Hossein Abdullahnejad v. Zurich Insurance Company Ltd., 2015 ONFSCDRS 82

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 82

FSCO A14-001091

BETWEEN:

HOSSEIN ABDULLAHNEJAD

Applicant

and

ZURICH INSURANCE COMPANY LTD.

Insurer

REASONS FOR DECISION

Before: Arbitrator Cindy Dymond

Heard: By telephone conference call on February 26, 2015 and March 26, 2015

Appearances: Mr. Shahen Alexanian for Mr. Hossein Abdullahnejad

Ms. Susannah Travers for Zurich Insurance Company Ltd.

Issues:

The Applicant, Mr. Hossein Abdullahnejad, was injured in a motor vehicle accident on October 4, 2010 and sought accident benefits from Zurich Insurance Company Ltd. (“Zurich”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mr. Abdullahnejad, through his 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 Mr. Shahen Alexanian and the Alexanian, Benjamin Law Firm be removed from the record as solicitors for Mr. Hossein Abdullahnejad?
Should Mr. Hossein Abdullahnejad’s Application for Arbitration be dismissed?

Result:

Mr. Shahen Alexanian and the Alexanian, Benjamin Law Firm are removed as solicitors of record for Mr. Hossein Abdullahnejad.
Pursuant to Rule 68 of the Dispute Resolution Practice Code and with the consent of the Insurer, the Application for Arbitration is dismissed and the file closed.

EVIDENCE AND ANALYSIS:

On August 7, 2014, a Pre-Hearing conference was held at the offices of ADR Chambers with regard to Mr. Abdullahnejad’s Application for Arbitration. Although notified of that Pre-Hearing conference, Mr. Abdullahnejad did not attend or communicate the reason for his absence.

A resumption of the Pre-Hearing was held on January 26, 2015. At the reconvened Pre-Hearing conference, Mr. Abdullahnejad again failed to attend or otherwise contact ADR Chambers. Nor did his counsel attend. At that time, Ms. Travers raised a motion to dismiss the Arbitration claim on the basis that the Applicant did not attend any of the Pre-Hearing meetings. A Preliminary Issue Hearing was scheduled. Subsequently, on January 26, 2015, I prepared a Pre-Hearing letter in which I advised Mr. Abdullahnejad of the Preliminary Issue Hearing, scheduled for February 26, 2015. I wrote:

Please note that the Preliminary Issue Hearing is peremptory and the Application for Arbitration may be dismissed if Mr Abdullahnejad does not attend on that date.

Should Mr Abdullahnejad object to a dismissal of this case or seek to make written submissions, Rule 68.3 of the Dispute Resolution Practice Code states that the party must provide the grounds for the objection or set out any other issues or concerns in writing, and serve the materials to the other parties, and file those materials within 20 days of the date of this letter.

If I don’t receive any written submissions from Mr. Abdullahnejad or his legal counsel in response to this letter or if the Applicant fails to attend the Preliminary Issue Hearing on February 26, 2015, this Application may be dismissed without further notice.

A copy of the letter was sent by registered mail to Mr. Abdullahnejad at the postal address listed on the Application for Arbitration. The letter was not returned to ADR Chambers.

At the Preliminary Issue Hearing held by teleconference on February 26, 2015, Mr. Alexanian attended on behalf of Mr. Abdullahnejad. Mr. Alexanian requested to be taken off the record due to an inability to contact his client to obtain instructions. Counsel agreed to resume the Preliminary Issue Hearing on March 26, 2015 by teleconference. I wrote to Mr Abdullahnejad again, indicating the re-scheduled date, the information that counsel requested to be taken off record, and again, that the matter was peremptory and that the Application for Arbitration might be dismissed if Mr. Abdullahnejad did not attend on that date.

Prior to the March 26, 2015 Preliminary Issue Hearing, Mr. Alexanian filed an affidavit on behalf of Hammed Chenzaie, a law clerk at Alexanian Law Firm, detailing numerous attempts made by the firm over several months to contact their client by phone and by ordinary and registered mail, all without success.

Request by Applicant’s Counsel

As a result of his client’s non-attendance and lack of communication, Mr. Alexanian requested that he and his firm be removed as solicitors of record in the Application. Ms. Travers consented to that request.

Decision

On the consent of both counsel, Mr. Alexanian and the Alexanian, Benjamin Law Firm are removed as solicitors of record in the Application for Arbitration.

On January 26, 2015 and February 26, 2015, respectively, I advised Mr. Abdullahnejad in writing that if he did not attend the Preliminary Issue Hearing, scheduled for February 26, 2015, and then re-scheduled for March 26, 2014, or contact his lawyer with instructions, I could, with the consent of the Insurer, dismiss the Application pursuant to Rule 68 of the Dispute Resolution Practice Code. The Applicant’s lawyer, Mr. Alexanian, also advised that he sent Mr. Abdullahnejad written correspondence explaining the potential serious consequences if he did not attend the resumed Pre-Hearing conference or provide him with instructions to act on his behalf.

Mr. Abdullahnejad did not attend the Pre-Hearing, resumed Pre-Hearing, or Preliminary Issue Hearing and neither his counsel nor ADR Chambers has received any communications from him. Therefore, pursuant to Rule 68 of the Dispute Resolution Practice Code and with the consent of the Insurer, Mr. Abdullahnejad’s Application for Arbitration is dismissed and the file closed.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Dispute Resolution Practice Code.

April 21, 2015

Cindy Dymond

Arbitrator

Date