Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 219
FSCO A14-007804
BETWEEN:
WILLIAM HOLLIHAN
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A MOTION
Before: Arbitrator Marshall Schnapp
Heard: By teleconference on August 14, 2015
Appearances: Mr. Daniel Diamond for Mr. William Hollihan
Ms. Katherine Waterston for Aviva Canada Inc.
Issues:
The Applicant, Mr. William Hollihan, was injured in a motor vehicle accident on April 28, 2013 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Hollihan, 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 Diamond & Diamond be permitted to withdraw from this proceeding as the Applicant’s legal representative?
Should the Applicant’s Application for Arbitration be dismissed?
Is Aviva entitled to its expenses in preparing for and attending the Arbitration proceedings from Mr. Hollihan and if so, in what amount?
Result:
Diamond & Diamond is permitted to withdraw from this proceeding as the Applicant’s legal representative.
The Applicant’s Application for Arbitration is dismissed.
Aviva is entitled to expenses in the amount of $1500.00.
EVIDENCE AND ANALYSIS:
Motion for Diamond & Diamond to withdraw as Applicant’s Representive
Based upon the material filed, I am satisfied that there has been a breakdown in the relationship between the Applicant and Diamond & Diamond. The motion material was served by Diamond & Diamond upon the Applicant by regular mail sent to his last known residential address on August 12, 2015 (and it is deemed to have been received by the Applicant on August 19, 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 Aviva advised Aviva 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 April 6, 2015. Despite being advised by his legal representatives that he was required to participate in the Pre-Hearing, Mr. Hollihan did not attend. A resumption of the Pre-Hearing was scheduled to take place on May 28, 2015 so Mr. Hollihan would be able to participate.
Again on May 28, 2015, Mr. Hollihan did not participate in the pre-hearing discussion despite being advised that his participation was mandatory.
By letter, dated May 29, 2015, I advised Mr. Hollihan that another resumption of the Pre-Hearing had now been scheduled to proceed on August 14, 2015, 2015 at 11:00 a.m. by telephone conference call. I further advised Mr. Hollihan that his participation during the Pre-Hearing was mandatory if he wanted to proceed with his Application for Arbitration and if he did not participate, Aviva would be bringing a Motion to have his Application for Arbitration dismissed with costs.
I also wrote to Mr. Hollihan that should he object to a dismissal of his Application for Arbitration or want to make written submissions, in accordance with Rule 68.3 of the Dispute Resolution Code (“the DRPC”), he may do so in witting, and serve the materials on Aviva and file them within 20 days of May 29, 2015. No submissions were received by ADR Chambers from Mr. Hollihan.
The resumption of the Pre-Hearing took place on August 14, 2015 at 11:00 a.m. and Mr. Hollihan was not in attendance on the telephone conference call and had not attempted to contact his former counsel.
I am satisfied that the Applicant had been notified of all proceedings to date and was aware that he was to participate in the Pre-Hearing and the Pre-Hearing Resumptions. I am also satisfied that the Applicant was aware that his failure to participate would result in Aviva bringing a motion to dismiss his Application for Arbitration.
The Applicant has the onus of proof to establish his entitlement to accident benefits under his Application for Arbitration and his failure to attend and participate accordingly means that he has failed to meet this onus. I find that given Mr. Hollihan’s failure to participate in this Hearing process and the resulting impossibility of success of his Application for Arbitration, Aviva is entitled to an order dismissing the accident benefit claims filed by Mr. Hollihan.
I am relying on Rule 68 of the DRPC which allows for the dismissal of a proceeding without a 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:
Counsel for Aviva filed a Bill of Costs indicating that almost 30 hours of time was spent on this matter by legal counsel.
Aviva is awarded expenses in the amount to $1,500.00 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 DRPC and found that Mr. Hollihan had prolonged and hindered the Arbitration process.
October 26, 2015
Marshall Schnapp
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 219
FSCO A14-007804
BETWEEN:
WILLIAM HOLLIHAN
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Diamond & Diamond are removed from the record as Mr. Hollihan’s legal representative.
Mr. Hollihan’s Application for Arbitration is dismissed.
Aviva is entitled to expenses in the amount of $1,500.00.
October 26, 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. 23.