Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 256
FSCO A14-006385
BETWEEN:
NATHANIEL PINTO
Applicant
and
RBC GENERAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Thérèse Reilly
Heard: By telephone conference call on September 28, 2015
Appearances: Mr. Nathaniel Pinto did not participate Ms. Kameliya Stancheva participated for Mr. Nathaniel Pinto Mr. David Edwards participated for RBC General Insurance Company
Issues:
The Applicant, Mr. Nathaniel Pinto, was injured in a motor vehicle accident on January 21, 2014 and sought accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Nathaniel Pinto, 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 Pace Law Firm be removed as representative of record for Mr. Pinto?
Should Mr. Pinto’s Application for Arbitration be dismissed with or without costs?
Result:
Pace Law Firm is removed as representative of record for Mr. Pinto.
Mr. Pinto’s Application for Arbitration is dismissed without costs.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion was held on August 4, 2015. The Applicant failed to attend the Pre-Hearing discussion on that day.
The Applicant’s representative advised at the Pre-Hearing on August 4, 2015 that she had been unable to contact the Applicant despite her diligent efforts. She provided a copy of the letter, dated July 7, 2015, which was sent to the Applicant providing him with notice that she had been unable to contact the Applicant and as such, are no longer able to represent him with respect to his Application for Arbitration. Further, they are bringing a Motion to be removed as his representative of record on the basis that there has been a material breakdown in the solicitor-client relationship.
At the August 4, 2015 Pre-Hearing discussion, the Insurer advised that it would be proceeding to seek a dismissal of the Application for Arbitration.
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 that a Motion was to be held by telephone at 1:00 p.m. on September 28 2015. By letter to the Applicant, dated August 6, 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 1:00 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 24, 2015 advised the Applicant and his representative that it would be seeking a dismissal of the Application for Arbitration at the Motion on September 28, 2015.
Request to be Removed from the Record
On September 28, 2015 at 1:00 p.m., the Motion proceeded by telephone conference call as scheduled. Ms. Stancheva participated as did Mr. Edwards. 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 advised by letter, dated July 13, 2015, that it does 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:
Pace Law Firm is removed as representative of record for Mr. Pinto.
Order for Dismissal
The Insurer then brought a Motion for a dismissal of the Application for Arbitration under Rule 68 of the Code on a without costs basis.
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. The Insurer advised it is not seeking costs. Accordingly and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.1.8, as amended, no costs are awarded.
Result:
Mr. Pinto’s Application for Arbitration is dismissed without costs.
EXPENSES:
There is no Order for expenses.
November 23, 2015
Thérèse Reilly Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 256
FSCO A14-006385
BETWEEN:
NATHANIEL PINTO
Applicant
and
RBC GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Pace Law Firm is removed as representative of record for Mr. Pinto.
Mr. Pinto’s Application for Arbitration is dismissed without costs.
November 23, 2015
Thérèse Reilly Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.