Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2014 ONFSCDRS 65
FSCO A12-007125
BETWEEN:
OMAIRA OVALLE
Applicant
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: By telephone conference call on February 28, 2014
Written submissions were received from Ms. Ovalle on January 24, 2014
Appearances: No one appearing for Ms. Ovalle
Jasmina Mrkalj-Skelly for Certas Direct Insurance Company
Issues:
Omaira Ovalle, the applicant, was injured in a motor vehicle accident on January 28, 2006. She submitted a treatment plan dated January 19, 2011 for medical services, payable under the Schedule1, to Certas Direct Insurance Company (“Certas”) for which Certas denied approval. The parties were unable to resolve this dispute through mediation, and Ms. Ovalle applied for arbitration at the Financial Services Commission of Ontario.2
The particular issue to be decided is whether Ms. Ovalle’s application for arbitration should be dismissed because she failed to participate in the arbitration process in respect of this singular treatment plan.
Result:
- Ms. Ovalle’s application for arbitration is dismissed.
EVIDENCE AND ANALYSIS:
Ms. Ovalle has only intermittently participated in the arbitration process since she filed her application for arbitration in November 2012 prompting Certas to ask for an order dismissing Ms. Ovalle’s application for arbitration.
Ms. Ovalle did not participate in either of the two pre-hearings scheduled in this matter. On the first of those dates, September 25, 2013, her counsel of record appeared indicating that he had been unable to obtain instructions from her and he asked for a motion date so that he could seek an order removing him as counsel of record. On November 1, 2013, an arbitrator permitted counsel to withdraw from the record. Ms. Ovalle participated in that proceeding, via teleconference, confirming her address but inexplicably refusing to orally verify her phone number. It was unclear to the arbitrator, however, whether Ms. Ovalle would obtain new representation or pursue her claims on her own.3
Ms. Ovalle also failed to appear or otherwise participate in the second pre-hearing date, set for January 2, 2014. The arbitrator’s follow-up letter from that proceeding gave Ms. Ovalle notice of Certas’ motion to dismiss her arbitration on the basis that it was frivolous, vexatious or commenced in bad faith4, which was set down for February 28, 2014. Ms. Ovalle responded in writing to this notice by letter dated January 24, 2014.
Ms. Ovalle’s letter of January 24, 2014 does not directly address her intentions with respect to her claims. She attempts to outline the chronology of her claims and expresses concerns with respect to the handling of her case by a former legal counsel. It is difficult to discern the purpose of the correspondence, however, in part because it is clear that English is not Ms. Ovalle’s first language.
In any event, and despite being notified of the date, Ms. Ovalle did not appear for the motion on February 28, 2014 nor was she reachable by telephone.
Having heard submissions from Certas, I found that Ms. Ovalle’s claims should be dismissed, not on the basis that they are frivolous, vexatious or commenced in bad faith, but because there was insufficient evidence before me on which basis I could find her entitled to them, primarily because she failed to participate in the proceedings in any meaningful or effective manner.
EXPENSES:
Certas also asked for its expenses of the motion, amounting to $763.44 (inclusive of HST).
I am aware that both the Commission’s correspondence to Ms. Ovalle and Certas’ letters, sent directly to her once she was no longer represented, advised that expenses for the motion could be claimed against a party. In particular, Certas’ letter to her, dated January 2, 2014, indicated that the motion and any associated expenses could be avoided if Ms. Ovalle communicated with Certas about her claims. Ms. Ovalle neither provided Certas with any information about her claims for arbitration nor did she directly address the need for the motion.
Having been successful on the motion, Certas is entitled to its reasonable expenses which I fix at $350.
April 15, 2014
Rosemary Muzzi Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2014 ONFSCDRS 65
FSCO A12-007125
BETWEEN:
OMAIRA OVALLE
Applicant
and
CERTAS DIRECT 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:
The application for arbitration is dismissed.
Ms. Ovalle shall pay expenses fixed at $350 to Certas.
April 15, 2014
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- under the Insurance Act, R.S.O. 1990, c.I.8, as amended
- Letter dated November 4, 2013 from arbitrator Suesan Alves
- Pursuant to Rule 68 of the Dispute Resolution Practice Code