Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 268 FSCO A14-004623
BETWEEN:
NICOLE KRAMER Applicant
and
AVIVA CANADA INC. Insurer
REASONS FOR DECISION
Before: Arbitrator Benjamin Drory Heard: By teleconference on October 23, 2015 and November 20, 2015
Appearances: Ms. Nicole Kramer did not participate Mr. Ryan Moriarty participated for Ms. Nicole Kramer Ms. Lyndra Griffith participated for Aviva Canada Inc.
Issues:
The Applicant, Ms. Nicole Kramer, was injured in a motor vehicle accident on November 4, 2011 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Kramer, 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 issues in this Hearing are:
- Should Ms. Kramer’s Application for Arbitration be dismissed?
- Is Aviva entitled to its expenses of the proceeding
Result:
- Ms. Kramer’s Application for Arbitration is dismissed.
- Aviva is entitled to its expenses in the amount of $300.00. I order Ms. Kramer to pay this amount to Aviva forthwith.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held at the offices of ADR Chambers on August 17, 2015 at 3:00 p.m., at which Ms. Kramer failed to appear.
On that same day, I sent a letter to Ms. Kramer at her last known address to advise her of the missed Pre-Hearing discussion. The letter provided Ms. Kramer with an Attendance Notice, setting a date of October 23, 2015, starting at 1:30 p.m., to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I might dismiss her application and consider Aviva’s request for expenses.
The Dismissal
For the reasons that follow, Ms. Kramer’s Application for Arbitration is dismissed.
As of October 23, 2015, I was unable to contact Ms. Kramer, she had yet to contact her legal representative or ADR Chambers as requested, and she had not participated in any of the Arbitration proceedings.
In spite of Ms. Kramer’s second failure to attend, there were still positive discussions between Mr. Moriarty and Ms. Griffith during the October 23, 2015 call, such that they agreed among themselves to a tentative resolution of the matter, pending Mr. Moriarty’s ability to locate Ms. Kramer and obtain her instructions which would affirm it. In the circumstances, I exercised my discretion to not dismiss the claim immediately, as would typically be the case. A second resumption was instead set for November 20, 2015 at 10:30 a.m., to hear the issues in the Application for Arbitration. But all parties were hopeful that Mr. Moriarty would be able to locate Ms. Kramer in the intervening month, and there was a common understanding among all involved that the matter would be dismissed on November 20, 2015 if Ms. Kramer did not respond and/or participate by that time.
Unfortunately, Mr. Moriarty was unable to locate Ms. Kramer during this four-week period. I am satisfied that he attempted telephoning her and writing to her by letter, and that he also even drove to her home to try to find her. None of these efforts were successful. Ms. Kramer did not participate in the resumed proceeding on November 20, 2015.
I am satisfied that Ms. Kramer was given notice of all of the proceedings related to her Arbitration at her last known address.
Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in her absence.
Ms. Kramer bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.
EXPENSES:
Aviva verbally requested $500.00 in expenses, in respect of Ms. Griffith’s attendance at the first Pre-Hearing of August 17, 2015, and the two subsequent resumptions of the proceeding on October 23, 2015 and November 20, 2015.
Mr. Moriarty submitted in return that expenses should be limited to $200.00, in recognition of the fact that it was unlikely any such award would ever be collected anyway. However, he was disturbed by his own client’s repeated non-attendance and inability to reach her, and conceded that an award should be granted in order to discourage Ms. Kramer from making any future efforts respecting her claim.
I award Aviva expenses in the amount of $300.00. Based on the rules guiding expenses, this reflects approximately 3 hours of work on Ms. Griffith’s behalf in these proceedings. Of course, her work over the lifetime of Ms. Kramer’s case was far more than this. I share Mr. Moriarty’s skepticism regarding whether Ms. Kramer is locatable – which in the circumstances of this case was unfortunate, and led to a less favorable result for herself than would likely have been possible had she participated.
December 14, 2015
Benjamin Drory Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 268 FSCO A14-004623
BETWEEN:
NICOLE KRAMER Applicant
and
AVIVA CANADA INC. Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. Kramer’s Application for Arbitration is dismissed.
- Aviva is entitled to its expenses in the amount of $300.00. I order Ms. Kramer to pay this amount to Aviva forthwith.
December 14, 2015
Benjamin Drory Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.