Rasha Ali v. Motor Vehicle Accident Claims Fund, 2015 ONFSCDRS 88

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 88

FSCO P15-00005

BETWEEN:

RASHA ALI

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Respondent

REASONS FOR DECISION

Before: Arbitrator Jeffrey Rogers

Heard: April 2, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Shahen Alexanian, solicitor for Ms. Ali Ms. Marie Sydney, solicitor for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Rasha Ali, applies to revoke the order dismissing her application for arbitration.

The issues in this hearing are:

Should the order dismissing the application for arbitration, made on November 26, 2014, be revoked?
Is either party entitled to its expenses of this variation/revocation application?

Result:

The order made on November 26, 2014 is revoked.
The parties shall bear their own expenses of this variation/revocation application.

BACKGOUND:

Ms. Ali, a resident of Canada, was injured in a motor vehicle accident on October 2, 2009. She applied for and received statutory accident benefits from Motor Vehicle Accident Claims Fund (“MVAC”), payable under the Schedule.¹ Disputes arose regarding Ms. Ali’s entitlement to further claimed benefits. The parties were unable to resolve their disputes through mediation, and Ms. Ali applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was scheduled to be held before me on June 10, 2014. Ms. Ali did not attend. Her solicitor provided a letter, signed by Ms. Ali on February 12, 2014. The letter advised that Ms. Ali would be in Saudi Arabia on an emergency visit on June 10, 2014, but she still wished to pursue this arbitration. Her solicitor advised that he had no further instructions and did not know when his client might return. I adjourned the pre-hearing to July 25, 2014, so that her solicitor could seek instructions.

Ms. Ali again did not attend on July 25, 2014. She had provided her solicitor with no further instructions. I proceeded in her absence and set a hearing date of November 14, 2014. Ms. Ali did not attend the hearing. Her solicitor advised that he still had no instructions, despite exhaustive efforts to locate Ms. Ali.

I concluded that Ms. Ali appeared to have lost interest in pursuing the arbitration. I was satisfied that she was given proper notice of the hearing and of the two pre-hearings. I proceeded with the hearing and made an order dismissing the application for arbitration.

Ms. Ali returned to Canada 13 days later and promptly filed an Application to vary/revoke the order I had made. The Director of Arbitrations appointed me to decide the Application.

EVIDENCE AND ANALYSIS:

Section 284 of the Insurance Act and Rule 61 of the Dispute Resolution Practice Code ("DRPC") set out the grounds for applying to vary or revoke an order. They are:

(a) material change in circumstances of the insured;

(b) evidence not available at the arbitration or appeal has become available; or

The only basis for this application is “evidence not available at the arbitration”.

Ms. Ali submitted that I would not have proceeded in her absence, had I known of her continued interest in pursuing the arbitration and of her imminent return to Canada. MVAC submitted that I would have proceeded with the hearing on November 14, 2014, even if I had known that Ms. Ali would be returning to Canada in 13 days.

Ms. Ali’s unchallenged evidence was that she got married in July 2013. Her husband works in Sudan and in Saudi Arabia and he is required to be there most of the year. The wedding ceremony took place in Sudan. At that time, Ms. Ali was there for two and a half months.

She attended at her lawyer’s office in February 2014 and informed someone there that she was going to visit her husband and would be returning in the summer with the intention of continuing to pursue her arbitration. She signed the letter her solicitor submitted to me on June 10, 2014 describing this visit as an “emergency”.

In June 2014 while in Sudan, having experienced bouts of nausea and vomiting, Ms. Ali found out that she was pregnant. Her doctors recommended against travelling in her condition. Her symptoms abated in November 2014 and she was cleared to travel at that time. She contacted her solicitors immediately upon her return to Canada.

Ms. Ali testified that she was not able to contact her solicitors while in Sudan and Saudi Arabia because she forgot to take her cellular phone and therefore did not have their contact information. She said that she could not search for the information because she did not have reliable access to the internet and she had no contact with anyone in Canada who could provide her with assistance.

I gave an oral ruling that I did not accept MVACs submission that, knowing of Ms. Ali’s imminent return, I would have proceeded regardless. The decision to proceed in Ms. Ali’s absence was based on the assumptions that she would not be available to provide instructions within a reasonable period of time and she had lost interest in pursuing her arbitration. In fact, Ms. Ali was available shortly and, by contacting her solicitors immediately upon her return, Ms. Ali demonstrated that she had a continuing interest in pursuing her arbitration.

In my view, the real question is whether the information regarding Ms. Ali’s extension of her stay was reasonably available on November 14, 2014. I conclude that it was not.

With all of the methods of communication currently available, it is difficult to accept that Ms. Ali could not have informed her solicitors of her changed circumstances. However, I find that the DRPC Rules do not require that she be held to a standard of perfection.

DRPC Rule 1.1 requires that the Rules be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute. In this case there is tension between a speedy, inexpensive resolution and the most just result. In these circumstances, I would weigh in favour of the most just result. I find that the most just result is that this matter proceeds to a determination of Ms. Ali’s claims on their merits. I have therefore made an order revoking my order of November 14, 2014.

EXPENSES:

Both parties sought their expenses. In my view, the parties should bear their own expenses. Ms. Ali was successful, but the application was made necessary by her lack of communication with her solicitors. I find no jurisdiction in this application, to order Ms. Ali to pay the expenses of MVAC’s attendances at the earlier arbitration proceedings, as MVAC requested. In my view, revocation of my earlier order means that the issue of expenses of the arbitration remains a live one, to be determined within the arbitration process.

April 24, 2015

Jeffrey Rogers Date

Arbitrator