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

Neutral Citation: 2015 ONFSCDRS 6

FSCO A13-007530

BETWEEN:

B.K.

Applicant

and

GEICO INSURANCE COMPANY

Insurer

Before: Stuart J. Mutch

Heard: January 9, 2015 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for B.K. Mr. Kevin Adams for Geico Insurance Company

Issues:

The Applicant, B.K., was injured in a motor vehicle accident on April 21, 2010. Disputes arose between B.K. and his insurer, Geico Insurance Company (“Geico”), concerning his entitlement to accident benefits payable under the Schedule¹ and B.K. applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act,² by way of application dated June 4, 2013.

BACKGROUND

A pre-hearing discussion was held on February 5, 2014, in which B.K. participated as well as his counsel at the time and counsel for Geico. Issues were identified and a resumption of the pre-hearing was scheduled for November 6, 2014. The hearing itself was scheduled to commence February 2, 2015.

In June 2014 B.K.’s counsel made a request to withdraw as B.K.’s representative. He advised that B.K. was aware of his request.

B.K. was diagnosed with paranoid schizophrenia prior to the accident. He lives a transient existence, occasionally picking up mail at his father’s address. He became an elective mute after the accident. Because of B.K.’s circumstances, I felt an in-person motion by B.K.’s counsel would be appropriate. It was scheduled for September 12, 2014.

In a letter dated July 14, 2014 counsel for B.K. advised that B.K. is aware of the pre-hearing resumption date and of the scheduled arbitration date of February 2, 2015. He asked that he be permitted to withdraw without the necessity of an in-person motion.

Given that my July 4, 2014 letter to B.K. and the notice of the motion had both been returned, I thought it highly unlikely that B.K. would attend and accordingly the date for the hearing of the motion was vacated and B.K.’s counsel was permitted to withdraw.

The pre-hearing discussion was resumed on November 6, 2014 at the offices of FSCO. B.K. did not appear. Mr. Adams appeared on behalf of Geico. At that time I vacated the hearing set to commence February 2, 2015 and set a new hearing date of January 9, 2015. In a letter to B.K. dated November 12, 2014 I advised B.K. that if he did appear the hearing would be converted to a pre-hearing, and if he did not appear I would entertain a motion to dismiss his claims. I also drew his attention to Rule 68 of the Dispute Resolution Practice Code.

All correspondence to B.K. was sent to his last known address, being the address of his father. A notice of the February hearing was sent to the same address. Rule 9.1(c) of the Code provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.

The hearing of January 9, 2015

I attended the hearing room at 10:00 a.m. on January 9, 2015. B.K. had not appeared. Mr. Adams had been allowed to attend by teleconference. I re-attended the hearing room at 10:25 a.m. B.K. had not appeared, nor was he in the waiting room.

Mr. Adams, on behalf of Geico, requested that B.K.’s claims be dismissed. He has had no contact with FSCO since February 2014. B.K. failed to attend the resumption of the pre-hearing and did not give any reason for not doing so.

He did not appear at the hearing of January 9, 2015, nor did any representative appear on his behalf. No evidence was presented in support of his claims. His claims are dismissed.

EXPENSES

Geico did not ask for its expenses. Given B.K.’s situation, I think it would be inappropriate to make an order for expenses. Each party shall bear its own costs.

January 13, 2015

Stuart J. Mutch Arbitrator

Date