Oniel Simpson v. Personal Insurance Company of Canada, 2015 ONFSCDRS 231

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 231

FSCO A14-003698

BETWEEN:

ONIEL SIMPSON

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before:

Arbitrator Janet Davies

Heard:

By teleconference on August 27, 2015

Appearances:

Mr. Oniel Simpson did not attend

Ms. Mireille Dahab for Mr. Oniel Simpson

Mr. Christian Farahat for Personal Insurance Company of Canada

Issues:

The Applicant, Mr. Oniel Simpson, was injured in a motor vehicle accident on March 16, 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 Mr. Simpson, 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 the Law Offices of Meleni David be removed from the record as Mr. Simpson’s legal counsel?
Should Mr. Simpson’s Application for Arbitration be dismissed?
Is Personal entitled to their expenses in defending the Applicant for Arbitration?

Result:

The Law Offices of Meleni David is removed from the record as Mr. Simpson’s legal counsel.
Mr. Simpson’s Application for Arbitration is dismissed.
Personal is entitled to their expenses in the amount of $500.00 in having to defend the Application for Arbitration. This amount is payable forthwith.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was scheduled for July 15, 2015 at 3:00 p.m., at the offices of ADR Chambers, in which Mr. Simpson did not attend nor were we able to contact him by telephone at his last known number.

On June 19, 2015, I received a motion from the Law Offices of Meleni David to be removed from the record as Mr. Simpson’s legal counsel due to a break down in the solicitor/client relationship as they were unable to reach him to receive instructions.

On June 24, 2015, I received a letter from the Insurer advising that should Mr. Simpson not attend the Pre-Hearing they would request an order dismissing his application with costs.

On June 25, 2015, I received a letter from the Law Offices of Meleni David objecting to the Insurer’s request for the order dismissing the application on July 15, 2015 should Mr. Simpson not attend.

As the Applicant did not appear and we were unable to reach him by telephone on July 15, 2015, a date of August 27, 2015 at 11:00 a.m. was set to hear the above noted motions.

On July 16, 2015, I sent a letter to Mr. Simpson advising him of the motions and asked him to call our office with his contact information or that of his new representative. My letter set out that should he wish to participate, the motion would be converted to a Pre-Hearing. My letter also set out the information under Rule 68 of the Dispute Resolution Practice Code (“the DRPC”) for dismissing an application as well as information on the recovery of expenses. He was further advised that should he fail to participate that I would proceed with the Arbitration process in his absence. The Applicant did not contact our office nor were we able to reach him by telephone.

Decision

As Mr. Simpson has not contacted his legal counsel to provide instructions nor has he participated in any of the Arbitration proceedings, I have granted the Law Office of Meleni David’s request to be removed from the record as his legal counsel.

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. Simpson was given notice of the motions 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. Simpson was given an opportunity to make submissions should he wish to object to the dismissal of his application as required by Rule 68(3) of the DRPC.

I am also satisfied that there is no prejudice to Mr. Simpson in dismissing his Application for Arbitration. Therefore, Mr. Simpson’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 in any of the Arbitration proceedings.

EXPENSES:

Personal requested expenses in the amount of $1,500.00 for having to defend the Application for Arbitration. As this application was related to another case and the Insurer was advised by the Law Offices of Meleni David well in advance of the Pre-Hearing of their motion to be removed from the record, I am granting Personal $500.00 in “throw away” expenses. In doing so, I have considered Rules 75.2 and 78(1) of the DRPC and find that Mr. Simpson has unnecessarily prolonged the Arbitration process. The amount is payable forthwith.

November 4, 2015

Janet Davies

Arbitrator

Date