Neutral Citation: 2015 ONFSCDRS 203 FSCO A14-001104

BETWEEN:

ABDUSALOM ABDUKADIROV Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Robert A. Creo Heard: By written submissions received June 12, 2015 and by teleconference on August 28, 2015 Appearances: Ms. Marie Makarova for Mr. Abdusalom Abdukadirov Ms. Catherine Korte for TD General Insurance Company

Issues:

The Applicant, Mr. Abdusalom Abdukadirov, was injured in a motor vehicle accident on March 9, 2010, and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Abdukadirov, through his 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 Ms. Olga Kanevesky and her law firm be permitted to withdraw as representatives for the Applicant?
Should the Application for Arbitration be dismissed?
Should TD be awarded costs with respect to the Arbitration?

Result:

The Motion for Ms. Olga Kanevesky and her law firm to withdraw from further representation is granted.
The Insurer’s Motion to Dismiss is granted.
The Insurer’s Motion for Costs is granted in the amount of $5,000.00 total, consisting of $3,000.00 in repayment of the Application for Arbitration filing fee and $2,000.00 for legal fees and disbursements, including HST.

EVIDENCE AND ANALYSIS:

TD denied various statutory accident benefits claimed. The Applicant retained Kanevsky Law Office (“Kanevsky”), and an Application for Arbitration was filed on October 24, 2013.

The two passengers in the vehicle with the Applicant similarly filed for Arbitration in respect of their respective disputes for accident benefits. For privacy purposes, their names have been omitted.

Due to contradictory circumstances surrounding the motor vehicle accident, Counsel for the Insurer served a notice of Examination Under Oath (“EUO”) on the Applicant. The EUO was scheduled to proceed on Thursday July 10, 2014. The Applicant did not attend and a Certificate of Non-Attendance was obtained. A second EUO was scheduled to proceed on November 21, 2014. The Applicant did not attend and a second Certificate of Non-Attendance was obtained.

The Applicant’s Representative has provided communications to the Applicant without response from the Applicant, including letters, dated November 20, 2014, June 3, 2015, and June 5, 2015, and other telephonic and email communication attempts. The Applicant’s Representative notified him of the request to withdraw further representation of his claim by letter, dated November 20, 2014. An Affidavit of Service of the Motion to Withdraw by Ms. Victoria Gorbenko, dated November 20, 2014, was submitted into the Record as evidence. The last known address for the Applicant is in Toronto. There is an active telephone number of the Applicant which was answered by a machine at the time of the Pre-Hearing on June 11, 2015 with a message left by the Arbitrator to contact ADR Chambers. A letter, dated June 11, 2015, from Kanevsky to the Applicant advised him of the Resumption of the Pre-Hearing scheduled for August 28, 2015 at 9:00 a.m. by teleconference. A letter, dated June 12, 2015, from the Arbitrator on ADR Chambers letterhead notified him of the Motions and the issues to be addressed at the Pre-Hearing. The letter included Arbitration Orders and Reasons for Decisions, dated June 11, 2015, indicating that his further non-participation would result in him having been found to have abandoned his claims, granting of the Motion to Withdraw of Record, and a potential assessment of costs against him payable to the Insurer. On August 28, 2015, the Arbitrator conducted the teleconference as a call-in process and kept the conference call open a full hour until 10:00 a.m. to provide more than sufficient time for the Applicant to participate.

Having been served with the Application for Arbitration by the Applicant, TD was bound to respond to the claim and to participate in the proceedings. TD was forced to retain counsel to prepare its response, attend the multiple Pre-Hearings that were arranged, as well as prepare and attend the multiple non-attended EUOs. On this basis and on the basis that this Arbitration process was instituted as an abuse of the dispute resolution process, the Insurer submits it is also entitled to an Order of its reasonable expenses incurred with respect to this matter. Section 282(11) of the Insurance Act grants an Arbitrator the discretion to order an Insured person to pay to the Insurer an amount to compensate for its reasonable expenses:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

The Insurer states that the Application for Arbitration filing fee of $3,000.00 was incurred on behalf of the Applicant. It is clear from the actions of the Applicant that this expense was incurred despite no intention to proceed with the Arbitration Hearing.

The Insurer also seeks reimbursement for the amounts paid to its counsel as a result of having to defend itself. This includes the cost of filing a Response, preparation and attendance at the multiple EUOs, and attending the various Pre-Hearings in this matter. Rule 78.1 of the Dispute Resolution Practice Code states that the hourly rate claimed by all professionals, including lawyers, law clerks, and students-at-law, must not exceed the tariff structure put in place by the Legal Aid Services Act, 1998. The Insurer incurred costs in excess of $10,000.00 at these rates. The Insurer seeks a reasonable expense order of only $2,000.00.

Arbitrators have awarded the Application for Arbitration filing fee in dismissing the Arbitrations commenced by the passengers of the Applicant’s vehicle.

It is unreasonable to expect Kanevsky to continue representation under these circumstances.

It is reasonable to declare that the Applicant has abandoned any and all claims.

The Arbitrator issues an Order dismissing the Applicant’s Application for Arbitration without a Hearing on the grounds that the Applicant has failed to participate in the proceedings he commenced; and it is reasonable to grant the Motion by the Insurer for costs against the Applicant. The Arbitrator issues an Order for the Insurer’s reasonable expenses, pursuant to s. 282(11) of the Insurance Act, and the Expense Regulation in the amount of:

$3,000.00 in repayment of the Application for Arbitration filing fee; and
$2,000.00 for legal fees and disbursements, including HST.

EXPENSES:

Costs are granted in the amount of $5,000.00 total, consisting of $3,000.00 in repayment of the Application for Arbitration filing fee and $2,000.00 for legal fees and disbursement, including HST.

October 5, 2015

Robert A. Creo Arbitrator

Date

Financial Services Commission of Ontario