Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 179
FSCO A14-001922
BETWEEN:
BRITNEY MILLER
Applicant
and
INTACT INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Marshall Schnapp
Heard: May 7, 2015 at ADR Chambers and by written submissions received on June 19, 2015
Appearances: Mr. Ovidiu Klein for Ms. Britney Miller Ms. Alana Daley for Intact Insurance Company
Issues:
The Applicant, Ms. Miller, was injured in a motor vehicle accident on August 8, 2011 and sought accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Miller, through her 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 Grillo Barristers Professional Corporation be permitted to withdraw from this proceeding as the Applicant’s legal representatives?
Should the Applicant’s Application for Arbitration be dismissed?
Is Intact entitled to their expenses in preparing for and attending the Arbitration proceedings from Ms. Miller and if so, in what amount?
Result:
Grillo Barristers Professional Corporation is permitted to withdraw from this proceeding as the Applicant’s legal representatives.
The Applicant’s Application for Arbitration is dismissed.
Intact is entitled to expenses in the amount of $500.00.
EVIDENCE AND ANALYSIS:
Motion for Grillo Barristers Professional Corporation to Withdraw as Applicant’s Representative
Based upon the material filed, I am satisfied that there has been a breakdown in the relationship between the Applicant and Grillo Barristers Professional Corporation. The motion material was served by Grillo Barristers Professional Corporation upon the Applicant by regular mail sent to her last known residential address on March 2, 2015 (and it is deemed to have been received by the Applicant on March 9, 2015).
The Applicant did not respond to this material and did not attend the resumption of the Pre-Hearing to respond to the motion. Counsel for Intact advised Intact is not taking a position with respect to the motion.
Based upon the material filed, and in the absence of any opposition, I grant this motion.
Dismissal of the Application for Arbitration
A Pre-Hearing discussion was held before me on March 2, 2015. Despite being advised by her legal representatives that she was required to participate in the Pre-Hearing, Ms. Miller did not attend.
By letter, dated March 13, 2015, I advised Ms. Miller that a resumption of the Pre-Hearing had been scheduled to proceed on May 7, 2015 at 2:00 p.m. I further advised Ms. Miller that her attendance at the Pre-Hearing was mandatory if she wanted to proceed with her Application for Arbitration and if she did not attend Intact would be bringing a motion to have her Application for Arbitration dismissed with costs.
I also wrote to Ms. Miller that should she object to a dismissal of her Application for Arbitration or want to make written submissions, in accordance with Rule 68.3 of the Dispute Resolution Practice Code, she may do so in witting, and serve the materials to Intact and file them within 20 days of March 13, 2015. No submissions were received by ADR Chambers from Ms. Miller.
The resumption of the Pre-Hearing took place on May 7, 2015 at 2:00 p.m. and Ms. Miller was not in attendance. The parties waited until 2:30 p.m.
I am satisfied that the Applicant had been notified of all proceedings to date and was aware that she was to participate in the two Pre-Hearing discussions. I am also satisfied that the Applicant was aware that her failure to participate would result in Intact bringing a motion to dismiss her Application for Arbitration.
The Applicant has the onus of proof to establish her entitlement to accident benefits under her Application for Arbitration and her failure to attend and participate accordingly means that she has failed to meet this onus. I find that given Ms. Miller’s failure to participate in this Hearing process and the resulting impossibility of success of her Application for Arbitration, Intact is entitled to an order dismissing the accident benefit claims filed by Ms. Miller.
I am relying on Rule 68 of the Dispute Resolution Practice Code which allows for the dismissal of a proceeding without Hearing and section 23 of the Statutory Powers Procedure Act,2 which grants adjudicators, including Arbitrators, a wide power, including dismissal, to control the process and prevent an abuse of that process.
Therefore, I find all of the above reasons are sufficient to dismiss the Application for Arbitration.
EXPENSES:
Intact is awarded expenses in the amount to $500.00 in having to prepare for and participate in the Arbitration proceedings. The amount is payable forthwith. In making this award, I have considered Rules 75.2 and 78(1) of the Dispute Resolution Practice Code and found that Ms. Miller had prolonged and hindered the Arbitration process.
September 1, 2015
Marshall Schnapp Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 179
FSCO A14-001922
BETWEEN:
BRITNEY MILLER
Applicant
and
INTACT 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:
Grillo Barristers Professional Corporation is removed from the record as Ms. Miller’s legal representative.
Ms. Miller’s Application for Arbitration is dismissed.
Intact is entitled to expenses in the amount of $500.00.
September 1, 2015
Marshall Schnapp Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- R.S.O. 1990, c. S. 22