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

Neutral Citation: 2015 ONFSCDRS 150

FSCO A14-003748

BETWEEN:

PENG KUAN CHUA

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

Before: Arbitrator Chuck Matheson

Heard: In person at ADR Chambers on May 29, 2015

Appearances: No one appeared for Mr. Peng Kuan Chua Mr. Harry Brown appeared for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mr. Peng Kuan Chua, was injured in a motor vehicle accident on September 19, 2009. He applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ Security National paid the maximum limit allowable under the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Chua 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 Motion is:

Should the Application for Arbitration be dismissed, forthwith?

Result:

The Application for Arbitration is dismissed, forthwith.

EVIDENCE AND ANALYSIS:

Background

The Applicant was involved in the motor vehicle accident on September 19, 2009 and was found to have suffered catastrophic injuries, very shortly after the accident. The Financial Services Commission of Ontario (“FSCO”) has related this file to that of Ms. Chua, by virtue that the two claims for benefits derive from the same accident and were heard by the same administrative arbitrator.

The parties have agreed that the Court has appointed Ms. Chua the litigation guardian of Mr. Chua’s affairs.

As a result of the accident, Ms. Chua proceeded to make her own claims for benefits under the Statutory Accident Benefits Schedule (“the Schedule”). She later started this proceeding for Mr. Chua, while at the same time, pursuing a statement of claim in the Superior Court of Ontario, for Mr. Chua.

Decision

In a series of Pre-Hearings, in which Ms. Chua had hired and fired several lawyers, coaches and family members as her legal and moral support team, I have heard from both Insurer’s counsel assigned to this file, of their frustration as they are unable to ascertain and pinpoint the actual issues in dispute in this Arbitration. It has become clear that the Insurer has paid numerous benefits and claims for Mr. Chua which have seemed to be overlapping the claims now made in Ms. Chua’s Application for Arbitration. To further complicate matters, Ms. Chua has filed a statement of claim on Mr. Chua’s behalf at the Superior Court of Ontario in a related tort matter to this accident benefits file. The issues stated in the statement of claim appear to be similar or a duplicate of the benefits being claimed in this arbitration.

Upon several occasions in the last year, Ms. Chua has appeared without notice to ADR Chambers, has demanded an audience with the Pre-Hearing Arbitrator, and has caused an interruption of other proceedings at the reception desk.

Ms. Chua has now missed the May 1, 2015 Pre-Hearing which was agreed to by her counsel of record at the time. Counsel on record also did not appear at this Pre-Hearing and has become unresponsive to ADR Chambers’ phone calls and letters.

I note that the Pre-Hearing Letter of May 1, 2015 had an error in it when it suggested that the Resumption of the Pre-Hearing would commence on June 29, 2015, when in fact it was set for May 29, 2015. To this point, the Insurer did have contact with Ms. Chua and conveyed the error which she acknowledged, and responded that she was in the process of retaining yet another law firm to represent both herself and her husband.

My Pre-Hearing Letter, dated May 1, 2015, did communicate the consequences of missing this Pre-Hearing and was delivered to the Applicant’s Litigation Guardian and her counsel on record via registered mail.

The Insurer argues, in part, that this Application for Arbitration should be dismissed for the following reasons:

The Applicant is not prejudiced with this application being dismissed as he is able to make any additions to his statement of claims;

a) The Applicant is able to appeal my decision within 30 days of receipt of my decision;

b) The Insurer continues to pay the maximum benefits allowable under the law;

c) The Insurer has paid all but $6,800.00 of Mr. Chua’s Medical/Rehabilitation Benefits;

It is unfair to the Insurer to continue in vain to attain any clarity to the issues in this Arbitration at great costs;
It is unfair to the Insurer to have two jurisdictions being applied to with duplication of the issues in both;
It is unfair to the Insurer that to simply constructively withdraw the application would allow the re-energization of the application with a very minimal cost to the Applicant which would lead to a possibility of more duplication of claims and processes.

The Dispute Resolution Practice Code (the “DRPC”), which speaks to the dismissal of an Arbitration without a Hearing, is as follows:

“Dismissal of proceeding without hearing

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and

(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.”

I am satisfied that the Applicant’s Litigation Guardian knew of this proceeding and the consequences for not appearing again at this proceeding.

I am satisfied that the actions of the Applicant’s Litigation Guardian and her numerous legal advisors over the past 12 months has given proper grounds for dismissal pursuant to Rule 68.1.

Therefore, for the reasons given above, I now find and order that this application be dismissed, forthwith.

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.

July 15, 2015

Chuck Matheson Arbitrator

Date