Chanel McDonald v. Personal Insurance Company of Canada, 2015 ONFSCDRS 217

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

Neutral Citation: 2015 ONFSCDRS 217

FSCO A14-003766

BETWEEN:

CHANEL MCDONALD

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Janet Davies

Heard: By telephone conference call on June 17, 2015 and July 30, 2015

Appearances: No one participated for Ms. Chanel McDonald

Ms. Rachelle Villanueva participated for Personal Insurance Company of Canada

Issues:

The Applicant, Ms. Chanel McDonald, was injured in a motor vehicle accident on December 13, 2011 and sought accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. McDonald, 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 Preliminary Issue Hearing are:

Should Ms. McDonald’s Application for Arbitration be dismissed?
Is Personal entitled to its expenses for these Arbitration proceedings?

Result:

Ms. McDonald’s Application for Arbitration is dismissed.
Personal Insurance Company of Canada is entitled to its expenses in the amount of $1,500.00 (inclusive of HST), payable forthwith.

EVIDENCE AND ANALYSIS:

Chronology

On April 29, 2014, the Financial Services Commission of Ontario received an Application for Arbitration filed on behalf of Ms. McDonald.

On April 22, 2015, Grillo Barristers Personal Injury Lawyers filed a request to be let off the record due to a breakdown in the client solicitor relationship in that they have been unable to reach their client despite numerous attempts. On April 27, 2015, Arbitrator Gueller granted their request and advised Ms. McDonald, by registered letter, that she was now self-represented and of a Pre-Hearing discussion date of May 11, 2015 at 12:00 p.m. by telephone conference call. Ms. McDonald was advised to call our office with her contact information to enable her to participate.

The Pre-Hearing discussion took place on May 11, 2015, in which Ms. McDonald did not participate nor were we able to contact her by telephone. In response, counsel for the Insurer brought a motion to dismiss the application on a with costs basis. On May 11, 2015, another registered letter was sent to Ms. McDonald at her last known address advising her of the resumption of the Pre-Hearing and/or a motion to dismiss with costs which we scheduled for June 12, 2015 at 4:00 p.m. The letter advised her that should she wish to proceed with her application she was to call our office no later than June 12, 2015 at 4:00 p.m. with her contact information. The letter also stated that should she not participate that we would proceed in her absence and dismiss her application.

Ms. McDonald did not contact our office as requested and the matter was deferred to June 17, 2015 and again to July 30, 2015 at 12:00 p.m. Further attempts to contact Ms. McDonald proved unsuccessful.

Decision

Ms. McDonald has not participated in any of the Arbitration proceedings and appears to have abandoned her application.

Rule 68 of the Dispute Resolution Practice Code (“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 Ms. McDonald was given notice of the Pre-Hearing discussion and motion as required by Rule 68(2) of the DRPC at her 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 Ms. McDonald was given an opportunity to make submissions should she wish to object to the dismissal as required by Rule 68(3) of the DRPC.

Therefore, Ms. McDonald’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 she failed to participate in the proceedings

EXPENSES:

The Insurer is claiming expenses in the amount of $6,657.81 for the preparation of the Arbitration proceedings.

Of the amount claimed for disbursements, $3,000 represents Personal’s filing fee. This disbursement is not recoverable under the Expense Regulation in this circumstance. While the filing fee may be awarded where an Applicant has refused or failed to submit to an Insurer’s Examination, or refused or failed to provide material required for an Insurer’s Examination, there is no evidence that those circumstances apply here.

In determining the amount of the expenses, I have considered Rules 75 and 78 of the DRPC and find that Ms. McDonald caused expenses to be incurred unnecessarily by Personal in having to prepare a defence to her Application for Arbitration. As this was not a complicated matter, albeit time consuming, I have awarded expenses in the amount of $1,500.00 (inclusive of HST), in “throw away costs”, payable forthwith.

October 26, 2015

Janet Davies Arbitrator

Date