Ivana Vukov v. Aviva Canada Inc., 2014 ONFSCDRS 70

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 70 FSCO A11-002668

BETWEEN:

IVANA VUKOV Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Arbitrator John Wilson Heard: December 9, 2013 at Kitchener, Ontario Appearances: Ms. Vukov was self-represented Sean Giovannetti for Aviva Canada Inc.

Issues:

The Applicant, Ivana Vukov, was injured in a motor vehicle accident on November 19, 2007. She applied for statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Vukov 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:

1. Should this matter be adjourned again to permit Ms. Vukov to retain counsel?
2. Should this matter be ordered transferred to the Superior Court?
3. If this is not adjourned, should Ms. Vukov's benefits claim be dismissed?

Result:

1. The adjournment request is denied.
2. There is no jurisdiction to order a transfer to the Superior Court.
3. Ms. Vukov's claims are dismissed.

EVIDENCE AND ANALYSIS:

Ms. Vukov's Application for Arbitration was filed on her behalf by her then lawyer, Mr. William Cline of Kitchener. Ms. Vukov, in her Application for Arbitration, claimed a non-earner benefit, some minor medical expenses, a lost educational expense, housekeeping and home maintenance expenses as well as costs related to clothing and accessories damaged in the accident.

A pre-hearing was held on May 24, 2012 before Arbitrator Richards. According to the report issued by the arbitrator, Ms. Vukov, through her counsel, agreed to confirm undertakings made within 30 days and to complete production exchange within 90 days of the pre-hearing. The parties also agreed to produce a joint arbitration brief, at least 30 days prior to the commencement of the hearing, which it was then agreed would take place commencing February 25, 2013.

By September of 2012, Mr. Giovannetti, counsel for Aviva, was already writing to the Commission advising of his client's concerns arising from uncompleted productions. Arbitrator Richards, in turn, wrote to Mr. Cline, urging the parties to make efforts to resolve the production disputes.

On October 30, 2012, Mr. Giovannetti wrote again to Mr. Cline with a long list of unfulfilled productions including a decoded OHIP summary, the notes and records of her physicians, university records and income tax returns.

By November 30, 2012, Mr. Giovannetti wrote to the pre-hearing arbitrator requesting a resumption of the pre-hearing since:

Our attempts to resolve this matter have been met with unresponsiveness, i.e. no further undertakings have been answered, no letters have been received from Mr. Cline or anyone at his office and no telephone calls have been received from Mr. Cline's office.

The pre-hearing was resumed on January 25 and 31, 2013. The outcome of the pre-hearing process was that Mr. Cline requested permission to withdraw as counsel of record, which was granted, and that the arbitration hearing was adjourned from February 2013 to December 2013.

Arbitrator Richards included in the pre-hearing letter a warning that in the event of non-attendance or non-participation at a hearing, the arbitrator "may proceed with the hearing in the party's absence or without the party's participation as the case may be, and the party is not entitled to any further notice in the proceeding."

He concluded with the statement that he expected "Ms. Vukov to address her unfulfilled production undertakings well in advance of the hearing."

On July 18, 2013, Mr. Giovannetti wrote to Ms. Vukov and stated:

Five months have passed and you have not answered any of the outstanding undertakings. We have not received any information regarding the status of your alleged police investigation. We have also not been contacted by a new legal representative and when I tried to call you to discuss your claim or the status of the matters discussed at the last pre-arbitration hearing, you refused to discuss any of these issues.

Mr. Giovannetti identified the outstanding production undertakings and advised:

To the extent required, at the arbitration hearing I will ask that arbitrator to draw adverse inferences against you to the extent that the undertakings remain unanswered or are not answered immediately.

On October 31, 2013 Mr. Giovannetti wrote to Ms. Vukov again, requesting the promised documents. This time he enclosed authorizations and a stamped self-addressed envelope to return them in. In short, if Ms. Vukov would co-operate, his firm would do the legwork to obtain the documents that had already been promised to Aviva. There is no