Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 69

FSCO A11-001224

BETWEEN:

ANGELO MICHAEL ROMAN

Applicant

and

INTACT INSURANCE COMPANY

Insurer

Before: John Wilson

Heard: August 19, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No-one appearing for Mr. Roman Alex Dirlis for Intact Insurance Company

Issues:

The Applicant, Angelo Michael Roman, was injured in a motor vehicle accident on January 28, 2010. He applied for statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Roman applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Should Mr. Roman’s arbitration be dismissed as abandoned?

Result:

The arbitration is dismissed.
Mr. Roman shall forthwith pay Intact $2,035.95, inclusive of HST, as fixed expenses

EVIDENCE AND ANALYSIS:

There was no dispute as to whether Mr. Roman was in a motor vehicle accident. The dispute in this matter stemmed from whether Intact was liable to pay a weekly income replacement benefit, certain medical benefits, attendant care services, housekeeping and the costs of certain examinations.

Initially, Mr. Roman engaged Mr. Gary Mazin of what was then Mazin Rooz Mazin, to advance his claim against Intact. An Application for Arbitration was filed on April 7, 2011 by Mr. Mazin As is frequently the case, the Application was not signed by the Applicant, only by Gary Mazin, his lawyer.

At a pre-hearing which was held on December 7, 2011, the parties agreed to set down the arbitration for hearing. The hearing dates would be the week of April 8, 2013.

On December 5, 2012, Mr. Mazin’s office wrote to the Commission requesting an adjournment “due to an unavoidable scheduling conflict arisen as a result of … dissolving the partnership.”

On March 26, 2012, Mr. Mazin wrote to the Commission and Intact enclosing a hand-written letter from Mr. Roman in which he stated:

I Angelo Roman wish to close my cases. (sentence redacted in original) I want all my cases closed. Once my cases are all closed I do not want Mazin Rooz to represent me any more.

Mr. Mazin’s letter also requested that he be removed as counsel of record.

Subsequently, on April 18, 2012, Mr. Mazin’s office wrote to the Commission advising that Mr. Roman now wanted to proceed with his claim.

On May 29, 2013, Mr. Mazin’s office wrote again seeking to be removed as counsel of record since he was unable to obtain instructions from his client. Intact did not request any explanation for this remarkable turnaround, and, more importantly did not oppose Mr. Mazin’s removal as counsel of record.

In the affidavit in support of being removed from the record, Ms. Inna Ryzhkova, an assistant in Mr. Alexander Mazin’s office, swore that “between March 24, 2013 and June 20, 2013 respectively, our office made several follow up telephone calls to Mr. Roman without any success.”

By order of Arbitrator Fadel contained in a letter date July 19, 2013 addressed to Mr. Roman and others, the Mazin firm was removed as counsel of record for Mr. Roman.

The hearing in this matter remained scheduled to commence on August 19, 2013. I am satisfied that Mr. Roman was likely given notice of the hearing date by communication with his solicitor at the time the date was set, and more importantly, by the Notices of Hearing sent out by the Commission to the address supplied by Mr. Roman.

Unfortunately Mr. Roman did not appear for his hearing on August 19, 2013. Counsel for Intact, Mr. Alex Dirlis, appeared and moved for dismissal of the arbitration by reason of the abandonment by Mr. Roman of his claim.

Given the failure of Mr. Roman to attend, notwithstanding notice of the proceeding, I ordered that this arbitration be dismissed in its entirety.

EXPENSES:

As noted in the Insurer’s Response, Intact at all times has advanced a claim for its expenses incurred in defending this claim by Mr. Roman. Being successful on all fronts, Intact, barring exceptional circumstances, would be entitled to an expense order.

At the dismissal hearing, I ordered that Intact provide Mr. Roman with an expense outline containing a summary of its costs as claimed. The total amounts claimed were $1,701.73 in fees, $221.22 in HST and $113.00 in disbursements, for a total of $2,035.95.

I gave Mr. Roman some 30 days to respond to Intact’s expense claim. I have heard nothing from him or anyone representing him.

While that lack of response might be a reflection of the wishes expressed in the February 18, 2012 letter from Mr. Roman in which he stated that he wanted to close his cases, we have the express instruction from his counsel on April 18, 2012 to “disregard the earlier March 26, 2012 correspondence.”

No-one has suggested that we should in any way go behind the representations made by counsel that he had full authority to continue, notwithstanding the earlier written instructions.

Consequently, I accept that Mr. Roman overcame his early misgivings and instructed the Mazin firm to continue with this matter. In doing so, Mr. Roman accepted responsibility for any further expense order that arose in the pursuit of his claim.

As Mr. Roman should have known, having commenced litigation or arbitration, there is a cost associated with ignoring notices of hearing and failing to respond to communications from the Commission and his solicitors.

Having reviewed the amounts claimed by counsel for Intact, I find that they are reasonable, even in the framework of the legal aid costs grid which guide any award of expenses at FSCO.

Consequently, I order that Mr. Roman pay to Intact Insurance Company $2,035.95 forthwith as expenses incurred by Intact in defending this claim (inclusive of HST).

April 17, 2014

John Wilson

Arbitrator

Date