Brian Pascall v. RBC General Insurance Company, 2015 ONFSCDRS 76

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 76

FSCO A13-013017

BETWEEN:

BRIAN PASCALL

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Anne Morris

Heard: In person at ADR Chambers on February 25, 2015

Appearances: Mr. Brian Pascall did not participate Mr. Lawson Hennick participated for Mr. Brian Pascall Mr. Philip Ghosh participated for RBC General Insurance Company

Issues:

The Applicant, Mr. Brian Pascall, was injured in a motor vehicle accident on August 16, 2010. He applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”) payable under the Schedule.¹ RBC denied certain other benefits. The parties were unable to resolve their disputes through mediation, and Mr. Pascall 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 Hearing are:

Should the law firm of Yermus & Associates be permitted to withdraw as representatives for Mr. Pascall?
Should Mr. Pascall’s Application for Arbitration, which includes claims for Income Replacement Benefits, Attendant Care Benefits, and Housekeeping and Home Maintenance Benefits, be dismissed?
Is RBC entitled to expenses?

Result:

The law firm of Yermus & Associates is removed as representatives for Mr. Pascall.
Mr. Pascall’s Application for Arbitration is dismissed.
Mr. Pascall shall pay RBC’s expenses in the amount of $887.32.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion took place on November 28, 2014. Mr. Pascall did not participate. Mr. Michael Yermus of Yermus & Associates advised that he had been unable to locate Mr. Pascall to obtain instructions. He confirmed that Mr. Pascall’s address and telephone number were the same as those contained in the Commission Records.

The Insurer requested that a Hearing be scheduled at which time the Insurer would request that the Application for Arbitration be dismissed if Mr. Pascall did not attend.

A Preliminary Issue Hearing was scheduled and a letter, dated December 4, 2014, was sent by registered mail to Mr. Pascall advising that a Hearing would be held on February 25, 2015 at the time and location specified in the letter, which also contained contact information for ADR Chambers. The letter specified that the Preliminary Issue at the Hearing would be whether or not Mr. Pascall’s Application for Arbitration should be dismissed.

The letter contained a proviso as follows:

Where notice of hearing has been sent to a party and a party does not attend, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Mr. Pascall did not attend the Hearing on February 25, 2015. The registered letter of December 4, 2014 was confirmed to have been delivered.

I was unable to reach Mr. Pascall at the telephone number contained in the Commission Records or at the telephone number associated with the address contained in the Commission Records to which the letter of December 4, 2014 was sent.

Mr. Lawson Hennick of Yermus & Associates made a request in writing for permission to withdraw as representatives for Mr. Pascall and confirmed Mr. Pascall’s address and telephone number. Mr. Hennick confirmed that the law firm had made numerous efforts to contact Mr. Pascall for instructions by way of telephone messages and written correspondence. He confirmed that a letter and email had been sent on December 3, 2014, advising that if the law firm did not hear from Mr. Pascall by December 31, 2014, they would move to get off the record.

I am satisfied that there has been a breakdown in the solicitor and client relationship between Yermus & Associates and Mr. Pascall as evidenced by the inability of Yermus and Associates to communicate with Mr. Pascall and to obtain instructions. Permission is granted to Yermus & Associates to withdraw as representatives for Mr. Pascall and they are removed as representatives of record.

I am satisfied that Mr. Pascall was given notice of the Preliminary Issue Hearing at his last known address contained in the records of the Dispute Resolution Group (including ADR Chambers) as required by Rule 5.7 of the Dispute Resolution Practice Code.

Mr. Pascall bears the onus of proving entitlement to the claimed accident benefits. Since he did not attend the Preliminary Issue Hearing and no evidence was presented on his behalf, this Application for Arbitration is dismissed.

EXPENSES:

I find that RBC, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses. RBC presented a Bill of Costs in the amount of $887.32. I find this amount to be reasonable and in accordance with the Expense Regulation, the Schedule to the Expense Regulation, and Rules 75 and 78 of the Dispute Resolution Practice Code. Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.1.8, as amended, Mr. Pascall is ordered to pay RBC’s expenses in the amount of $887.32.

April 16, 2015

Anne Morris

Arbitrator

Date