King Realuyo v. Personal Insurance Company of Canada, 2015 ONFSCDRS 240

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 240

FSCO A14-004483

BETWEEN:

KING REALUYO

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator H. Michael Kelly, Q.C.

Heard: By teleconference on July 28, 2015 and August 28, 2015 and written submissions due September 10, 2015

Appearances: Mr. King Realuyo did not participate

Mr. Amit Gogna participated for Personal Insurance Company of Canada

Issues:

The Applicant, Mr. King Realuyo, was injured in a motor vehicle accident on December 10, 2012 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. Realuyo, 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 Preliminary Issue Hearing are:

Should Mr. Realuyo's Application for Arbitration be dismissed for failure to attend or participate in Pre-Hearings that took place on February 27, 2015 and June 30, 2015?
Should Personal receive an Order for costs against Mr. Realuyo?

Result:

Mr. King Realuyo's Application for Arbitration is hereby dismissed.
Personal shall be entitled to expenses of this Arbitration, payable by Mr. King Realuyo to Personal Insurance Company of Canada, in the amount of $750.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Mr. Realuyo applied for Arbitration on May 27, 2014 seeking Income Replacement Benefits at the rate of $400.00 per week from December 17, 2012 to date and ongoing (less post-accident income earned and available collateral benefits) and a Medical Benefit in the amount of $1,829.95 for therapy provided by Finch Health Centre Inc. as per Treatment Plan (OCF-18), dated June 26, 2013.

A Pre-Hearing was held on February 27, 2015, in person, at ADR Chambers. Mr. Realuyo did not attend. Mr. Lorne Climans, a lawyer of Bergel Magence LLP (“Bergel”), attended on behalf of Mr. Realuyo. Mr. Amit Gogna, lawyer, attended as legal representative of Personal. Ms. Grace Mancini participated on behalf of Personal. Mr. Climans advised that he was anticipating bringing a Motion to be removed as representative of Mr. Realuyo on the basis of a breakdown of the solicitor/client relationship, and I acceded to his request that the Motion for removal could be made in writing, and reminded Mr. Climans of the need to comply with Rule 9.7. Mr. Climans stated that he had sent a number of letters to Mr. Realuyo advising him of the Pre-Hearing appointment and of the need for Mr. Realuyo's attendance, and received no response from Mr. Realuyo, either with respect to his letters or to his efforts to effect telephone contact. Mr. Climans warned Mr. Realuyo in his correspondence that Mr. Realuyo's continuing failure to communicate with Bergel, and his failure to attend the Pre-Hearing would lead to Bergel's application to be removed as Mr. Realuyo's counsel. The Pre-Hearing was adjourned, on consent, to resume on June 30, 2015 at 12:00 p.m., in person, at ADR Chambers – 4101 Yonge Street, Toronto, Ontario.

A copy of my Pre-Hearing letter, dated March 1, 2015, confirming the scheduled resumption, and the need for Mr. Realuyo's participation with or without counsel, if he wished to protect his interests, was sent by ADR Chambers to Mr. Realuyo by mail to his address on file with ADR Chambers.

On March 16, 2015, Mr. Climans sent to ADR Chambers a Motion Record seeking an Order for removal of Mr. Climans and Bergel as legal representative of Mr. Realuyo in these proceedings. Attached to the Motion Record were Statements of Service, Form F, confirming service by ordinary mail of the Motion Record upon Mr. Realuyo and Mr. Gogna, on March 16, 2015. The Motion Record contained the affidavit of Monica Meza, legal assistant at Bergel, detailing unsuccessful efforts by that firm to contact, or get response from, Mr. Realuyo. The affidavit disclosed the following:

Twelve unanswered letters sent by Bergel to Mr. Realuyo between March 2014 and February 2015, enclosing draft authorizations and directions in favour of Personal, for signature and return. Signed authorizations and directions were needed in order to satisfy production obligations of the Applicant.
Four letters sent by Bergel to Mr. Realuyo, dated August 26, 2014; December 3, 2014; January 14, 2015; and February 11, 2015, sent to his last known address, advising him of the date, time, and place for the Pre- Hearing on February 27, 2015, and that he must attend (attached as Exhibit A to the affidavit of Monica Mesa).
Several unsuccessful attempts to make telephone contact with Mr. Realuyo between July 2014 and February 26, 2015, at his home telephone number and cell-phone number ( messages left on voicemail), including telephone contact with his wife, Lynne and sister-in-law, Lika, requesting return calls. On February 26, 2015, his sister-in-law undertook to remind Mr. Realuyo of the Pre-Hearing, scheduled for February 27, 2015.

On March 16, 2015, Bergel wrote to Mr. Realuyo, enclosing a copy of my Pre-Hearing letter of March 1, 2015, and confirming the date, time and location of the Pre-Hearing Resumption on June 30, 2015 (Exhibit B to the affidavit of Monica Mesa).

Mr. Realuyo made no response to Bergel's Motion for removal. On April 30, 2015, I made an Order removing Mr. Climans and Bergel as the representative of Mr. Realuyo in these proceedings. A copy of my letter, dated April 30, 2015, containing the said Order, and a reminder of the June 30, 2015 Pre-Hearing Resumption, was sent by mail to Mr. Realuyo. The letter advised Mr. Realuyo that if he intended to proceed with his Arbitration, he must attend the resumption, with or without counsel. But my letter also provided to him the option, that, if for valid reason, he was unable to attend in person on June 30, 2015, he could contact the Case Administrator to seek a change to teleconference. No such contact was made.

On June 30, 2015 at 12:00 p.m., the Pre-Hearing Resumption got underway. Mr. Gogna represented Personal and Ms. Grace Mancini participated on behalf of Personal. Mr. Realuyo did not attend. Consequently, during the Pre-Hearing, I placed a telephone call to Mr. Realuyo’s phone number, contained in ADR Chambers records, and spoke to his wife. She stated that Mr. Realuyo had just left (his home is in Hamilton), and she opined that he may not have been aware of the Pre-Hearing. I ordered a Preliminary Issue Hearing to take place on July 28, 2015, by teleconference at 2:00 p.m., to address Personal's intended Motion for dismissal of the Arbitration on the basis of Mr. Realuyo's failure to attend the Pre-Hearings on February 27, 2015 and June 30, 2015. My repeated efforts to contact Mr. Realuyo by telephone on July 1 and 2, 2015 were unsuccessful and my messages requesting a return call, left on his voicemail, did not provoke a response.

My Pre-Hearing letter, dated July 2, 2015, summarizing the discussion at the June 30, 2015 Pre-Hearing, and confirming the July 28, 2015 appointment and its purpose, was sent by ADR Chambers staff to Mr. Realuyo by registered and ordinary mail. ADR Chambers staff advised me that the registered mail was successfully delivered to Mr. Realuyo personally. It gave him notice that if he participated on July 28, 2015, or if he contacted ADR Chambers by telephone beforehand, the Preliminary Issue Hearing would be converted to a Pre-Hearing. I attempted to contact him by telephone on July 27, 2015, to ensure his participation, but was unsuccessful, and I received no callback, although same was requested.

ADR Chambers did not receive contact from Mr. Realuyo on or before July 28, 2015. Consequently, the Preliminary Issue Hearing proceeded by teleconference on July 28, 2015. However, I inadvertently did not commence the teleconference until approximately 2:40 p.m. Mr. Gogna participated, but I was unsuccessful in making telephone contact with Mr. Realuyo. Because, through my error, the Preliminary Issue Hearing did not commence on time, I decided to adjourn it to resume on August 28, 2015 at 9:00 a.m. by teleconference. My further attempts to contact Mr. Realuyo by telephone on July 29, 2015 were unsuccessful.

My letter to the parties, dated July 31, 2015, detailed the resumption particulars; the issues to be addressed; and my request that Mr. Realuyo immediately contact ADR Chambers to confirm his receipt of my letter and his intention to participate, and to provide the telephone number at which he could be contacted on August 28, 2015 at 9:00 a.m. The letter advised Mr. Realuyo that if, for valid reason, he were unable to participate on August 28, 2015, he must immediately contact ADR Chambers at the phone number or e-mail address provided, to request an alternative date. The letter was sent by regular and registered mail to Mr. Realuyo on August 11, 2015, and I received confirmation from ADR Chambers staff that the registered letter was successfully delivered. Importantly, that letter advised that the issue to be addressed was the potential dismissal, with costs, of the Application for Arbitration, based upon Mr. Realuyo's failure to attend the Pre-Hearings of February 27, 2015 and June 30, 2015, and that, if Mr. Realuyo failed to participate at the Preliminary Issue Hearing on August 28, 2015, the Arbitrator would proceed in his absence and decide the issue of dismissal with costs, without the benefit of his input. The letter also advised that if Mr. Realuyo participated in the Preliminary Issue Hearing, it would proceed instead as a Pre-Hearing. Neither ADR Chambers nor I received contact from Mr. Realuyo.

On August 28, 2015 at 9:00 a.m., the Preliminary Issue Hearing teleconference proceeded, to address Personal's application for an Order dismissing this Arbitration with costs. Mr. Gogna participated. The telephone calls to Mr. Realuyo went unanswered. I reached the conclusion that he was not interested in participating further in this Arbitration.

Decision

An Applicant has the onus of proving entitlement to statutory accident benefits. In addressing that onus, the Applicant has a duty to participate in the procedural requisites set out in the Dispute Resolution Practice Code (“the DRPC”) including, inter alia, cooperating with the requests of his counsel to provide signed authorizations for the provision of relevant records; responding to attempts of his counsel to maintain contact with /him; and attending at or participating in scheduled Pre-Hearings. By failing to do so, Mr. Realuyo has clearly demonstrated that he has no genuine interest in pursuing his Arbitration, and, therefore, no reasonable prospect of success. His conduct is an abuse of the process and has rendered his Arbitration proceeding "frivolous and vexatious" within the meaning of Section 4.6(1) of the Statutory Powers Procedure Act (“the SPPA”) and Rule 68.1 of the DRPC. As Personal's application was addressed at a Hearing, on notice to Mr. Realuyo, the provisions in Sections 4.6(1) of the SPPA and in Sections 68.1 of the DRPC do not have direct application, but are instructive by analogy.

Mr. Realuyo received notice of the Preliminary Issue Hearing, and had ample opportunity to make a response, in order to oppose Personal's application. He simply chose not to do so. The granting of a further adjournment of the Preliminary Issue Hearing to enhance the possibility of Mr. Realuyo's participation would not be reasonable, as it would simply increase the costs of the proceedings, without reasonable prospect of achieving that goal.

I have therefore decided that Mr. Realuyo's Arbitration is hereby dismissed, with costs to Personal.

EXPENSES:

Mr. Realuyo received notice that the costs issue would be addressed at the Preliminary Issue Hearing. I decided that Personal was entitled to costs. On September 10, 2015, I received from Mr. Gogna the “Costs Outline of the Insurer”, detailing the hours spent by Mr. Gogna, and by his law clerk. He sought partial indemnity costs in excess of $4,200.00, including HST. I have decided that the appropriate figure for costs of the Arbitration proceeding is in the amount of $750.00, inclusive of HST, payable by Mr. King Realuyo to the Personal Insurance Company of Canada.

November 11, 2015

H. Michael Kelly, Q.C.

Arbitrator

Date