140.65, as a result of Mr. Awuau’s non-attendance at the pre-hearing and at today’s hearing. The work outlined included correspondence, review of file, drafting of pleadings and preparation and attendance at pre-hearings and motions.

I note that some of this work was undertaken when Mr. Awuau had counsel and his application was moving forward in the usual fashion.

By failing to give Intact and FSCO notice of his intention to proceed or not proceed with his claims Mr. Awuau 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. Accordingly, I fixed Intact’s expenses at $850.00, inclusive of HST, payable forthwith.

June 16, 2014

Stuart J. Mutch Arbitrator

Date