Neutral Citation: 2015 ONFSCDRS 250 FSCO A13-015351

BETWEEN:

ABDOOL SAHEED Applicant

and

UNIFUND ASSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Thérèse Reilly Heard: By telephone conference call on September 28, 2015

Appearances: Mr. Abdool Saheed did not participate Ms. Barbara Opalinski participated for Mr. Abdool Saheed Ms. Angela Romano participated for Unifund Assurance Company

Issues:

The Applicant, Mr. Abdool Saheed, was injured in a motor vehicle accident on October 15, 2010 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Abdool Saheed, 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 Tkatch & Associates be removed as representative of record for Mr. Saheed?
Should Mr. Saheed’s Application for Arbitration be dismissed with or without costs?

Result:

Thatch & Associates is removed as representative of record for Mr. Saheed.
Mr. Saheed’s Application for Arbitration is dismissed with costs in the amount of $950.00, inclusive of all costs, disbursements and taxes, payable by the Applicant.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion was held on March 10, 2015. The Applicant failed to attend the Pre-Hearing discussion on that day. A resumption of the Pre-Hearing was scheduled for June 19, 2015 to be held at 12:00 p.m. I advised the Applicant by letter, dated March 10, 2015, that his attendance at the June 19, 2015 resumption of the Pre-Hearing was mandatory. The resumption was subsequently rescheduled to be heard at 11:00 a.m. on August 10, 2015. Notice of the Pre-Hearing was provided to the parties by ADR Chambers.

The Applicant’s representative advised at the resumption of the Pre-Hearing on August 10, 2015 that she had been unable to contact the Applicant despite her diligent efforts. The representative for the Applicant advised that she had made several attempts to contact the Applicant to no avail. The representative for the Applicant also forwarded a copy of the letters, dated March 11, 2015 and March 17, 2015, addressed to the Applicant advising that he must attend the next scheduled Pre-Hearing discussion or the Application for Arbitration could be dismissed. He was advised to contact his representative and if he did not do so by April 30, 2015, the representative would take steps to remove herself from the record. A similar letter was sent on June 17, 2015, requesting that he contact his representative and failing which they would be removing themselves as the representative of record.

To address the request to be removed from the record and the request for a dismissal of the Application for Arbitration, I notified the parties at the resumption of the Pre-Hearing on August 10, 2015 that a Motion would be scheduled for 2:00 p.m. on September 28, 2015. By letter to the Applicant, dated August 11, 2015, and sent via registered mail, I advised the Applicant of the Motion and he was to contact me by no later than September 28, 2015 at 2:00 p.m. to outline how he wished to proceed with his Application for Arbitration. If no response was received from him by September 28, 2015, I would assume that he did not have any interest in proceeding with the Application for Arbitration. The Applicant was advised further that attendance at the September 28, 2015 Motion was mandatory. Further, if he failed to attend, his Application for Arbitration could be dismissed with or without costs under Rule 68 of the Dispute Resolution Practice Code (“the Code”), which 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.

The Insurer by letter, dated August 12, 2015, advised the Applicant that it would be seeking a dismissal of the Application for Arbitration at the Motion on September 28, 2015. The Insurer by letter, dated August 24, 2015, advised the Applicant that it would be seeking a dismissal of the Application for Arbitration with costs payable by the Applicant in the amount of $3,500.00.

Request to be Removed from the Record

On September 28, 2015 at 2:00 p.m., the Motion proceeded by telephone conference call as scheduled. Ms. Opalinski participated as did Ms. Romano. The Applicant did not attend. I did not receive notice from the Applicant prior to the September 28, 2015 proceeding that he wished to attend the resumption or obtain new representation. The representative for the Applicant brought the motion to be removed from the record. The Insurer did not oppose the Motion.

Based on the evidence presented, I am satisfied that notice had been provided under Rule 9.7 of the Code and that there had been a material breakdown in the solicitor client relationship. I ordered that the representative be removed from the record.

Result:

Tkatch & Associates is removed as representative of record for Mr. Saheed.

Order for Dismissal

The Insurer then brought a Motion for a dismissal of the Application for Arbitration under Rule 68 of the Code with costs.

I am satisfied that all correspondence, including the Notices of Hearing, was sent to the address of the Applicant as shown in the Commission Records. I am satisfied that the Applicant had notice of the Motion and the proceedings and that all the notices provided complied with the requirements set out in Rule 9.1(c) and 9.7 of the Code and s. 7(1) of the Statutory Powers Procedures Act. I am satisfied the Applicant had ample notice and opportunity to obtain representation and chose to not do so. In reliance on the notices provided and failure of the Applicant to communicate with his representative, and in reliance on Rules 68.1 and 68.2 of the Code, the Application for Arbitration is dismissed.

Result:

Mr. Saheed’s Application for Arbitration is dismissed with costs.

EXPENSES:

The Insurer advised at the September 28, 2015 Motion that costs now totaled $4,155.00. The Insurer did not submit a Bill of Costs. The Insurer advised that the $4,155.00 includes the $3,000 filing fee. No provision was outlined under the Expense Regulation, R.R.O. 1990, Regulation 664 that would allow recovery of the $3,000.00 filing fee and as such I am not allowing any costs for this amount. Based on the attendances by the Insurer at a Pre-Hearing discussion, a resumption of the Pre-Hearing by telephone, the Motion by telephone, and some preparation costs of the Arbitration and this Motion, I am prepared to order costs in the amount of $ 950.00, inclusive of all costs, disbursements and taxes, payable by the Applicant.

November 23, 2015

Thérèse Reilly Arbitrator

Date

Financial Services Commission of Ontario