DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator H. Michael Kelly, Q.C. Heard: In person at ADR Chambers on October 19, 2015 Appearances: Mr. Cameron Frederick did not participate Ms. Stacey A. Morrow participated for the Coachman Insurance Company

Issues:

The Applicant, Mr. Cameron Frederick, was injured in a motor vehicle accident on September 14, 2012 and sought accident benefits from Coachman Insurance Company (“Coachman”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Frederick, through his 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. Cameron Frederick's Application for Arbitration be dismissed?
Should expenses be awarded in favour of Coachman?

Result:

Mr. Frederick's Application for Arbitration is hereby deemed constructively withdrawn.
Mr. Frederick shall pay to Coachman its expenses fixed in the amount of $600.00 plus HST.

EVIDENCE AND ANALYSIS:

On January 7, 2014, Mr. Frederick filed an Application for Arbitration seeking entitlement to Income Replacement Benefits, Attendant Care Benefits, Costs of Examinations, and Special Award. At the Pre-Hearing on November 17, 2014, a claim for Non-Earner Benefits was added to replace the Income Replacement Benefits claim, and the Applicant's intention to dispute Coachman's characterization of his impairment(s) predominantly as a minor injury coming within the Minor Injury Guideline was also added as an issue.

Mr. Frederick attended the November 17, 2014 Pre-Hearing, with his counsel, Mr. Gary Mazin. The Hearing date was set for October 19 and 22, 2015.

Mr. Frederick was not working at the time of the accident, and was receiving social assistance. On January 20, 2015, a Pre-Hearing, in-person, took place to address Coachman’s motion for production of certain contents of the Applicant’s Ontario Social Assistance file viz. application for social assistance; correspondence and medical records; benefits; the application. Ms. Sharma attended on behalf of Mr. Frederick. Mr. Frederick did not attend. I ordered the requested records be produced and detailed my reasons in my Pre-Hearing letter, dated April 9, 2015. On July 7, 2005, Coachman's counsel, Ms. Morrow, wrote to Mr. Frederick's counsel requesting the said records in compliance with my Order. The records were not provided.

On August 18, 2015, Coachman requested a Pre-Hearing resumption to address Coachman's motion for an order dismissing the Arbitration proceedings, or constructively withdrawing same on the basis of the Applicant's non-compliance with my Order, dated April 9, 2015. The Pre-Hearing resumption was scheduled, on consent, for September 9, 2015 at 9:00 a.m., by teleconference. The Applicant's representative, Mr. Gary Mazin and Mazin & Associates brought a motion to be removed as the Applicant's representative, returnable at the Pre-Hearing resumption on September 9, 2015. The motion was based upon the alleged breakdown in the solicitor/client relationship. I granted the motion for the reasons set out in my Pre-Hearing letter, dated September 19, 2015. Mr. Frederick did not participate in the Pre-Hearing resumption, despite efforts to contact him by telephone from the meeting.

I adjourned the motion for dismissal, with Coachman's consent, to proceed in person as a Preliminary Issue Hearing on October 19, 2015, the date that the Hearing was to commence. I adjourned the full Hearing to a date to be set at the Preliminary Issue Hearing, should Coachman be unsuccessful in its motion for dismissal, My Pre-Hearing letter, dated September 19, 2015, sent to counsel and to Mr. Frederick advised that if Mr. Frederick attended the Preliminary Issue Hearing, the Hearing would proceed as a Pre-Hearing to address, inter alia, the setting of a new Hearing date, and a new date for the Preliminary Issue Hearing. I wanted to afford Mr. Frederick an opportunity to retain new counsel if he so wished. Mr. Frederick did not attend. On October 6, 2015 at 7:45 p.m., I attempted unsuccessfully to contact Mr. Frederick by telephone, to ascertain his intentions with respect to new counsel, and to confirm his intention to attend the Preliminary Issue Hearing on October 19, 2015. I left a call-back number, but received no response.

I am satisfied that Mr. Frederick's failure to comply with my Order of April 9, 2015; his failure to maintain contact with his counsel that resulted in removal of counsel; his failure to personally attend the Pre-Hearing on January 20, 2015 and participate in the Pre-Hearing on September 9, 2015; his failure to respond to my effort to make contact with him by telephone; and failure to attend the Preliminary Issue Hearing on October 19, 2015, collectively demonstrate that he wishes to abandon this Arbitration proceeding. Mr. Frederick has the onus to advance his case and to abide by an Order of the Arbitrator. He has not done so.

I am satisfied that Mr. Frederick was given notice of all the proceedings related to his Arbitration, at his last known address.

I must decide whether dismissal or constructive withdrawal is the appropriate decision. I have decided that constructive withdrawal is the appropriate result. At the Pre-Hearing on November 17, 2014, Mr. Frederick, now age 27, demonstrated a speech impediment that I was advised pre-existed the accident, but allegedly was aggravated by the accident. From the facts disclosed in the motion for removal of counsel, I have reached the conclusion that Mr. Frederick's abandonment of the Arbitration, was primarily influenced by my Order of April 9, 2015, and that his decision to resist compliance may have been influenced by directive from his mother. I have considered the very helpful submissions made on behalf of Coachman, that dismissal is the proper result. However, in the circumstances of this case, I feel that an Order, pursuant to Rule 70(3) of the Dispute Resolution Practice Code, deeming that the Arbitration has been constructively withdrawn, is persuaded.

EXPENSES:

Mr. Frederick shall pay to Coachman expenses of this Arbitration proceeding, fixed in the amount of $600.00 plus HST.

January 4, 2016

H. Michael Kelly, Q.C. Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 2 FSCO A14-000233

BETWEEN:

CAMERON FREDERICK Applicant

and

COACHMAN INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Frederick's Application for Arbitration is hereby deemed constructively withdrawn.
Mr. Frederick shall pay to Coachman costs of the Arbitration, fixed in the amount of $600.00 plus HST.