Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 20
FSCO A15-000459
BETWEEN:
SAKTHIVEL SOMASUNDRAM
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Arbitrator Marshall Schnapp
Heard: By telephone conference call on December 3, 2015
Appearances: Mr. Sakthivel Somasundram did not participate
Ms. Karla Gnanasegaram participated for Aviva Canada Inc.
Issues:
The Applicant, Mr. Sakthivel Somasundram, was injured in a motor vehicle accident on March 25, 2013 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant 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 Sakthivel Somasundram’s Application for Arbitration be dismissed?
Is Aviva entitled to its expenses in preparing for and attending the Arbitration proceedings from Sakthivel Somasundram, and if so, in what amount?
Result:
Sakthivel Somasundram’s Application for Arbitration is dismissed.
Aviva is entitled to expenses in the amount of $750.00.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held on August 20, 2015, at which time Sakthivel Somasundram failed to appear.
On August 25, 2015, I sent a letter to the Applicant at his last known addresses to advise him of the missed Pre-Hearing discussion. The letter provided Mr. Somasundram notice that another Pre-Hearing discussion was scheduled for November 9, 2015 at ADR Chambers. The Applicant was further advised that his participation and attendance at the Pre-Hearing discussion was mandatory if he wanted to proceed with his Application for Arbitration.
The resumption of the Pre-Hearing proceeded on November 9, 2015 and again Mr. Somasundram failed to attend. During the Pre-Hearing I removed Taylor, Steinberg & Baber Professional Corporation as his representative in this Application for Arbitration.
On November 11, 2015, I sent a letter to Mr. Somasundram at his last known address to advise him of the second missed Pre-Hearing discussion. The letter provided Mr. Somasundram with an Attendance Notice, setting a date of December 3, 2015 at 9:00 a.m. by telephone conference call, to hear the issues identified in the Application for Arbitration. The letter also advised Mr. Somasundram that should he not contact our office or participate in any further proceedings, I would dismiss his applications and consider Aviva’s request for expenses.
The Dismissal
For the reasons that follow, Mr. Somasundram‘s Application for Arbitration is dismissed.
As of December 3, 2015, I was unable to contact Mr. Somasundram, he had yet to contact ADR Chambers as requested, and had not participated in two Pre-Hearing discussions.
I am satisfied that Mr. Somasundram was given notice of all of the proceedings related to his Application for Arbitration at his last known address and that he was attempted to be reached by telephone at his last known telephone number.
Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“DRPC”), the Arbitration Hearing proceeded in his absence.
Mr. Somasundram bears the onus of proving entitlement to the claimed benefits. As he did not appear at the Hearing and no evidence was presented to support his claims, the Applications for Arbitration is dismissed.
EXPENSES:
Aviva is awarded expenses in the amount to $750.00 from Mr. Somasundram for having to prepare for and participate in the Arbitration proceedings. The amount is payable forthwith.
In making this award, I have considered Rules 75.2 and 78(1) of the DRPC and found that the amount of to $750.00 payable by Mr. Somasundram is reasonable and appropriate.
January 15, 2016
Marshall Schnapp
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 20
FSCO A15-000459
BETWEEN:
SAKTHIVEL SOMASUNDRAM
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Application for Arbitration is dismissed.
Mr. Somasundram shall pay $750.00 in expenses to Aviva.
January 15, 2016
Marshall Schnapp
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.