Kyle Nicholson v. Certas Direct Insurance Company, 2015 ONFSCDRS 162

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 162

FSCO A12-004383

BETWEEN:

KYLE NICHOLSON

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Eban Bayefsky

Heard: July 29, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Neither Mr. Nicholson nor anyone on his behalf attended

John P. Desjardins for Certas Direct Insurance Company

Issues:

The Applicant, Kyle Nicholson, alleged that he was involved in a motor vehicle accident on August 21, 2010. He applied for statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ Certas denied Mr. Nicholson’s claim, in part on the basis that Mr. Nicholson had participated in a “staged” accident, and was, therefore, not involved in an “accident” within the meaning of section 2(1) of the Schedule. The parties were unable to resolve their dispute through mediation, and Mr. Nicholson applied for arbitration at the Financial Services Commission of Ontario under the *Insurance Act*, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Was Mr. Nicholson involved in an “accident” within the meaning of section 2(1) of the Schedule?
Is either party entitled to their expenses of the arbitration?

Result:

The arbitration is dismissed.
Mr. Nicholson shall pay to Certas Direct Insurance Company its expenses of the arbitration, in an amount to be agreed or assessed.

EVIDENCE AND ANALYSIS:

Mr. Nicholson claimed statutory accident benefits on the basis that he had been involved in an “accident” within the meaning of section 2(1) of the Schedule. Certas maintained that Mr. Nicholson had participated in a “staged” accident, and was, therefore, not involved in an “accident” as claimed. After various pre-hearing conferences, motions and adjournments, a hearing was scheduled to commence on July 29, 2015 to address the preliminary issue of whether Mr. Nicholson had been involved in an “accident” within the meaning of section 2(1) of the Schedule.

Neither Mr. Nicholson nor anyone on his behalf attended at the preliminary issue hearing. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, an arbitrator may proceed in a party’s absence where notice of a hearing has been sent to the party and the party does not attend at the hearing. I was satisfied that Mr. Nicholson and his representative of record, Mr. Gino Isabella, had been properly notified of the preliminary issue hearing. I proceeded in Mr. Nicholson’s absence.

Based on Mr. Nicholson’s absence, counsel for Certas sought a dismissal of the arbitration with costs payable to Certas, in an amount to be agreed or assessed.

In the absence of any evidence from Mr. Nicholson as to the happening of an accident, and in all of the circumstances of the case, I dismissed the arbitration, and ordered that Mr. Nicholson pay to Certas its expenses of the arbitration, in an amount to be agreed or assessed.

July 30, 2015

Eban Bayefsky

Arbitrator

Date