Mentore Gregory v. Royal & SunAlliance Insurance Company of Canada, 2016 ONFSCDRS 18

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

Neutral Citation: 2016 ONFSCDRS 18

FSCO A14-000194

BETWEEN:

MENTORE GREGORY

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Arbitrator Chuck Matheson

Heard: By written submissions due on December 15, 2015

Appearances: No one appeared for Mr. Mentore Gregory Ms. Sharon Dagan appeared for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Mr. Mentore Gregory, was injured in a motor vehicle accident on April 10, 2011. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal & SunAlliance”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Gregory applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this Motion is:

Should the Application for Arbitration be dismissed, forthwith?
If the Application for Arbitration is dismissed, should the Applicant be responsible for the legal costs of Royal & SunAlliance?

Result:

The Application for Arbitration is dismissed, forthwith.
The Applicant shall pay costs in the amount of $1,870.32, inclusive of HST, to the Insurer, forthwith.

EVIDENCE AND ANALYSIS:

Background

The Applicant had hired Alam Law Office as his legal representative in this matter. A Motion was heard on December 1, 2015, where the Applicant’s law firm wanted off the record as the client-solicitor relationship had broken down to the point where the Applicant would not communicating with the law firm. There was a Hearing set to be commenced in this matter in February 8, 2016 to which Alam Law wanted to, among other things, afford the Applicant an opportunity to hire a new law firm to represent him at this Arbitration. Alam Law was successful in being removed from the record.

The Insurer then presented this Motion to which the Insurer requested that I dismiss this application with costs, forthwith. I decided to allow for some time for the Applicant to show any positive objective criterion, and gave the Applicant a further 15 days from my letter to contact ADR Chambers or the Insurer and advise us of his intentions in regards to the pending Arbitration.

Decision

In my Pre Hearing letter of December 2, 2015, I gave the Applicant the clear opportunity to either contact the Insurer or ADR Chambers so he may be afforded time to hire another law firm to represent him. I also clearly explained to the Applicant that if he did not communicate with either the Insurer or ADR Chambers before December 15, 2015, that I would be forced to accept the Insurer’s arguments that this application had been abandoned because it was without merit and therefore frivolous and vexatious in nature.

I have checked with both the Insurer and ADR Chambers and have found that the registered letter had been delivered to the Applicant’s last known address and that neither party had heard back from the Applicant by December 15, 2015.

The Dispute Resolution Practice Code which speaks to the dismissal of an Arbitration without a Hearing is 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.

I am satisfied that the Applicant knew of this proceeding, and the consequences for not participating again at this proceeding.

I am satisfied that the actions of the Applicant over the past 12 months have given proper grounds for dismissal in Rule 68.1.

Therefore, for the reasons given above, I now find and order that this Application for Arbitration be dismissed, forthwith.

EXPENSES:

Under section 68.4 of the Dispute Resolution Practice Code, above, I am able to address and attach any conditions to the dismissal of this Application for Arbitration, to which I shall apply section 75 of the Dispute Resolution Practice Code which reads as follows:

75.1 An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are found in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code. 75.2 The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with Rule 76;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

(f) whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation; and

(g) whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation.

In this instant case, the Insurer is requesting a total of $4,260.40 in costs for this file, inclusive of HST, in accordance with the applicable legal aid tariffs. I am relying on section 75(2)(d) to attach a condition of payment of expenses in this matter.

I remain unconvinced, that the amount of time spent on a file in which the Applicant has been absent throughout the entire Pre-Hearing process could invoke such high hours of effort on the Insurer’s part. Therefore, I now find and order that the Applicant shall pay the costs in the amount of $1,870.32, inclusive of HST, to the Insurer, forthwith.

January 15, 2016

Chuck Matheson Arbitrator

Date