Itzel Contreras Rodriguez v. Belair Insurance Company Inc., 2016 ONFSCDRS 128

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 128

FSCO A15-004339

BETWEEN:

ITZEL CONTRERAS RODRIGUEZ

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on April 8, 2016

Appearances: Ms. Itzel Contreras Rodriguez, Applicant, did not participate

Mr. Ziv Tsimerman, counsel, did not participate

Ms. Michelle Kemper, counsel, participated for Belair Insurance Company Inc.

Issues:

The Applicant, Ms. Itzel Contreras Rodriguez, was injured in a motor vehicle accident on December 15, 2013 and sought accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Ms. Contreras Rodriguez, through her 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 Hearing are:

Should Ms. Contreras Rodriguez’s Application for Arbitration be dismissed?
Should Belair be awarded expenses concerning this Application for Arbitration?

Result:

Ms. Contreras Rodriguez’s Application for Arbitration is dismissed.
Ms. Contreras Rodriguez will pay $500.00 to Belair for expenses as set out in the Order.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on November 24, 2015, in person at the offices of ADR Chambers. Ms. Contreras Rodriguez failed to appear at the scheduled Pre-Hearing.

On November 24, 2015, I sent a letter by registered and regular mail to Ms. Contreras Rodriguez at her last known address to advise her of the missed Pre-Hearing discussion. The letter provided Ms. Contreras Rodriguez with an Attendance Notice, setting a date of April 8, 2016 at 10:00 a.m., to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I would dismiss her Application for Arbitration and consider Belair’s request for expenses.

The Dismissal

For the reasons that follow, Ms. Contreras Rodriguez’s Application for Arbitration is dismissed.

As of April 8, 2016, I was unable to contact Ms. Contreras Rodriguez. The registered letter sent to her last known address on November 24, 2015 through Canada Post showed through the tracking number that the letter had not been picked up by Ms. Contreras Rodriguez. She had yet to contact her legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

Ms. Contreras Rodriguez’s lawyer of record, Mr. Ziv Tsimerman of Reybroek Barristers Professional Corporation, was not in attendance at the scheduled Arbitration proceeding on April 8, 2016. I called Mr. Tsimerman at his business number shortly after 10:00 a.m. on April 8, 2016 but was not able to speak with him. I left a message for him to contact me at ADR Chambers regarding the scheduled Arbitration proceeding for Ms. Contreras Rodriguez but did not hear back from him on this matter.

I am satisfied that Ms. Contreras Rodriguez was given notice of all of the proceedings related to her Arbitration at her last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in her absence.

Ms. Contreras Rodriguez bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Application for Arbitration is dismissed.

EXPENSES:

Belair requests expenses in this proceeding be awarded against Ms. Contreras Rodriguez in the amount of $500.00, inclusive of HST. Ms. Contreras Rodriguez has failed to participate in a scheduled Pre-Hearing, and an Arbitration Hearing. She has not advanced her Application for Arbitration and has not demonstrated an interest in pursuing this Application for Arbitration.

For the reasons I have noted above, I agree with Belair’s request and find it reasonable that expenses be awarded in the amount of $500.00, inclusive of HST, against Ms. Contreras Rodriguez in this Arbitration proceeding.

April 25, 2016

Kimberly Parish

Arbitrator

Date