Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 122
FSCO A13-001021
BETWEEN:
THOMAS MILLER
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A MOTION
Before: Arbitrator Chuck Matheson
Heard: In person at ADR Chambers on March 30, 2016
Appearances: Mr. Thomas Miller did not participate Ms. Sandi Smith participated for Allstate Insurance Company of Canada
Issues:
The Applicant, Mr. Thomas Miller, was injured in a motor vehicle accident on December 4, 2011. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Miller applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this Motion is:
- Should this Application for Arbitration be dismissed?
Result:
- This Application for Arbitration is dismissed.
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 October 8, 2015, with a second Pre-Hearing set for March 30, 2016. Notice of the second Pre-Hearing and consequences for not participating in the process was spelled out to the Applicant.
As the Applicant’s lawyer could not communicate to the Applicant throughout the year of 2015, counsel finally moved to be removed from the record and was granted same at a Pre-Hearing resumption held on March 30, 2016. The Insurer then brought this Motion to dismiss forward and requested that the Application be dismissed without 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 Thomson Rogers law firm went to extra measures as they attempted to communicate with the Applicant in this matter.
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 communication from the Applicant, I am satisfied that the actions of the Applicant suggests that his claim for accident benefits was without merit and as such is 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:
As the Insurer has not requested any expenses in this matter, there is no award for same.
April 25, 2016
Chuck Matheson Date
Arbitrator
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 122
FSCO A13-001021
BETWEEN:
THOMAS MILLER
Applicant
and
ALLSTATE 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.
April 25, 2016
Chuck Matheson
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.