Neutral Citation: 2015 ONFSCDRS 40 FSCO A14-001224

BETWEEN:

CHERYL COLBERT Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson Heard: By telephone conference call on February 12, 2015

Appearances: Ms. Cheryl Colbert did not participate Ms. Norma Barron participated for Ms. Cheryl Colbert Ms. Tamara Broder participated for TTC Insurance Company Limited

Issues:

The Applicant, Ms. Cheryl Colbert, was injured in a motor vehicle accident on July 10, 2010 and sought accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Ms. Colbert, 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 Preliminary Issue Hearing are:

Should the Applicant's counsel be removed from the record?
Should the Applicant's Application for Arbitration be dismissed, with costs?

Result:

The Applicant's counsel shall be removed from the record.
The Applicant's Application for Arbitration is dismissed, with costs in the amount of $500.00.

EVIDENCE AND ANALYSIS:

The first Arbitration Pre-Hearing discussion was held before me on November 19, 2014. At that time, I scheduled another Arbitration Pre-Hearing to take place on February 12, 2015.

During the first Pre-Hearing, Mr. Michael Yermus, Applicant's counsel had admitted he had lost contact with the client for almost a year and as a result, he was preparing to present a motion in order for his firm to be removed from the record.

The Insurer's counsel then communicated that they were able to locate the Applicant as they had set up some surveillance, to which the Insurer provided the second address that they believed she resided, to the Applicant's counsel. ADR Chambers sent the Pre-Hearing letters which noted, among other things, the contact information for ADR Chambers and the call in information for the pending teleconference Resumption, to both of the Applicant's alleged addresses.

At the second Pre-Hearing, after all attempts to contact the Applicant had failed, it resulted in two motions being presented by counsel. The first was the Applicant's counsel formally requesting to be removed from the record; the second was the Insurer's motion to dismiss the file, forthwith with costs.

Counsel for the Insurer had no objection to Applicant's counsel being removed from the file, but added that I should take an adverse inference from the Applicant's actions.

It was first noted that the Applicant moved without telling her lawyer; second, the Applicant didn't respond to any letters written to her by her counsel or ADR Chambers which were sent to both addresses. To these ends, Insurer's counsel made the motion that the claim made by the Applicant be dismissed, with costs, forthwith.

I am satisfied that all appropriate steps and efforts were taken to notify the Applicant, thus the Applicant was aware that she was to attend this proceeding today. After listening to all the Applicant counsel's evidence, I am also satisfied that the Applicant was aware that her failure to attend would result in TTC bringing an application 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.

As Ms. Colbert has not participated in any of the Arbitration proceedings and has not yet responded to these numerous communication attempts, I find that there has been a breakdown in the relationship between Yermus & Associates and Ms. Colbert. As such, I have granted their request to be removed from the record.

Rule 68 of the Dispute Resolution Practice Code ("DRPC") 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.

I am satisfied that Ms. Colbert was given notice of the Pre-Hearing as required by Rule 68(2) of the DRPC at her last known address(s) contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Ms. Colbert was given an opportunity to make submissions should she wish to object to the dismissal as required by Rule 68(3) of the DRPC. As Ms. Colbert did not participate, her Application for Arbitration is dismissed without a Hearing under Rule 68(1) of the DRPC on the basis that the application was frivolous, vexatious or was commenced in bad faith as she failed to participate in the proceeding.

Therefore, I find that the above reasons are sufficient to remove Yermus & Associates as counsel on record for this Application for Arbitration effective February 13, 2015 and dismiss the Application for Arbitration, forthwith.

EXPENSES:

Ms. Broder has requested expenses in this matter as a result of the dismissal of the Applicant's Application for Arbitration. After listening to the Insurer's arguments for costs for the whole associated file, I have considered Rule 75.2(d) of the DRPC having regard to the criteria in determining whether costs may be awarded and find that Ms. Colbert prolonged and hindered the Arbitration proceedings. In determining the quantum, I have considered Rule 78.1 of the DRPC and find that TTC is entitled to expenses assessed at $500.00, which is payable forthwith.

March 3, 2015

Charles Matheson Arbitrator

Date

Financial Services Commission of Ontario