Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 176

FSCO A14-006734

BETWEEN:

DIANA THOMPSON

Applicant

and

AVIVA CANADA INC.

Insurer

Before: Arbitrator Charles Matheson

Heard: By teleconference on May 26, 2016

Appearances: Ms. Diana Thompson did not participate Ms. Lyndra Griffith participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. Diana Thompson, was injured in a motor vehicle accident on July 4, 2012. She applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Thompson, via her legal counsel, 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 Ms. Thompson’s Application for Arbitration be dismissed?
Is Ms. Thompson liable to pay Aviva’s legal expenses of this Motion?

Result:

Ms. Thompson’s Application for Arbitration is dismissed.
Ms. Thompson shall pay expenses to Aviva in the amount of $500.00, inclusive of all fees, disbursements and taxes, payable prior to Ms. Thompson pursuing any further benefits from this accident.

EVIDENCE AND ANALYSIS:

Background

The Applicant did not participate in the Pre-Hearing resumption scheduled by ADR Chambers on April 22, 2016.

During the April 22, 2016 Pre-Hearing, two Motions were heard, one to re-open the file, and the second to remove counsel for the Applicant from the record.

On the first Motion, which was granted, I heard that the Applicant did not execute the settlement documents and as such, the file was not settled and needed to proceed.

On the second Motion, which was also granted, I heard that the client-solicitor relationship had deteriorated and counsel was unable to continue to represent the client.

In my April 22, 2016 Pre-Hearing letter, I made the Applicant aware that she is now considered self-represented and as such, she had the option to seek other representation or continue to be self-represented at the next Pre-Hearing which was set for May 26, 2016.

I also stated the following: “The Applicant must understand that if she or her new advocate do not appear, or attend at the Pre-Hearing Arbitration, a Motion for dismissal may be sought, with costs being assessed even in your absence.”

The April 22, 2016 letter was sent via registered mail to her last known address as were the previous Pre-Hearing letters. The registered letter was not returned to ADR Chambers.

The Applicant did not respond to the April 22, 2016 letter.

Decision

The Pre-Hearing convened via teleconference as scheduled at 10:30 a.m. on May 26, 2016. The Applicant did not attend. I then waited for 10 minutes before allowing the Insurer to commence their Motion to dismiss the Application for Arbitration with costs.

Insurer’s Counsel pointed out that Rule 68 of the Dispute Resolution Practice Code allowed for the dismissal of an Application for Arbitration without a Hearing.

Rule 68 of the Code 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.

With no other evidence to the contrary, I am convinced that the letter sent to the Applicant was received and the consequences for not participating in this Pre-Hearing and subsequent Motion were made clear to the Applicant.

I agree with Insurer’s Counsel that the Applicant’s choice of not participating at this proceeding was fatal to her case, as she did not advance her case with any positive objective evidence or exercise the options of retaining other legal counsel. I can only come to the conclusion that the Applicant abandoned her claim or the claim was frivolous or vexatious in nature. Accordingly, I now dismiss this Application for Arbitration.

EXPENSES:

The Insurer did not request costs associated with the Pre-Hearings and subsequent Motion.

Costs of $500.00, inclusive of all fees, disbursements and taxes, was requested by Insurer’s Counsel, which appears to be a reasonable amount considering the effort the Insurer had exercised to attain a settlement then to address the series of Motions. Accordingly, Ms. Thompson shall pay expenses to Aviva in the amount of $500.00, inclusive of all fees, disbursements and taxes, payable prior to Ms. Thompson pursuing any further benefits from this accident.

June 20, 2016

Charles Matheson Arbitrator

Date