Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 181
FSCO A14-006344
BETWEEN:
LUIS ALMEIDA
Applicant
and
NORTHBRIDGE GENERAL INSURANCE CORPORATION
Insurer
REASONS FOR DECISION
Before: Arbitrator Deborah Anschell
Heard: By teleconference on July 24, 2015
Appearances: No one participated for Mr. Almeida
Ms. Kerri P. Knudsen participated for Northbridge General Insurance Corporation
Issues:
The Applicant, Mr. Luis Almeida, was injured in a motor vehicle accident on September 15, 2007. He applied for statutory accident benefits from Northbridge General Insurance Corporation (“Northbridge”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Almeida 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 Preliminary Hearing are:
- Should Mr. Luis Almeida’s Application for Arbitration be dismissed?
Result:
- Mr. Luis Almeida’s Application for Arbitration is dismissed.
EVIDENCE AND ANALYSIS:
On June 9, 2015, Mr. Alden Dychtenberg, the Applicant’s previous representative, brought a motion to be removed as the counsel of record, because he was unable to obtain instructions from the Applicant.
Ms. Knudsen did not oppose the Motion.
Rule 9.7 of the Dispute Resolution Practice Code (“the DRPC”) states:
A representative who seeks to withdraw from a proceeding must:
(a) provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding;
(b) provide the last known address, telephone number and (if any) e-mail address of the represented party.
On the evidence presented, I was satisfied that Mr. Dychtenberg had lost communication with the Applicant, and that he complied with Rule 9.7 of the DRPC. Therefore, Mr. Dychtenberg’s request to be removed as counsel of record for Mr. Almeida in this Arbitration proceeding was granted.
Dismissal of the Claim
The Applicant submitted an Application for Arbitration on August 5, 2014. The disputed issues were mediated from March 17, 2014 to July 9, 2014. A Pre-Hearing discussion in this case was held before me on June 9, 2015 by way of teleconference. Mr. Almeida did not attend. At that Pre-Hearing, I set a new date for a Preliminary Issue Hearing for July 24, 2015. I directed that the matter would proceed as a Pre-Hearing if Mr. Almeida attended. If he did not attend, this matter would proceed as a Preliminary Issue Hearing at which time Northbridge would be requesting a dismissal of the Arbitration.
A letter, dated June 9, 2015, was sent to Mr. Almeida. In that letter, I informed Mr. Almeida that a Preliminary Issue Hearing was scheduled for July 24, 2015 by way of teleconference.
Pursuant to Rules 68.1 and 68.2 of the DRPC, I notified Mr. Almeida that his attendance at the above mentioned Preliminary Issue Hearing was mandatory, and that the Application for Arbitration could be dismissed if he did not attend.
On July 24, 2015, the Preliminary Issue Hearing was held.
Ms. Knudsen appeared by telephone, and requested the dismissal of Mr. Almeida’s Application for Arbitration.
I am satisfied that the notices to Mr. Almeida complied with the requirements of Rule 9.1(c) of the DRPC and section 6 of the Statutory Power and Procedures Act. All correspondence, including the notices of the Preliminary Issue Hearing, was sent to Mr. Almeida’s last known address, as noted in our records. Furthermore, the June 9, 2015 correspondence was sent to Mr. Almeida’s father, Mr. Carlos Almeida’s last known address as well. Notwithstanding the notices and letters, the Applicant did not attend the Preliminary Issue Hearing or provide submissions in writing.
Rule 37.9 of the DRPC states:
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.
Pursuant to Rule 37.9 of the DRPC, the Preliminary Issue Hearing proceeded in Mr. Almeida’s absence. Mr. Almeida has the onus of proof to establish his entitlement to his claims. He did not attend either of the two Pre-Hearings; therefore, I conclude that he has no interest in pursuing his claim and that he abandoned the present Arbitration proceeding.
All of the above mentioned reasons suffice to dismiss Mr. Almeida’s Application for Arbitration.
EXPENSES:
I am not making any order with respect to Northbridge’s expenses.
September 2, 2015
Deborah Anschell Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 181
FSCO A14-006344
BETWEEN:
LUIS ALMEIDA
Applicant
and
NORTHBRIDGE GENERAL INSURANCE CORPORATION
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Luis Almeida’s Application for Arbitration is dismissed.
September 2, 2015
Deborah Anschell Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.