DECISION ON A MOTION

Before: Stuart J. Mutch Heard: September 19, 2014 by teleconference Appearances: Ms. Oyebade, on her own behalf Mr. Geoffrey Keating for TD General Insurance Company

Background

The Applicant, Anuoluwapo Oyebade, was injured in a motor vehicle accident on May 30, 3010. Disputes arose between Ms. Oyebade and her insurer, TD Assurance Company (“TD”), concerning her entitlement to accident benefits payable under the Schedule¹ and Ms. Oyebade applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

A pre-hearing was scheduled for October 23, 2013. Ms. Oyebade’s representative at the time attended as did Mr. Keating for TD. Ms. Oyebade did not attend. The pre-hearing was rescheduled to December 13, 2013 by teleconference. At that time Ms. Oyebade attended by teleconference from the United Kingdom, along with her representative and representatives of TD. At that time, Ms. Oyebade’s representative indicated a wish to withdraw and TD’s counsel indicated that he had instructions to request the dismissal of her claims. I was concerned that there had been inadequate notice of both of these intentions and I adjourned the pre-hearing to February 21, 2014.

The pre-hearing was resumed, again by teleconference. At that time, Ms. Oyebade’s representative was permitted to withdraw. The issues for arbitration were identified. TD made production requests of Ms. Oyebade that were recorded in my pre-hearing letter of February 24, 2014. The parties agreed to the scheduling of a three day arbitration hearing at FSCO offices commencing December 1, 2014. Ms. Oyebade was encouraged to retain other counsel. Counsel for TD had filed motion materials requesting a dismissal. For whatever reason those materials were not before me at the time.

In April, counsel for TD contacted FSCO asking that a motion date be scheduled. After consultation with both parties, the motion was scheduled by teleconference for September 19, 2014 at 10 a.m. E.D.T.

The Motion

The motion was heard by teleconference, after a one hour delay. Counsel for TD requested that Ms. Oyebade’s claims be dismissed on the basis that she had not complied with the production requests set out in the pre-hearing letter. He advised that he had sent two letters to Ms. Oyebade requesting productions.

Ms. Oyebade indicated that she had made telephone enquiries but that she could not obtain any of the documents. She could not name any of the individuals she had spoken to. In some cases she was unable to locate the company in question and expressed the belief that they were no longer in business. She did not make any requests in writing, which would be the necessary course of action in order to obtain copies of personal information. She believes that the offices of her former counsel have the documents, but apparently she has not taken any action to obtain them.

Ms. Oyebade was asked if she was planning to attend the hearing scheduled for December 1, 2014 in Toronto. She indicated that she had no plans and “wasn’t sure”. She indicated she might be able to come to Canada in 2015.

The Dispute Resolution Practice Code (“the Code”) contains rules for timely, cost-effective and fair dispute resolution services. Rule 68 of the Code provides for dismissal of a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

Ms. Oyebade resides in the U.K. Her relationship with her former counsel had begun to break down in November of 2013. Since February of this year she has been without counsel of record. It is now ten weeks before the hearing. She has shown no intention of retaining new counsel, producing evidence to support her claims or even of returning to Canada to attend the hearing. TD has made reasonable production requests of Ms. Oyebade. She has made little effort to comply with those production requests over the seven months since they were made.

Ms. Oyebade was given notice of Rule 68 in my letter of December 13, 2013, when TD had indicated its intention to request a dismissal.

In my view, Ms. Oyebade is not taking the arbitration process seriously. As matters stand, it appears unlikely that she will attend and present evidence at the scheduled hearing. This proceeding has become vexatious.

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

There is no order as to expenses.

October 6, 2014

Stuart J. Mutch Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 164 FSCO A13-003648-PI

BETWEEN:

ANUOLUWAPO OYEBADE Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Ms. Oyebade’s Application for Arbitration is dismissed.
There is no order as to expenses.