Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 149
FSCO A14-001947
BETWEEN:
KANOON KANOON
Applicant
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Karina Kowal
Heard: By telephone conference call on June 17, 2015 and written submissions received July 7, 2015
Appearances: Mr. Kanoon Kanoon did not participate Mr. Michael Kelly for Mr. Kanoon Kanoon Ms. Alana Daley for Certas Direct Insurance Company
Issues:
Mr. Kanoon Kanoon was injured in an automobile accident on August 20, 2011, and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) payable under the Schedule.1 The parties were unable to resolve their disputes through mediation and Mr. Kanoon, through his legal 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 issues in this Motion are:
Should Michael Kelly Law Office be removed from the record as Mr. Kanoon’s legal representative?
Should Mr. Kanoon’s Application for Arbitration be dismissed?
Is Certas entitled to their expenses in preparing for and attending the Arbitration proceedings from Mr. Kanoon, and if so, in what amount?
Result:
Michael Kelly Law Office is removed from the record as Mr. Kanoon’s legal representative.
Mr. Kanoon’s Application for Arbitration is dismissed.
Certas is entitled to their expenses with respect to this Application for Arbitration in the amount of $500.00, payable forthwith.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was scheduled for March 19, 2015, for which Mr. Kanoon failed to appear. Mr. Kelly brought a motion to be removed as representative of record, as he had been unable to obtain instructions from Mr. Kanoon since June 2014. Certas brought a countermotion to dismiss the Application for Arbitration, and would advise on costs at a later date. The matter was adjourned to June 17, 2015 at 11:00 a.m., on a peremptory basis.
On March 19, 2015, I sent a letter to Mr. Kanoon to his last known address to advise him of the missed Pre-Hearing discussion and of the motion from his counsel to be removed from the record and that Certas requested that his Application for Arbitration be dismissed with costs that may be payable to them for preparing for the Arbitration proceedings.
The letter provided Mr. Kanoon with a Peremptory Attendance Notice, setting a date of June 17, 2015 at 11:00 a.m., to hear the above issues in dispute; information regarding the proceedings; recovery of legal expenses; and the adjournment policy. The letter also advised him that should he not contact our office or participate in any further proceedings, I would dismiss his application and consider Certas’ request for expenses.
Removal from the Record
As of July 7, 2015, I have been unable to contact Mr. Kanoon, he has yet to contact his legal representative or ADR Chambers, and has not participated in any of the Arbitration proceedings. Mr. Kelly properly served a written motion on June 17, 2015. Certas does not oppose the motion. I have therefore granted Mr. Kelly’s request to be removed from the record.
Dismissal
Rule 68 of the Dispute Resolution Practice Code (“DRPC”) permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith providing written notice has been given to the parties of the intention to dismiss the proceedings.
I am satisfied that Mr. Kanoon was given notice of the proceedings as required by Rule 68(2) of the DRPC at his last known address contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC. (Submitted in the written motion and affidavit from Mr. Kelly and provided via registered letter from ADR Chambers dated March 19, 2015).
I am satisfied that Mr. Kanoon was given the opportunity to make submissions should he wish to object to the dismissal as required by Rule 68(3) of the DRPC.
I am also satisfied that there is no prejudice to Mr. Kanoon in dismissing his Application for Arbitration. Therefore, Mr. Kanoon’s Application for Arbitration is dismissed without a Hearing under Rule 68(1) of the DRPC on the basis that the application was frivolous, vexatious or was commenced in bad faith as he failed to participate in the proceedings.
EXPENSES:
On March 19, 2015, Certas informed they would advise with respect to their position on expenses at a later date. On June 17, 2015, Certas advised they are seeking their expenses for preparation for the Arbitration proceedings. On July 7, 2015, Certas submitted that they are seeking a fixed, nominal and customary cost amount of $500.00. After considering Rules 75.2 and 78(1) of the DRPC, Certas is entitled to their expenses with respect to this Application for Arbitration in the amount of $500.00, payable forthwith.
July 13, 2015
Karina Kowal Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 149
FSCO A14-001947
BETWEEN:
KANOON KANOON
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:
Michael Kelly Law Office is removed from the record as Mr. Kanoon’s legal representative.