Neutral Citation: 2016 ONFSCDRS 140 FSCO A14-001163

BETWEEN:

XUAN HUNG LUONG Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Cindy Dymond Heard: In person at ADR Chambers on April 11, 2016

Appearances: Mr. Xuan Hung Luong did not participate Mr. Douglas Mac Con participated for Dominion of Canada General Insurance Company

Issues:

The Applicant, Mr. Xuan Hung Luong, was injured in a motor vehicle accident on February 7, 2013, and sought accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Luong, through his then 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 Preliminary Issue Hearing are:

Should Mr. Luong’s Application for Arbitration be dismissed?
Is Mr. Luong required to pay Dominion’s expenses in respect of his Arbitration and, if so, in what amount?

Result:

Mr. Luong’s Application for Arbitration is dismissed.
Mr. Luong is required to pay Dominion’s expenses in respect of his Arbitration in the amount of $400.00 all inclusive.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion was originally scheduled and held on May 5, 2015. Mr. Luong did not attend and nor did his representative. When reached by telephone, the representative of record indicated that he was unaware that he was still on the record as he had been advised that the Applicant had retained new counsel approximately one year earlier. At this Pre-Hearing discussion, I scheduled a resumption for May 28, 2015 and sent notice to all parties and counsel.

The Pre-Hearing discussion was resumed on May 28, 2015. At that time, Mr. Luong attended with his original representative of record. He also attended with new counsel, who never completed the paperwork to be listed as representative of record and who did not respond to subsequent enquiries from ADR Chambers to do so. At this resumption, all parties agreed to a Hearing date of April 11, 2016.

At the request of Mr. Mac Con, another resumption was scheduled to be held February 23, 2016 in order to deal with outstanding production requests and notice sent to all parties on February 16, 2016. He indicated that he had not received any productions or any response to his production requests.

The Pre-Hearing discussion was again resumed on February 23, 2016. Mr. Luong did not attend, nor did anyone attend on his behalf. At that time, I left a detailed voicemail at Mr. Luong’s last known telephone number advising him that he was required to attend the Hearing scheduled for April 11, 2016 whether or not he had counsel, and that according to our records he was now unrepresented.

No response was received. The Applicant did not attend, did not provide productions and did not request an adjournment. Nor did anyone do so on his behalf.

Mr. Mac Con requested that we schedule a Preliminary Issue Hearing to bring a Motion to dismiss the Application for Arbitration with costs. The Preliminary Issue Hearing was scheduled to take place on the original Hearing date of April 11, 2016, since the Applicant had knowledge of this date, whether or not he received any of my subsequent letters or voicemail or those from Mr. Mac Con, and so he could be expected to attend if he intended to pursue his Application for Arbitration.

Several registered letters to Mr. Luong at his last known address from ADR Chambers have been undelivered and marked returned to sender. Nonetheless, Mr. Luong agreed to the Hearing date of April 11, 2016 at the resumption of the Pre-Hearing which he attended on May 28, 2015. I also left a detailed voicemail on February 23, 2016 advising Mr. Luong of the contents of my letter of the same date including the information that the Preliminary Issue Hearing was peremptory and that his Application for Arbitration could be dismissed with costs if he did not attend on April 11, 2016. A Settlement Officer from ADR Chambers also made contact with Mr. Luong by telephone prior to the April 11, 2016 Preliminary Issue Hearing. At no time did Mr. Luong provide ADR Chambers or counsel for Dominion with any updated address, although he was requested by voicemail to do so.

At the Preliminary Issue Hearing held on April 11, 2016, the Insurer asked that the Application Arbitration be dismissed. Since Mr. Luong did not appear at most of the proceedings, including the Preliminary Issue Hearing scheduled for his original Arbitration Hearing date, did not reply to enquiries from me or from Mr. Mac Con, did not provide updated contact information, and produced no evidence at any time to support his claim, the Application for Arbitration is dismissed.

EXPENSES:

There has been a Pre-Hearing and three resumptions in this matter, including the final Preliminary Issue Hearing on April 11, 2016. Mr. Mac Con has requested a cost award due to the number of scheduled and resumed discussions he prepared for and attended on behalf of Dominion. I award Dominion expenses in the amount of $400.00 all inclusive. I consider this amount to be reasonable in the circumstances.

May 16, 2016

Cindy Dymond Arbitrator

Date

Financial Services Commission of Ontario