Yu Kong v. TD Home and Auto Insurance Company, 2015 ONFSCDRS 102

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

Neutral Citation: 2015 ONFSCDRS 102

FSCO A13-014843

BETWEEN:

YU KONG

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Cindy Dymond

Heard: By teleconference on April 16, 2015

Appearances: No one participated for Mr. Yu Kong Ms. Wendy Breuer participated for TD Home and Auto Insurance Company

Issues:

The Applicant, Mr. Yu Kong, was injured in a motor vehicle accident on October 3, 2011 and sought accident benefits from TD Home and Auto Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Kong, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this Preliminary Hearing is:

Should Mr. Kong’s Application for Arbitration be dismissed?

Result:

Pursuant to Rule 68 of the Dispute Resolution Practice Code and with the consent of the Insurer, the Application for Arbitration is dismissed and the file is closed.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion in this case was held on January 26, 2015 at the offices of ADR Chambers. Mr. Kong did not participate. Ms. Victoria Gorbenko, licensed paralegal, represented Mr. Kong. She indicated that she had been unable to make contact with her client. A Resumption of the Pre-Hearing was scheduled for March 12, 2015, by teleconference. Mr. Kong did not participate in that teleconference either. He was represented at the resumption by Ms. Olga Kanevsky, legal counsel. Prior to the Resumption, Ms. Kanevsky had requested, in writing, to be removed as counsel of record. She provided evidence of numerous attempts to reach her client over a period of several months without success. The motion to be removed as counsel of record was granted at the Pre-Hearing Resumption on March 12, 2015.

At the Pre-Hearing Resumption on March 12, 2015, Ms. Breuer, Counsel for TD, raised a motion to dismiss the Application for Arbitration. A Preliminary Issue Hearing was scheduled for April 16, 2015, by teleconference, to deal with the motion to dismiss.

Following the Pre-Hearing Resumption, my letter to Mr. Kong, on March 12, 2015, stated: “Please note the Preliminary Issue Hearing is peremptory and the Application for Arbitration may be dismissed if Mr. Kong does not attend or is not available by telephone to participate.” I indicated that if I did not hear from Mr. Kong, his Application could be dismissed without further notice. This letter was sent to Mr. Kong by registered mail.

No response was received from Mr. Kong, in writing, by email, or by telephone. At the Preliminary Issue Hearing on April 16, 2015, I also attempted to reach Mr. Kong, by telephone, but was unsuccessful.

Therefore, pursuant to Rule 68 of the Dispute Resolution Practice Code and with the consent of the Insurer, Mr. Kong’s Application for Arbitration is dismissed and the file closed.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Dispute Resolution Practice Code.

May 12, 2015

Cindy Dymond Arbitrator

Date