Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 55

FSCO A13-010052

BETWEEN:

PORFIRIA SANCHEZ DE DIAZ

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

Before: Arbitrator Richard Feldman

Heard: January 16, 2015 at the offices of the Financial Services Commission of Ontario in Toronto and by way of written submissions, in accordance with Rule 68 of the Dispute Resolution Practice Code

Appearances: No one participating on behalf of Ms. Sanchez De Diaz Ashley Lepine for TD General Insurance Company

Issues:

The issue to be decided at this time is:

Pursuant to Rule 68 of the Dispute Resolution Practice Code ("Code"), should this application be dismissed without a hearing because it is frivolous, vexatious or was commenced in bad faith?

Result:

This application is dismissed.

EVIDENCE AND ANALYSIS:

The Applicant, Ms. Porfiria Sanchez De Diaz, claims to have been injured in a motor vehicle accident on February 5, 2011. She applied for statutory accident benefits under the Schedule¹ from TD General Insurance Company (“TD General”). Disputes arose over the Applicant's entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and, in August 2013, the Applicant applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the time this application was filed, the Applicant was represented by Bobby Tut, licensed paralegal, of TRG Legal Services Professional Corporation. A Response was received from the Insurer in October 2013.

A pre-hearing discussion in this case was scheduled to be held on October 21, 2014, at 11:30 a.m., at the offices of FSCO. At that time, Ms. Lepine, legal counsel, appeared on behalf of TD General. The Applicant did not attend before me on October 21, 2014. Mr. Tut appeared and asked that the pre-hearing be rescheduled and advised that, if he was not able to communicate with the Applicant, he would be seeking to withdraw from this proceeding as the Applicant’s legal representative.

I wrote to the Applicant at her last known residential address on October 21, 2014. In that letter I advised her that the pre-hearing conference was adjourned to January 16, 2015 at 2:00 p.m., that she should attend before me on that date and that, if she failed to communicate with Mr. Tut prior to that date, he indicated that he would be seeking permission to be removed as her representative.

On January 16, 2015, the Applicant again failed to appear before me. Mr. Tut’s motion (to withdraw from this proceeding) was granted. The Insurer then requested that this application be dismissed pursuant to Rule 68 of the Code. Pursuant to Rule 68, an arbitrator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

On January 16, 2015, I wrote to the Applicant at her last known residential address and advised her that it was my intention to grant the Insurer’s request to dismiss this application unless she could provide reasonable grounds for my doing otherwise. In accordance with Rule 68.3, I advised her that if she wished to dispute such a dismissal, she would be granted until February 20, 2015 to serve upon TD General and file with me any written submissions she wished me to consider, setting out the grounds upon which she objected to the dismissal of the proceeding or setting out any other issues or concerns.

To date, the Applicant has delivered no written (or other) submissions explaining why this application should not be dismissed. I requested that counsel for the Insurer indicate in writing what order was being sought by the Insurer. On February 18, 2015, Ms. Lepine wrote to me to advise that TD General is requesting an order dismissing this application, without "costs".

While I do not have sufficient evidence before me to conclude that this application was commenced in bad faith, at this point, it appears to me that the Applicant has manifested no interest in pursuing these claims. This problem is further exacerbated by her failure to communicate with her own legal representative, the Insurer or FSCO and her failure to participate in these proceedings. It would be unreasonable to force the Insurer to expend more time or effort on this matter. In these circumstances, the proceeding has now become frivolous or vexatious. I shall grant the Insurer's motion to dismiss this application pursuant to Rule 68 of the Code.

March 18, 2015

Richard Feldman Date

Arbitrator