Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 109
FSCO A13-012776
BETWEEN:
STANISLAV CHERYKOVSKIY
Applicant
and
CHARTIS INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A MOTION
Before: Arbitrator Charles Matheson
Heard: By written submissions due March 4, 2016
Appearances: Mr. Stanislav Cherykovskiy did not participate
Ms. Joy Stothers participated for Chartis Insurance Company of Canada
Issues:
The Applicant, Mr. Stanislav Cherykovskiy, was injured in a motor vehicle accident on April 22, 2009. He applied for and received statutory accident benefits from Chartis Insurance Company of Canada (“Chartis”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Cherykovskiy 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 Motion are:
Should this Application for Arbitration be dismissed with costs?
Should legal expenses be assessed with the dismissal, if applicable?
Result:
This Application for Arbitration is dismissed.
Mr. Cherykovskiy shall pay Chartis Insurance Company of Canada’s legal expenses of $632.80 inclusive of disbursements and taxes.
EVIDENCE AND ANALYSIS:
Legislation and Case Law considered
Dispute Resolution Practice Code - section 68
Background
The Applicant has not appeared at any step of the Arbitration process. The first Pre-Hearing was held on February 27, 2015. A Preliminary Issue Hearing was scheduled in this matter for April 11, 2016 at this time.
As the Applicant’s lawyer could not communicate to the Applicant throughout the year of 2015, counsel moved to be removed from the record and was granted same at a Pre-Hearing resumption held on February 5, 2016. The Insurer then vacated the Preliminary Issue Hearing and brought this Motion forward and requested that the Application for Arbitration be dismissed with costs.
A Pre-Hearing letter advising the Applicant that his lawyer was removed from the record and that he was now self-represented was sent to the Applicant. Further, the consequences of not communicating to either ADR Chambers or the Insurer within the next 30 days of the Pre-Hearing letter were clearly identified.
Decision
I am satisfied by the evidence that the two law firms went to extra measures as they attempted to communicate with the Applicant in this matter. Not only in the matter of being removed from the record but other issues such as the Preliminary Issue Hearing and the reasons for missing the scheduled Examination Under Oath process.
I am satisfied that the Applicant chose not to participate or abandoned his Application for Arbitration for accident benefits.
The Dispute Resolution Practice Code speaks to the dismissal of an Arbitration without a Hearing. This is found in section 68 which reads as follows:
Dismissal of proceeding without hearing 68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. 68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1. 68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:
a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and (b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.
68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.
After not receiving any communications from the Applicant or a new lawyer who would represent him in this matter, I am satisfied that the actions of the Applicant suggests that his claim for accident benefits were without merit and as such are frivolous and vexatious in nature, as argued by the Insurer.
Therefore, for the reasons given above, I now find and order that this application be dismissed.
EXPENSES:
I am satisfied that the Insurer did expend time and resources towards this Application for Arbitration.
I have reviewed the claim for expenses by the Insurer and find that the claimed hours of effort spent by counsel and her law clerk is acceptable and when the appropriate Legal Aid Tariff is applied, the total of $560.00 plus HST ($632.80) is also reasonable.
Accordingly, Mr. Cherykovskiy shall pay the legal expenses of Chartis Insurance Company of Canada a total of $632.80 inclusive of disbursements and taxes.
April 11, 2016
Charles Matheson Date
Arbitrator
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 109
FSCO A13-012776
BETWEEN:
STANISLAV CHERYKOVSKIY
Applicant
and
CHARTIS INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
This Application for Arbitration is dismissed.
The Applicant shall pay Chartis Insurance Company of Canada’s legal expenses of $632.80 inclusive of disbursements and taxes.
April 11, 2016
Charles Matheson
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective November 1, 1996, Ontario Regulation 403/96, as amended.