Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 61

FSCO A14-003157

BETWEEN:

YVETTE JOHNSTON-HENRY Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

PRE-HEARING DECISION

Before: Alan Mervin

Heard: March 24, 2015, in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Mrs. Johnston-Henry for herself Eric Levin for TD Home and Auto Insurance Company

Issues:

The Applicant, Yvette Johnston-Henry, was injured in a motor vehicle accident on August 17, 2009. She applied for statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), The parties were unable to resolve their disputes through mediation, and Mrs. Johnston-Henry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A resumption of pre-hearing discussion in this case was held on April 24, 2015, at 10:00 a.m. Originally scheduled to proceed as a teleconference, Mrs. Johnson-Henry appeared in person at the offices of the Financial Services Commission of Ontario. Mrs. Johnston-Henry participated.

Ms. Olena Samborska participated by telephone on behalf of TD Home and Auto Insurance Company (TD Home). Mrs. Johnston-Henry represented herself. Mr. Levin, legal counsel, represented TD Home and participated by telephone.

The issue at this pre-hearing are:

1. Should Mrs. Johnston Henry be permitted to withdraw her application for arbitration?

Result:

1. Mrs. Johnston-Henry is permitted to withdraw her application for arbitration.

EVIDENCE AND ANALYSIS:

By letters dated March 1, 2015 and March 12, 2015, Mr. Levin wrote this office to request a resumption of pre-hearing in this matter. Mr. Levin indicated that there had been settlement discussions with Mrs. Johnston-Henry’s former counsel, but those had not come to fruition.

She has since terminated the retainer of her representative, and has sent several letters to Mr. Levin with regard to settling this matter. Those letters, while very articulate and detailed, contained some information that raised concerns with Mr. Levin with respect to Mrs. Johnston-Henry’s capacity to enter into a settlement and Mr. Levin requested this resumption to deal with this matter before an arbitrator for guidance on how to proceed.

In her letter of March 24, 2015, Mrs. Johnston-Henry wrote that, “Mr. Levin claimed that he had concerns about entering into a full and final resolution with me, without having a Public Guardian or Trustee representing my interest. I have no interest to be represented. What I have requested is closure to my file.”

She further wrote that, “I am pursuing healing for myself and my family. Therefore, there is no need for a tribunal to notify the Public Guardian and Trustee to take appropriate steps.”

This application involved a potential claim for a finding of catastrophic impairment, as well as other issues in dispute.

Settlement discussions took place between the parties, but no final agreement was reached.

Mrs. Johnston- Henry made it clear in her several letters that she was seeking cancellation of the scheduled arbitration hearing and a closing of her file by the Insurer, and set out what might be characterized as her unusual settlement request in her correspondence. This was clearly set out in letters addressed to Mr. Levin and copied to FSCO dated March 9, 2015, March 19, 2015 and March 24, 2015

In addition, Mrs. Johnston- Henry wrote to FSCO on March 9, 2015. In that letter addressed to the case administrator, Mrs. Johnston Henry made a formal request to close her file with FSCO effective immediately, and to cancel the Arbitration Hearing scheduled for October 20-22, 2015.

At the pre-hearing, Mrs. Johnston-Henry again advised that she had now been healed, did not want this matter to go any further, and requested that the insurer settle with her for so that her file could be closed and the upcoming hearing cancelled. She wanted no further dealings with the Insurance Company.

After having reviewed the correspondence sent by Mrs. Johnston-Henry, and, because of his concerns, both with respect to the issues raised in her letters, and the unusual nature of the terms she was requesting with respect to her settlement, Mr. Levin suggested that Mrs. Johnston- Henry obtain legal advice before entering into a settlement on any basis. Mr. Levin was hesitant to enter into and execute any settlement with Mrs. Johnston Henry in the absence of her obtaining legal advice.

At the pre-hearing, Mr. Levin again suggested that Mrs. Johnston Henry seek legal advice. I also asked her if she would like to do so.

Mrs. Johnston-Henry advised that she did not want to speak to a lawyer, and was requesting that FSCO close her file.

I then entered into a brief discussion with Mrs. Johnston- Henry about the purpose of the proceedings, her wishes as to how to proceed, about her relationship with her prior counsel, and about some of the issues she raised in her correspondence.

In every case, there is a presumption of capacity which can be rebutted by evidence showing lack of capacity, and while her correspondence and views about the role and conduct of the Insurance Company in the proceedings raised some concerns, and her settlement proposal was somewhat unusual, the issues Mrs. Johnston- Henry raised, in my view, did not impact on her capacity to participate. I was satisfied that her answers demonstrated that she had capacity to participate in the proceedings and was clearly content to proceed without representation.

Mr. Levin then requested that I dismiss the arbitration at the pre-hearing. I was not prepared to do so. Rule 68.1 of the DRPC allows an adjudicator to dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commence in bad faith. There was no evidence that this claim was frivolous, vexatious or commenced in bad faith.

Rule 70.1 of the DRPC states that,

“a party may seek permission to withdraw all or part of a dispute by:

(a) Serving a request to withdraw on all parties; and

(b) filing the request to withdraw together with a Statement of Service in FORM F; or

(c) making an oral request to withdraw all or part of a dispute during a neutral evaluation, pre-hearing discussion, settlement discussion, preliminary conference or at a hearing.

Rule 70.2 states that,

“an adjudicator may permit a party to withdraw all or part of a dispute where all parties agree.”

Under the circumstances of this case, while I am not prepared to dismiss these proceedings at this time, it is Mrs. Johnston-Henry’s request that her disputes be withdrawn. She repeated this request at the pre-hearing orally, as well as in her written request to FSCO in her letter of March 9, 2015.

Mr. Levin consented to this request, and advised that he would not seek any costs.

I am therefore prepared to accede to her oral and written request. Her application for arbitration is withdrawn, without costs, and her scheduled hearing is cancelled.

The pre-hearing then concluded.

EXPENSES:

As the Insurer consented to withdrawal of the application without costs, no expenses are awarded in this matter.

Alan Mervin Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 61

FSCO A14-003157

BETWEEN:

YVETTE JOHNSTON-HENRY Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mrs. Yvette Johnston-Henry’s application for arbitration is withdrawn without costs.

Arbitrator

Date