Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 251

FSCO A14-000057

BETWEEN:

YAN TUNG KWAN

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

Before: Arbitrator Alan G. Smith

Heard: By teleconference on October 1, 2015

Appearances: Ms. Yan Tung Kwan did not participate Ms. Jane Cvijan participated for Dominion of Canada General Insurance Company

Issue:

The Applicant, Ms. Yan Tung Kwan, was injured in a motor vehicle accident on February 21, 2011 and sought accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Kwan, 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 issue in this Motion is:

Should the Applicant’s Application for Arbitration be dismissed?

Result:

The Applicant’s Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

Dismissal of the Application for Arbitration

A Pre-Hearing discussion in this case was held on July 23, 2015 at 9:00 a.m., at the offices of the ADR Chambers. Ms. Cvijan, Legal Counsel, represented Dominion. Ms. Lynn Shuryn participated on behalf of Dominion. Ms. Linka, Legal Counsel, represented Ms. Kwan. Ms. Kwan did not attend, despite being advised by her legal representatives that she was required to participate in the Pre-Hearing. Nor did the Applicant contact her counsel or ADR Chambers with regard to her absence.

During the course of the Pre-Hearing conference, Ms. Linka requested that Yeung & Associates be removed as representative of record because they had been unable to contact Ms. Kwan since September 2014. Ms. Cvijan consented to this request. Also during the course of the Pre-Hearing conference, Ms. Cvijan requested that the Application for Arbitration be dismissed if Ms. Kwan did not attend a rescheduled Pre-Hearing conference or otherwise communicate her desire to continue the Application for Arbitration with ADR Chambers.

In a Pre-Hearing letter, dated July 23, 2015, on the consent of both parties, I removed Yeung & Associates as representatives of record. I also advised the Applicant in that Pre-Hearing letter that the Arbitration Pre-Hearing in this case would reconvene on October 1, 2015 at 12:00 p.m., at the offices of the ADR Chambers. I further advised Ms. Kwan that her attendance at the Pre-Hearing conference on October 1, 2015 was mandatory if she wanted to proceed with her Application for Arbitration. The Applicant was also warned in the Pre-Hearing letter that if she did not attend the Application for Arbitration might be dismissed pursuant to Rules 68.1 and 68.2 of the Dispute Resolution Practice Code (“the Code”). The letter also informed Ms. Kwan that should she wish to object to the dismissal of her Application or seek to make other written submissions, Rule 68.3 of the Code requires that a party must provide the grounds for the objection or set out any other issues or concerns in writing, serve the materials on the other parties, and file those materials within 20 days of the date of the Pre-Hearing letter.

The July 23, 2015 Pre-Hearing letter was sent by registered and regular mail to the Applicant’s last known address.

The resumption of the Pre-Hearing took place on October 1, 2015 at 12:00 p.m. No submissions were received by ADR Chambers from Ms. Kwan or Dominion. Ms. Cvijan advised in advance of the resumed Pre-Hearing that she could be reached by telephone if the Application was not dismissed. Ms. Kwan was not in attendance at 12:00 p.m. and had still not appeared or otherwise communicated with me or the ADR Chambers at 3:00 p.m. that day.

I am satisfied that the Applicant had been notified of all proceedings to date and was aware that she was required to participate in the two Pre-Hearing discussions. I am also satisfied that the Applicant was aware that her failure to participate would result in Dominion requesting the dismissal of her Application for Arbitration.

The Applicant has the onus of proof to establish her entitlement to accident benefits under her Application for Arbitration and her failure to attend and participate accordingly means that she has failed to meet this onus. I find that given Ms. Kwan’s failure to participate in this Hearing process and the resulting impossibility of success of her Application for Arbitration, Dominion is entitled to an order dismissing the accident benefit claims filed by Ms. Kwan.

I rely on Rule 68 of the Code 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:

The Insurer made no request for expenses, therefore I will make no order in that regard.

November 23, 2015

Alan G. Smith Arbitrator

Date