Neutral Citation: 2016 ONFSCDRS 231 FSCO A15-005065

BETWEEN:

AMARJEET BRAR Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Ellen Fry

Heard: By written submissions due August 2, 2016

Appearances: Ms. Amarjeet Brar did not participate Mr. Peter Soltysiak participated for TD General Insurance Company

Issues:

The Applicant, Ms. Amarjeet Brar, was injured in a motor vehicle accident on September 17, 2013 and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Brar, through her 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 the Motion are:

Should the Application for Arbitration be dismissed under Rule 68.1 of the Dispute Resolution Practice Code?
Is the Insurer entitled to its expenses of the Arbitration proceeding?

Result:

The Application for Arbitration is dismissed under Rule 68.1 of the Dispute Resolution Practice Code.
The Insurer is entitled to its expenses of the Arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background

A Pre-Hearing discussion of this case was held on January 25, 2016, resumed on May 30, 2016 and resumed again on July 11, 2016.

At the resumption of the Pre-Hearing discussion on July 11, 2016, I made an Order granting a motion to remove Bartolini, Berlingieri, Barrafato, Fortino LLP from the record as solicitors for Ms. Brar. Ms. Brar was duly informed of this decision.

I then considered a Motion by counsel for the Insurer to dismiss the Arbitration proceeding, with costs. Prior to the resumption on July 11, 2016, counsel for the Insurer filed and served materials in support of this Motion, including personal service on Ms. Brar.

By letter to all parties, dated July 11, 2016, I indicated that if Ms. Brar objected to the dismissal of the proceeding under Rule 68.1 of the Dispute Resolution Practice Code or wished to make written submissions with respect to the dismissal, she had 20 days (i.e. until August 2, 2016) to do so, in compliance with Rule 68.2. I also indicated that in the absence of any written submissions in response to the letter within 20 days, this Arbitration proceeding would be dismissed without further notice. Ms. Brar did not make any written submissions by the deadline of August 2, 2016.

Decision

Ms. Brar was injured in a motor vehicle accident in September 2013 and retained counsel in October 2013 to assist her with her claim against the Insurer. On October 21, 2013, her counsel filed an Application for Accident Benefits on her behalf.

The Affidavit of Paul Barrafato, who was Ms. Brar’s counsel until July 11, 2016, indicates that over the period of more than 2 years since this proceeding was initiated, Ms. Brar has on most occasions been consistently unresponsive to her counsel’s requests for information and her counsel’s communications generally. As a result, on July 11, 2016, I made an Order granting a Motion to remove Bartolini, Berlingieri, Barrafato, Fortino LLP from the record as solicitors for Ms. Brar.

The Affidavit of the Insurer’s counsel indicates that during the same period, Ms. Brar has also failed to attend several examinations as required under section 42 of the Schedule.²

In addition, Ms. Brar did not attend the Mediation in this proceeding and did not make herself available to participate in either the initial Pre-Hearing discussion or either of the two resumptions of the Pre-Hearing discussion.

Rules 68.1 and 68.2 of the Dispute Resolution Practice Code provide as follows:

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

As outlined above, Ms. Brar has on most occasions failed to participate in this proceeding over the period of more than 2 years since the proceeding was initiated. On July 11, 2016, I delivered written notice to all parties as required by Rule 68.2. Ms. Brar did not make any submissions in response to this notice within the required timeframe.

Accordingly, I conclude that this proceeding is either frivolous or vexatious or was commenced by Ms. Brar in bad faith and dismiss the proceeding.

EXPENSES:

The Insurer has requested costs of this proceeding. Subsection 12(2) of the Expense Regulation³ sets out the factors that I am to consider in making a decision on awarding expenses. I will discuss below those of the factors that are relevant in this situation.

Factor 1: Given the fact that I am dismissing this proceeding, the Insurer has been fully successful in the outcome of this proceeding.

Factor 3: As indicated above, I consider that this proceeding is either frivolous or vexatious or was commenced in bad faith.

Factor 6: As indicated above, Ms. Brar failed to submit to several examinations as required under section 42 of the Schedule.

Taking these relevant factors into consideration, the Insurer is entitled to its expenses of this proceeding. The Insurer shall file and serve on Ms. Brar a detailed claim for its expenses within 30 days of the date of this decision. Ms. Brar shall have 30 days from the date of the claim to file and serve on the Insurer any response to the Insurer’s claim. The Insurer shall have 30 days to file and serve on Ms. Brar any reply submission. After these submissions are complete, the Insurer may apply to me for a determination of the quantum of expenses.

August 31, 2016

Ellen Fry Arbitrator

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 Application for Arbitration is dismissed under Rule 68.1 of the Dispute Resolution Practice Code.
The Insurer is entitled to its expenses of the Arbitration proceeding.