Financial Services Commission of Ontario / Commission des services financiers de l’Ontario

Neutral Citation: 2014 ONFSCDRS 144

FSCO A13-007920

BETWEEN:

THARMENTHIRAN PONNAMPALAM

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

Before: Stuart J. Mutch

Heard: August 27, 2014 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Clifford Singh for Mr. Ponnampalam Ms. Tamara Broder for TTC

Issues:

The Applicant, Tharmenthiran Ponnampalam, was injured in a motor vehicle accident on August 14, 2010. Disputes arose between Mr. Ponnampalam and his insurer, Toronto Transit Commission Insurance Company Limited (“TTC”), concerning his entitlement to accident benefits payable under the Schedule¹, and Mr. Ponnampalam applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

EVIDENCE AND ANALYSIS:

A pre-hearing discussion took place on March 27, 2014. Mr. Ponnampalam did not appear at the pre-hearing discussion. At that time a hearing was scheduled for June 6, 2014 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario. On June 5, 2014, that hearing was adjourned, on consent, to August 27, 2014 at 2:00 p.m.

The hearing subsequently took place as scheduled. Mr. Singh attended, as did Ms. Broder, legal counsel for TTC and Mr. Frank Mastrocola, claims adjuster with TTC. Mr. Ponnampalam did not appear.

Motion to be permitted to withdraw as Mr. Ponnampalam’s representative

Mr. Singh provided me with a motion record requesting that Taylor Steinberg & Baber, Professional Corporation, be removed as Mr. Ponnampalam’s solicitor of record. Mr. Singh asked me to waive service of the motion record on Mr. Ponnampalam. The affidavit of Susan Murray, filed with the motion, indicates that Taylor Steinberg & Baber had made numerous requests to contact Mr. Ponnampalam at his last known telephone number and that Mr. Ponnampalam, had not responded to the letter sent May 13, 2013, asking to him to promptly contact the law firm. Mr. Singh advised that he could not remember when he last had contact with Mr. Ponnampalam but that it was prior to the May 13, 2013 letter. He indicated that mail sent to Mr. Ponnampalam has been returned to his office.

Normally, it is an absolute requirement that a party be served with a motion record requesting relief that may have an impact on the party. However, in these circumstances, where the party’s whereabouts appear to be unknown, and previous communications have been returned, it would seem redundant to attempt service on such a party. As well, Mr. Singh advised Mr. Ponnampalam, by way of letter dated September 24, 2013, that he was no longer representing him. Further, in granting the June 5, 2014 adjournment request, Arbitrator Bujold indicated, in a letter copied to Mr. Ponnampalam, that Mr. Singh intended to request an order permitting his firm to withdraw as Mr. Ponnampalam’s representative. In these circumstances I waived the requirement that Mr. Ponnampalam be served.

Mr. Ponnampalam has apparently not communicated with his counsel since before May of 2013. He has failed to attend a pre-hearing and a hearing at FSCO. I am satisfied there has been a breakdown in the solicitor/client relationship. Taylor Steinberg & Baber, Professional Corporation, is permitted to withdraw as Mr. Ponnampalam’s representative.

Motion for dismissal

Counsel for TTC moved that Mr. Ponnampalam’s claims should be dismissed on the basis that they are frivolous, vexatious and commenced in bad faith.

Mr. Ponnampalam has failed to participate in the dispute resolution process, as required by the Dispute Resolution Practice Code (the “Code”). He did not attend either the pre-hearing or the hearing despite proper notice being sent to his last know address. 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. There is no evidence that Mr. Ponnampalam has tried to contact FSCO. No evidence was presented in support of Mr. Ponnampalam’s claims at today’s hearing. He has failed to prove entitlement to the benefits claimed. I therefore dismiss the claims made by Mr. Ponnampalam in his Application for Arbitration.

Expenses

TTC claimed its expenses for the cost of responding to Mr. Ponnampalam’s Application for Arbitration, including reviewing his application, preparing a response, attending at a pre-hearing, as well as the filing fees for both the mediation and arbitration processes.

Rule 75 of the Code sets out the criteria for the awarding of expenses. They are:

(a) each party's degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with Rule 76;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

(f) whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation; and

(g) whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation.

TTC has certainly been successful in defending these claims − they have been dismissed in their entirety. As well, it is apparent that Mr. Ponnampalam has not been diligent in advancing his claims. His lack of communication with both his counsel and with FSCO and his non-attendance at the pre-hearing has unduly prolonged the proceedings.

At the hearing I awarded TTC one-half of the counsel fees claimed, being $495.00 plus HST and the $3,000.00 arbitration fee, payable forthwith. On reflection, and on re-reading Section F – Expense Regulation of the Code, it appears that the arbitration filing fee payable by the insurer is not a listed Dispute Resolution Expense. I believe I erred in awarding TTC the arbitration filing fee as part of the expense award. I therefore recind that part of the award. The award of counsel fees stands; I believe this accurately reflects the hours set out in the submitted Bill of Costs at the current hourly rates set out in the Legal Aid Services Act.

September 2, 2014

Stuart J. Mutch Arbitrator

Date