Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 165
FSCO A13-015451 and A13-015452
BETWEEN:
AARON DE SILVA and SEAN DE SILVA
Applicants
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Thérèse Reilly
Heard: By telephone conference call on May 12, 2016 with submissions completed on May 13, 2016
Appearances: Mr. Aaron De Silva and Mr. Sean De Silva did not participate
Ms. Laya Witty participated for Mr. Aaron De Silva and Mr. Sean De Silva
Ms. Sarah Reisler participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicants, Mr. Aaron De Silva and Mr. Sean De Silva, were injured in a motor vehicle accident on April 14, 2010 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicants, through their 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 Motion are:
Should the Kanevsky Law Office be removed as representative of record for the Applicants?
Should Mr. Aaron De Silva’s and Mr. Sean De Silva’s Applications for Arbitration be dismissed with or without costs?
Result:
The Kanevsky Law Office is removed as representative of record for the Applicants.
Mr. Aaron De Silva’s and Mr. Sean De Silva’s Applications for Arbitration are dismissed with costs. Costs are awarded in the amount of $750.00 (inclusive of all costs, disbursements and taxes) for each Application for Arbitration and are payable jointly by
Mr. Aaron De Silva and Mr. Sean De Silva.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion for both files was held on December 3, 2015. Both Applicants attended the Pre-Hearing discussion as did their representative of record. At the Pre-Hearing discussion, the parties scheduled a Preliminary Issue Hearing for April 4, 5, and 6, 2016 and set a Hearing date for both files for November 15, 16, and 17, 2016.
A resumption of the Pre-Hearing for both matters was then scheduled for March 31, 2016 to be held by telephone at 9:00 a.m. The parties were provided notice of the resumption of the Pre-Hearing by ADR Chambers. The resumption of the Pre-Hearing proceeded on March 31, 2016 by telephone with both representatives in attendance. The Applicants did not attend the resumption of the Pre-Hearing.
The representative for the Applicants advised at the resumption of the Pre-Hearing that despite their efforts, they have been unable to contact the Applicants and would be bringing a Motion to be removed from the record due to a breakdown in the solicitor-client relationship.
The representative for the Insurer advised that based on the failure of the Applicants to attend the resumption of the Pre-Hearing and the inability of the Applicant’s representative to contact the Applicants, it would be seeking an Order dismissing Mr. Aaron De Silva’s and Mr. Sean de Silva’s Applications for Arbitration. The parties further agreed at the resumption of the Pre-Hearing to adjourn the Preliminary Issue Hearing and schedule a Motion to address the request for an Order to remove the representative from the record and an Order for a dismissal of the Applications for Arbitration. The Motions were scheduled for May 12, 2016 for 9:30 a.m. to be held by teleconference arranged by ADR Chambers.
On March 31, 2016, I advised the parties that at the resumption of the Pre-Hearing held on March 31, 2016, the Preliminary Issue Hearing scheduled for April 4, 5, and 6, 2016 was adjourned and to be rescheduled to a later date. I advised further that the Applicant’s representative had stated it would be seeking an Order to be removed from the record and the Insurer was also to seek an Order for a dismissal of the Applications for Arbitration.
On April 6, 2016, the Applicant’s representative served and filed a Motion Record on all parties outlining their efforts to reach the Applicants for the resumption of the Pre-Hearing and the then scheduled Preliminary Issue Hearing and is by way of Motion seeking an Order to be removed from the record as their representative.
On April 6, 2016, the Insurer by letter advised each Applicant that they would be seeking a dismissal of the Applications for Arbitration at the Motion scheduled for May 12, 2016. The Insurer also advised each Applicant that it would be seeking a dismissal of the Applications for Arbitration under Rule 68 of the Dispute Resolution Practice Code (“the Code”) with costs payable by the Applicants jointly.
On April 20, 2016, I advised the Applicants by letter sent by registered and regular mail that a Motion by their representative to be removed as their representative of record was scheduled to be heard by teleconference call arranged by ADR Chambers on May 12, 2016 at 9:30 a.m. I further advised the Applicants that the Insurer is seeking an Order to dismiss their Applications for Arbitration. Both Motions would be heard on May 12, 2016 at 9:30 a.m. Mr. Aaron De Silva and Mr. Sean De Silva were advised to contact me by no later than May 12, 2016 at 9:30 a.m. to outline how they wished to proceed with their Applications for Arbitration. If no response was received from them by May 12, 2016, I would assume that they did not have any interest in proceeding with the Applications for Arbitration. They were advised that attendance by them or their representative at the May 12, 2016 Motion was mandatory.
Further, the Applicants were advised that if they failed to attend the Motions, their Applications for Arbitration could be dismissed with costs under Rule 68 of the Code which permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith, providing written notice has been given to the parties of the intention to dismiss the proceedings.
I advised each Applicant that my letter would serve as sufficient notice of the proceeding.
They were further advised that the Arbitrator may order one party to pay the other party’s expenses. An excerpt from the Expense Regulation found in section F of the Code was outlined to each Applicant in my letter.
No reply to my letter was received from either Applicant.
Request to be Removed from the Record
The Motion to be removed from the record proceeded on May 12, 2016 at 9:30 a.m. by telephone conference call as scheduled. Ms. Laya Witty, counsel, participated on behalf of the Applicants. Ms. Sarah Reisler, counsel, represented the Insurer. The Applicants did not attend the Motion. I did not receive notice from the Applicants, prior to the Motion, that they wished to attend the Motion or obtain new representation. The Insurer did not oppose the Motion.
The Applicant’s representative advised at the Motion on May 12, 2016 that they had been unable to contact the Applicants despite their diligent efforts and requested the Order to be removed from the record.
Based on the evidence presented at the Motion, I was satisfied that notice had been provided under Rule 9.7 of the Code and due to a material breakdown in the solicitor client relationship, I granted the Order that the representative be removed as the representative of record for each Applicant. As a result, Mr. Aaron De Silva and Mr. Sean De Silva became self-represented.
Result:
The Kanevsky Law Office is removed as representative of record for each of the Applicants.
Motion for a Dismissal of the Applications for Arbitration
The Insurer then brought its Motion for a dismissal of the Applications for Arbitration under Rule 68 of the Code with costs on the basis of the failure of the Applicants to attend the resumption of the Pre-Hearing, the resulting adjournment of the Preliminary Issue Hearing and failure of the Applicants to communicate with their legal representative with respect to their Applications for Arbitration.
I am satisfied that all correspondence, including the Notices of Hearing, was sent to the address of each Applicant as shown in the Commission’s Records. I am satisfied that the Applicants had notice of the Motions and the proceedings and that all the notices provided complied with the requirements set out in Rule 9.1(c) and 9.7 of the Code and s. 7(1) of the Statutory Powers Procedures Act. I am satisfied the Applicants had ample notice and opportunity to obtain representation and chose to not do so. In reliance on the notices provided and failure of the Applicants to communicate with her representative, and in reliance on Rules 68.1, 68.2 and 68.3 of the Code, the Applications for Arbitration are dismissed.
Result:
Mr. Aaron De Silva’s and Mr. Sean De Silva’s Applications for Arbitration are dismissed.
EXPENSES:
At the Motion on May 12, 2016, the Insurer confirmed it was seeking costs. On May 13, 2016, the Insurer submitted a Bill of Costs and advised in writing that it is seeking costs in the amount of $12,049.86 or $6,024.93 per Applicant. A review of the Bill of Costs for each file reveals that the Bill of Costs includes the $3,000 filing fee for each file.
The Insurer submits costs should be awarded costs based on criteria under Rule 75.2 of the Code including:
The Insurer was successful as the Applications for Arbitration are dismissed.
The Insurer, by letter dated December 8, 2015, made an Offer to Settle both claims on a without cost basis pursuant to Rule 76 of the Code. 3. The Applicants’ conduct resulted in a last-minute adjournment of the Preliminary Issue Hearing and this tended to prolong, obstruct or hinder the proceeding. 4. The Arbitration proceedings themselves were improper as the Applicants may not have been involved in an “accident” although this was to be decided at the adjourned Preliminary Issue Hearing.
With respect to the $3,000.00 filing fee, no provision was outlined under the Expense Regulation that would allow recovery of the $3,000.00 filing fee and as such I am not allowing any costs for this amount. Based on the attendances by the Insurer at a Pre-Hearing discussion, a resumption of the Pre-Hearing by telephone, the Motion by telephone, some preparation costs of the Arbitration and this Motion, and the criteria outlined above, I am prepared to order costs in the amount of $ 750.00 for each file payable jointly by the Applicants (inclusive of all costs, disbursements and taxes).
June 13, 2016
Thérèse Reilly Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 165
FSCO A13-015451 and A13-015452
BETWEEN:
AARON DE SILVA and SEAN DE SILVA
Applicant
and
STATAE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
The Kanevsky Law Office is removed as representative of record for the Applicants.
Mr. Aaron De Silva’s and Mr. Sean De Silva’s Applications for Arbitration are dismissed with costs. Costs are awarded in the amount of $750.00 (inclusive of all costs, disbursements and taxes) for each Application for Arbitration and are payable jointly by
Mr. Aaron De Silva and Mr. Sean De Silva.
June 13, 2016
Thérèse Reilly Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.