Dorcas Appiah v. Jevco Insurance Company, 2015 ONFSCDRS 254

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 254

FSCO A14-004809

BETWEEN:

DORCAS APPIAH

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Harvey Savage

Heard: By teleconference on October 15, 2015

Appearances: Ms. Dorcas Appiah did not participate

Mr. Michael Jordan participated for Jevco Insurance Company

Issues:

The Applicant, Ms. Dorcas Appiah, was injured in a motor vehicle accident which occurred on July 19, 2010. She applied for accident benefits from Jevco Insurance Company (“Jevco”) payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Appiah 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 Hearing is:

Should the Applicant’s Application for Arbitration be dismissed?

Result:

The Applicant’s Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion was held before me on August 31, 2015. The Applicant did not appear. During the Pre-Hearing, Applicant’s Counsel sought to be removed from the record as a result of a complete breakdown in the relationship of solicitor and client. She outlined the numerous unsuccessful attempts in which she had attempted to contact the Applicant leading up to the Pre-Hearing.

Counsel for Jevco did not oppose Applicant’s Counsel’s motion to be removed as counsel of record, and Applicant’s Counsel was removed.

At the Pre-Hearing on August 31, 2015, I scheduled an Arbitration Hearing to take place on October 15, 2015, by teleconference. I noted in the Pre-Hearing letter, dated August 31, 2015, that in the event the Applicant failed to attend on the conference call, the Hearing might proceed in her absence. I further noted that in that eventuality her Application for Arbitration may be dismissed and Jevco’s expenses may be awarded against her.

The Applicant did not appear on the call on October 15, 2015 nor did she respond to my call to her phone number. The Hearing then proceeded in the absence of the Applicant as she had been cautioned of in the Pre-Hearing letter, dated May 31, 2015.

Mr. Jordan brought a motion to dismiss the Applicant’s Application for Arbitration.

I am satisfied that the Applicant had been notified of all proceedings to date and was either aware that she was to attend the Arbitration Hearing or wilfully placed herself in a position of not being aware by failing to notify either ADR Chambers or any counsel, including her previous counsel, that her address had changed. I am also satisfied that the Applicant was aware that her failure to attend might result in Jevco bringing a motion to dismiss the 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 accordingly means that she has failed to meet this onus.

Conclusion

Therefore, I find all of the above reasons are sufficient to dismiss the Application for Arbitration.

EXPENSES:

Jevco is awarded the amount of $1,000.00, inclusive of HST, in expenses.

November 23, 2015

Harvey Savage

Arbitrator

Date