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

Neutral Citation: 2015 ONFSCDRS 216

FSCO A14-001708

BETWEEN:

ALIN SHAMON

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before: Arbitrator Janet Davies

Heard: By written submissions due July 31, 2015

Appearances: Mr. Alin Shamon did not participate Ms. Jennifer McGlashan participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Alin Shamon, was injured in a motor vehicle accident on September 25, 2012 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their dispute through mediation, and the Applicant, 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 Mr. Shamon’s Application for Arbitration be dismissed?
Is Wawanesa entitled to its expenses in preparing for and attending the Arbitration proceedings from Mr. Shamon, and if so, in what amount?

Result:

Mr. Shamon’s Application for Arbitration is dismissed.
Wawanesa is entitled to its expenses in preparing for and attending the Arbitration proceedings in the amount of $1,600.00, payable forthwith.

EVIDENCE AND ANALYSIS:

Position of the Insurer

The Insurer submits that the application should be dismissed, with costs, as Mr. Shamon failed to provide the necessary documentation to allow the Insurer to properly assess his claim for benefits. The documentation to be produced by Mr. Shamon was set out by way of an Order. Mr. Shamon further failed to attend the mandatory telephone Pre-Hearing that was scheduled for May 29, 2015. Mr. Shamon’s uncooperativeness led to his representatives removing themselves as lawyers of record, which added to the duration of the herein proceedings.

The Insurer submits that Mr. Shamon should have withdrawn his claim for Income Replacement Benefits as he clearly had no intention of producing his income tax records as he never filed/paid taxes.

In summary, the Insurer further submits that Mr. Shamon was deceptive at the Pre-Hearings and his claim is frivolous, vexatious and without merit.

Position of the Applicant

There was no response from the Applicant, Mr. Shamon.

Chronology

A Pre-Hearing discussion took place on April 6, 2015 and was resumed on May 19, 2015, to allow time for Mr. Shamon to file his documentation to support his claim for an Income Replacement Benefit. At the resumption of the Pre-Hearing on May 19, 2015, Mr. Shamon had still not submitted his documents. He was advised by the Arbitrator, his legal representative and the Insurer’s Counsel that he must produce certain documents in order to advance his claim. The Arbitrator issued an Order for productions due on May 29, 2015 and a resumption of the Pre-Hearing was set for that date. Mr. Shamon’s legal representative advised her client that should he not comply with the Order of the Arbitrator, she would file a motion to be removed from the record, and Counsel for the Insurer advised him that she would file a motion to have his application dismissed with costs consequences.

A further resumption of the Pre-Hearing took place on May 29, 2015, in which Mr. Shamon did not participate nor did he comply with the Order for productions. His legal representative filed a written motion to be removed from the record. Having satisfied herself that proper notices of the motion were served on all parties as required by Rule 9.7 of the Dispute Resolution Practice Code (“the DRPC”), the Arbitrator granted the request and removed Mr. Shamon’s legal representative from the record.

On June 25, 2015, a letter was sent to Mr. Shamon advising him that he was now self-represented with respect to his Application for Arbitration and the Insurer’s motion to dismiss his application with cost consequences. Mr. Shamon was advised that should he wish to proceed with his Application for Arbitration, the Insurer’s motion would be converted to a resumption of the Pre-Hearing and he was to provide our office with his contact information or that of his new representative no later than July 24, 2015. Mr. Shamon was also advised that should he not contact our office by that date or if he failed to participate in any further Arbitration proceedings, it would be assumed he had chosen not to move forward and would dismiss his Application for Arbitration and consider cost consequences for prolonging the process unnecessarily. Mr. Shamon did not contact our office, as directed.

Decision

Rule 68 of the DRPC permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith providing written notice has been given to the parties of the intention to dismiss the proceedings.

I am satisfied that Mr. Shamon was given notice of the proceedings as required by Rule 68 (2) of the DRPC at his last known address contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Mr. Shamon was given an opportunity to make submissions should he wish to object to the dismissal as required by Rule 68(3) of the DRPC.

I am also satisfied that there is no undue prejudice to Mr. Shamon in dismissing his Application for Arbitration. Therefore, Mr. Shamon’s Application for Arbitration is dismissed without a Hearing under Rule 68(1) of the DRPC on the basis that the application was frivolous, vexatious or was commenced in bad faith as he failed to participate wholly in the proceedings.

EXPENSES:

Wawanesa submitted a Cost Outline of their expenses for $11,450.89 ($7,989.39 in fees, $367.50 for appearances, $2,007.60 in disbursements plus HST) partial indemnity. In determining the quantum of the award, I have taken into consideration Mr. Shamon’s participation in two of the three Pre-Hearing discussions. Therefore, I have considered the Insurer’s fees as submitted, from May 19, 2015, in the amount of $1,415.63 plus $184.03 in HST for a total of $1,600.00 (rounded). As the rate claimed is in keeping with Rules 75.2 and 78.1 of the DRPC, the amount of $1,600.00 (all inclusive) is awarded to Wawanesa as Mr. Shamon unnecessarily prolonged the Arbitration process. The amount is payable forthwith.

October 26, 2015

Janet Davies Arbitrator

Date