Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 269
FSCO A15-000636
BETWEEN:
TOMARA PHILIP
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A MOTION
Before: Arbitrator Benjamin Drory
Heard: By teleconference on October 30, 2015
Appearances: Ms. Tomara Philip did not participate
Mr. Alex Lempp participated for Ms. Tomara Philip
Ms. Emma Katz participated for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Ms. Tomara Philip, was injured in an automobile accident on June 27, 2012 and sought accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”) under the Schedule. 1 The parties were unable to resolve their disputes through mediation and Ms. Philip, through her legal 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 Ms. Philip’s Application for Arbitration be dismissed?
Should Mr. Lempp be permitted off the record as legal representative for Ms. Philip?
Result:
Ms. Philip’s Application for Arbitration is dismissed.
Mr. Lempp is permitted off the record as legal representative for Ms. Philip.
EVIDENCE AND ANALYSIS:
On January 30, 2015, the Financial Services Commission of Ontario received an Application for Arbitration filed on behalf of Ms. Tomara Philip.
A Pre-Hearing in this matter was originally held on August 5, 2015, at the offices of ADR Chambers. Mr. Lempp and Ms. Katz participated, as did Ms. Lorraine LeBlond on behalf of Royal. Ms. Philip did not attend and did not participate.
Royal requested that Ms. Philip’s claim be dismissed. Pursuant to Rule 68.2 of the Dispute Resolution Practice Code, sufficient written notice must be provided to all parties before a claim can be dismissed. Accordingly, I issued a letter, dated August 7, 2015, delivered to all parties (or in Ms. Philip’s case, her last-known address), advising that another meeting in this case had been scheduled for Friday, October 30, 2015, starting at 9:30 a.m., by teleconference. Ms. Philip was advised, in bold font, that in accordance with Rule 68.2, if she did not personally participate in the proceeding, then the Application for Arbitration may be dismissed.
Mr. Lempp advised during the August 5, 2015 discussion that he had been unable to contact Ms. Philip in some time, and that if he was unable to contact Ms. Philip prior to October 30, 2015 then he would seek to get off the record. On October 27, 2015, ADR Chambers received correspondence from Mr. Lempp advising of numerous attempts he made to contact Ms. Philip unsuccessfully, and which also ultimately indicated to Ms. Philip his intention to get off the record. I reviewed the material provided to me and am satisfied there has been a breakdown in the solicitor-client relationship. Accordingly, Mr. Lempp’s request for withdrawal as representative of record is appropriate within Rule 9.7 of the Dispute Resolution Practice Code, and was verbally granted at the commencement of the meeting on October 30, 2015.
Following Mr. Lempp’s removal from the record, I made two attempts (9:40 a.m. and 10:01 a.m.) to contact Ms. Philip directly by phone, at her last known contact number within the Commission Records. On both attempts, I was unsuccessful, and received a recorded message to the effect that Ms. Philip’s voice mail service had not been initialized, and that she was not available.
In all of these circumstances, I find that it is appropriate to dismiss this matter without a Hearing pursuant to Rule 68.1 of the Dispute Resolution Practice Code, on the basis that the proceeding is frivolous, vexatious, or was commenced in bad faith.
EXPENSES:
By letter, dated October 22, 2015, Ms. Katz advised, on behalf of Royal, that Royal would be seeking reimbursement of legal expenses in the matter in the total amount of $1,733.55 in the event that Ms. Philip did not attend the October 30, 2015 proceeding and the matter was dismissed – which is now the case. The submission reflects approximately 17 hours of work by Ms. Katz and other members of her firm. It is common practice for the unsuccessful party in an Arbitration matter to be responsible for a portion of the legal costs of the successful party. Ms. Philip is asked to please respond to this submission within 30 days of the date of this Order. I will issue my decision respecting expenses following that period of time, whether a response is received or not.
December 14, 2015
Benjamin Drory
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 269
FSCO A15-000636
BETWEEN:
TOMARA PHILIP
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Philip’s Application for Arbitration is dismissed.
Mr. Lempp is removed from the record as legal representative for Ms. Philip
December 14, 2015
Benjamin Drory
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.