Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 11
FSCO A13-003876
BETWEEN:
NICOLE GAREY
Applicant
and
PERSONAL INSURANCE COMPANY of CANADA
Insurer
REASONS FOR DECISION
Before: Jessica Kowalski
Heard: January 13, 2015 at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: No one appearing for Ms. Garey
Jessica M. Bacopulos for Personal Insurance Company of Canada
Issues:
The applicant, Nicole Garey, brought an application for arbitration alleging impairments arising from injuries she allegedly sustained in a motor vehicle accident on October 3, 2009. She claimed statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.1 Issues arose concerning Ms. Garey’s entitlement to certain benefits. The parties were unable to resolve their disputes through mediation, and Ms. Garey applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Issues:
The issues in this hearing are:
Is Ms. Garey entitled to receive a weekly income replacement benefit, in the amount of $400.00 per week, from October 10, 2009 to date and ongoing, less any amounts paid?
Is Ms. Garey entitled to payments of $100.00 per week from October 3, 2009 to October 2, 2011, less any amounts paid, for housekeeping and home maintenance services?
Is Ms. Garey entitled to payment of $1,031.08 for a follow-up in-home assessment by Best Choice Medical dated April 4, 2010?
Is Personal liable to pay Ms. Garey’s expenses in respect of the arbitration?
Is Ms. Garey liable to pay Personal’s expenses in respect of the arbitration?
Is Ms. Garey entitled to interest for the overdue payment of benefits?
Result:
- The application for arbitration is dismissed.
Ms. Garey did not attend the hearing and has failed to take any steps to pursue her claims. I find that she has, without reasonable excuse, failed to produced documents, to instruct her former representatives and to participate in a process that she has initiated.
She has not proved entitlement to the benefits she claims and her application for arbitration is therefore dismissed.
Background
On March 28, 2013, the Commission received an application for arbitration from Ms. Garey for resolution of the above-noted claims. At the time her application was filed, Ms. Garey was represented by the law firm of Bergel, Magence LLP.
On April 23, 2014, Bergel, Magence LLP moved for an order removing them as Ms. Garey’s solicitors of record. Although served with the notice of motion at her last known address, Ms. Garey did not participate. In an order dated August 19, 2014, Arbitrator Pressman wrote that the solicitors had been unable to contact Ms. Garey or seek her instructions since November 2013. She found that there had been a breakdown in the solicitor-client relationship and ordered Bergel, Magence LLP removed as Ms. Garey’s solicitors of record. In a letter of the same date, Arbitrator Pressman confirmed that the pre-hearing in this case was scheduled to proceed on October 7, 2014. The details were confirmed in a formal Notice to the parties issued by the Commission. The Notice set out consequences of a failure to attend.
The pre-hearing proceeded before me on October 7, 2014. A representative from Personal attended with counsel. Ms. Garey did not attend, although she was served with Notice. At the start of the pre-hearing, I made several unsuccessful attempts to contact Ms. Garey at three telephone numbers on file. Two numbers appeared to be wrong numbers. A female answering the third number terminated the call when I identified myself; after a second attempt, the same woman advised me that I had the wrong number.
When Ms. Garey failed to arrive after 30 minutes, I proceeded with the pre-hearing in her absence. I set a hearing date for December 2, 2014 that would be converted to a pre-hearing if Ms. Garey attended. By omission, notice of that date was not sent to Ms. Garey. Ms. Jessica Bacopulos, counsel for Personal, attended on December 2, 2014. However, the matter did not proceed and was rescheduled so that Ms. Garey could be given the appropriate notice and opportunity to participate. Accordingly, the hearing was rescheduled for January 13, 2015 and formal Notice sent to Ms. Garey at her last known address.
Ms. Garey has not responded to any correspondence from the Commission, nor has she advised the Commission of any change of address or contact information. No correspondence sent by the Commission to her last known address has been returned.
Section 7 of the Statutory Powers Procedure Act states:
7.(1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
Rule 37.7 of the Dispute Resolution Practice Code states:
37.7 Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written 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.
Despite having been served with Notice, Ms. Garey failed to attend the hearing on January 13, 2015. I delayed the start of the hearing for 40 minutes to give her an opportunity to appear.
Based on submissions from her former counsel in support of their motion to be removed as solicitors of record, and based on Ms. Garey’s failure to participate in any proceedings in support of her application for arbitration, it has become apparent that she has abandoned her application.
Ms. Garey has failed to establish entitlement to the benefits she has claimed and her application for arbitration is therefore dismissed.
EXPENSES
If Personal intends to seek an order for its expenses, counsel may, within 30 days, make brief written submissions as to the quantum of expenses.
January 26, 2015
Jessica Kowalski Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 11
FSCO A13-003876
BETWEEN:
NICOLE GAREY
Applicant
and
PERSONAL INSURANCE COMPANY of CANADA
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.
January 26, 2015
Jessica Kowalski Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.