Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 110

FSCO A14-009908

BETWEEN:

NABIL KARAKRA

Applicant

and

AVIVA CANADA INC.

Insurer

Before:

Arbitrator Charles Matheson

Heard:

By teleconference call on March 16, 2016

Appearances:

Mr. Nabil Karakra did not participate

Ms. Jessica Bacopulos participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Nabil Karakra, was injured in a motor vehicle accident on January 30, 2012. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Aviva terminated some medical benefits and income replacement benefits. The parties were unable to resolve their disputes and Mr. Karakra applied for a mediation and 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 Applicant’s Application for Arbitration be dismissed?
Is the Applicant liable to pay Aviva’s expenses in respect of this Arbitration?

Result:

The Applicant’s Application for Arbitration is dismissed.
The Applicant is liable to pay Aviva’s expenses in the amount of $500.00, payable when the Applicant reactivates any other further claims in regards to this accident.

EVIDENCE AND ANALYSIS:

Background

In a Pre-Hearing discussion held on February 2, 2016, Applicant’s Counsel moved to be removed from the record. After listening to the evidence, it was clear that the Applicant had not communicated with his lawyer in a considerable space of time and had moved out of province.

It was then ordered that the firm representing the Applicant would be removed from the record as of the date of the Pre-Hearing letter.

The February 2, 2016 Pre-Hearing letter, which was delivered via registered mail, to the two last known address of the Applicant, listed the Applicant’s obligations with regard to the Arbitration process as he is now considered self-represented.

Further, it outlined the consequences of not participating at the next scheduled Pre-Hearing via teleconference.

Hearing

Insurer’s Counsel waited for 5 minutes before asking for the Hearing to commence, which was granted. Counsel pointed out that the Applicant was not present nor was counsel representing him.

At this point, Insurer’s Counsel moved that I dismiss the Application for Arbitration on the grounds that there was no evidence the Applicant had fulfilled his burden of proof on the issues being claimed in the Application for Arbitration or as outlined in subsequent Pre-Hearing letters.

Insurer’s Counsel then requested that a nominal fee for costs be assessed, as the Insurer admittedly did not provide me with their outline of costs and expenses, but did show the Insurer’s Counsel made appearances and incurred preparation time costs for two Pre-Hearings.

Reasons

In the Pre-Hearing letter of February 2, 2016, the Applicant had the opportunity to call ADR Chambers or the Insurer prior to the resumption of the Pre-Hearing on March 16, 2016.

As ADR Chambers, this Arbitrator and the Insurer have not heard from the Applicant within the 5 weeks between the Pre-Hearings, I can only conclude from these actions that the Applicant has abandoned the claims within this Application for Arbitration. Accordingly, I must also recognize that the application was either frivolous or vexatious, as the Applicant has not adduced any positive objection evidence that would favour his position.

Rule 68 of the Dispute Resolution Practice Code allows an Arbitrator to dismiss an Application for Arbitration with costs. It 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.

For the above reasons, I now find and order that the Applicant’s Application for Arbitration be dismissed.

EXPENSES:

In regards to costs, I do recognize that there is a certain amount of preparation time for a file and a two hour time slot for each Pre-Hearing discussion set aside by the parties. With the Legal Aid Tariff taken into account of $100.00 per hour for counsel, I shall award $250.00 per Pre Hearing, or a total of $500.00, inclusive of disbursements and all applicable taxes, payable when the Applicant reactivates any other further claims in regards to this accident.

April 11, 2016

Charles Matheson

Arbitrator

Date