Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 13

FSCO A14-002108

BETWEEN:

KIRUSHANTHY SELVARAJAH

Applicant

and

NORDIC INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Arbitrator Anne Morris

Heard: By teleconference on August 11, 2015 and by written submissions due November 2, 2015

Appearances: Ms. Kirushanthy Selvarajah did not participate Ms. Emma Duggan participated for Nordic Insurance Company of Canada

Issues:

The Applicant, Ms. Kirushanthy Selvarajah, claims to have been injured in a motor vehicle accident on February 13, 2011. She applied for and received statutory accident benefits from Nordic Insurance Company of Canada (“Nordic”) payable under the Schedule.¹ Nordic terminated certain benefits and Ms. Selvarajah, through her then representative, applied for mediation and then arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the time this Application was filed, the Applicant was represented by Levy Law Office. A Response was received from the Insurer in March 2014.

The issues in this Motion are:

Should this Application for Arbitration be dismissed without a Hearing pursuant to Rule 68 of the Dispute Resolution Practice Code (“the Code”) because it is frivolous, vexatious or was commenced in bad faith?
Should the Applicant be liable to pay Nordic’s expenses in respect of this Application for Arbitration?

Result:

1. The Application for Arbitration is dismissed.

The Applicant is to pay expenses to Nordic in the amount of $1,500.00, inclusive of disbursements and all applicable taxes.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion in this case was held on June 26, 2015. Ms. Maka Metreveli, a licensed paralegal with Levy Law Office, advised that she had been unable to communicate with the Applicant and that she intended to bring a Motion requesting that she be removed as representative of record.

I wrote to the Applicant on July 2, 2015 advising that I was scheduling a Motion for August 11, 2015, at the request of the Insurer. If she attended, the Motion would proceed instead as a Pre-Hearing. If she did not attend, the Insurer would request that the Application for Arbitration be dismissed with expenses payable to the Insurer.

I convened the Motion by teleconference on August 11, 2015 at 1:00 p.m. Ms. Metreveli attended for the purpose of requesting to be removed as representative of record for the Applicant. Ms. Duggan represented the Insurer. I was unable to reach Ms. Selvarajah at 1:00 p.m. I was satisfied on the basis of the materials filed that the requirements of Rule 9.7 of the Code had been met and that there had been a breakdown in the representative/client relationship between Ms. Metreveli and the Applicant as evidenced by her inability to receive instructions from her. I granted Ms. Metreveli’s request to be removed as the Applicant’s representative of record effective August 11, 2015.

While I was unable to reach the Applicant at 1:00 p.m. on August 11, 2015, I was able to speak to a person at the telephone number which we have for the Applicant later that day. That person confirmed Ms. Selvarajah’s address and telephone number. I asked that Ms. Selvarajah contact me but she did not do so and has not done so to date.

On August 20, 2015, the Insurer requested in writing that I dismiss the Applicant’s Application for Arbitration pursuant to Rule 68 of the Code. Pursuant to Rule 68, an Arbitrator may dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. The Insurer also requested that I order that the Applicant pay part of the Insurer’s expenses in the amount of $1,500.00 in the event that the Application for Arbitration was dismissed.

Because Ms. Selvarajah appears to reside at the address contained in the records of the Dispute Resolution Group, I wished to speak to her to ensure that she understood the consequences of her non-participation in this process. I tried to call several times but was unable to leave a message. On September 9, 2015, I was able to leave a message with a person who answered the telephone and who advised that she would pass my message that Ms. Selvarajah should call me. I have not heard from her.

I attempted one last time to call the Applicant on October 4, 2015, on the weekend, thinking that I might reach her. I was unable to do so.

On October 7, 2015, I wrote to Ms. Selvarajah at her last known residential address and advised her that it was my intention to grant the Insurer’s request for a dismissal unless she provided reasonable grounds why I should not do so. I also advised her that I would consider the Insurer’s request that she pay part of their expenses in the amount of $1,500.00. I advised her in accordance with Rule 68 that she had until November 2, 2015 to serve upon the Insurer and to file with me, any written submissions which she wished me to consider as to why I should not dismiss the proceedings and any other concerns or issues which she may have. I advised her that if I did not receive written submissions by November 2, 2015, her Application for Arbitration could be dismissed without further notice.

To date, I have received no submissions or response, written or otherwise, from Ms. Selvarajah.

I do not have sufficient evidence before me to conclude that Ms. Selvarajah’s Application was commenced in bad faith. She has not, however, participated in the Pre-Hearing process and has not responded to attempts to communicate with her. I infer from this that she has no interest in pursuing her claims. It would be unreasonable to force Nordic to expend more time, effort, or expense in this matter. I conclude on the evidence which I do have that the proceeding has now become frivolous or vexatious and I grant Nordic’s request to dismiss this Application for Arbitration pursuant to Rule 68 of the Code.

EXPENSES:

I find that Nordic, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses.

Nordic has requested expenses in the amount of $1,500.00. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable. In regard to “reasonable,” I note the following.

In Reid and ING Insurance Company of Canada,² Arbitrator Killoran held with respect to arbitration legal expenses that:

The relationship between insurer and insured is a contractual one. The insured is entitled to access the dispute resolution process at FSCO as a result of that contract. The Insurance Act and its regulations must be interpreted in such a way as to uphold the protective and remedial nature of the legislation of which it follows.

In Halim and Security National Insurance Co./Monnex Insurance Mgmt. Inc., Director’s Delegate, Lawrence Blackman held:³

I find that these expense criteria do not exist in a vacuum, segregated from the overall legislative intent. Rather, the criteria are defined by, and help define the broader, overarching legislative intentions, including consumer protection, as set out by the Supreme Court of Canada in Smith v. Co-Operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, which encompasses a fair and reasonable measure of access to justice.

I also note, however, in this circumstance, that Ms. Selvarajah’s failure to participate in the proceedings has caused delay and unnecessary expense to the Insurer.

I find the amount requested by the Insurer to be reasonable in the circumstances and I therefore fix Nordic’s reasonable expenses at $1,500.00, including disbursements and all applicable taxes. I find this amount to be reasonable given the time required to review the file, obtain instructions, prepare and file a Response, and prepare for and attend the proceedings.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.1.8, as amended, Ms. Selvarajah is ordered to pay Nordic’s expenses in the amount of $1,500.00 (inclusive of all costs, disbursements and taxes).

January 13, 2016

Anne Morris

Arbitrator

Date