Hawa Bashiru v. Belair Insurance Company Inc., 2016 ONFSCDRS 235

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 235

FSCO A13-009045

BETWEEN:

HAWA BASHIRU

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

REASONS FOR DECISION

Before:

Arbitrator Janette Mills

Heard:

In person at ADR Chambers on July 25, 2016

Appearances:

Ms. Hawa Bashiru did not participate

Mr. Karl Girdhari participated for Ms. Hawa Bashiru

Mr. Nathaniel Smith participated for Belair Insurance Company Inc.

Issues:

The Applicant, Ms. Bashiru, was injured in a motor vehicle accident on May 3, 2011 and sought accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their dispute through mediation, and the Applicant, 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 this Hearing are:

Should Taylor, Baber and Associates (“TBA”) be removed as counsel of record?
Should the Applicant’s Application for Arbitration be dismissed?
Should Belair be awarded its expenses?

Result:

TBA are removed as counsel of record.
The Applicant’s Application for Arbitration is dismissed.
Belair’s expenses are set at $567.30.

EVIDENCE AND ANALYSIS:

(i) Should Taylor, Baber and Associates be removed as counsel of record?

On June 22, 2016, TBA filed a Motion to be removed as counsel of record. The Motion materials demonstrate that soon after the Pre-Hearing held on January 26, 2015, the solicitor/client relationship between TBA and the Applicant began to breakdown.

TBA sent correspondence to the Applicant on October, 29, 2015, November 9, 2015, November 16, 2015, March 30, 2016, May 2, 2016, May 6, 2016 and May 26, 2016, either by regular mail or by courier, asking the Applicant to respond and to meet with TBA to discuss her upcoming Arbitration Hearing. On each occasion, the Applicant failed to respond.

TBA has had no contact with the Applicant since October 29, 2015. On June 22, 2016, TBA filed a Motion to be removed as solicitor of record citing a breakdown in the solicitor/client relationship. On the same date, the Applicant was served with notice of that Motion. The Applicant has not responded to that notice. Subsequently, the Motion was put over to be argued on the first day scheduled for the Applicant’s Arbitration Hearing. Mr. Girdhari, counsel with TBA, appeared as counsel of record. The Applicant did not appear.

For the above reasons, I am satisfied that there has been a breakdown in the solicitor/client relationship. I am satisfied that Applicant’s counsel has taken the necessary steps to contact their client and that their client has been informed of this Motion. Therefore, I order the Applicant’s counsel removed from the record as the Applicant’s legal representative as of July 25, 2016.

(ii) Should the Applicant’s Application for Arbitration be dismissed?

The Applicant applied to Belair for statutory accident benefits on May 24, 2011. She filed an Application for Arbitration on July 17, 2013; a Pre-Hearing discussion was held on January 26, 2015 and an Arbitration Hearing date was set for July 25, 26 and 27, 2016. On December 16, 2015, a resumption of the Pre-Hearing discussion took place. At that time, counsel for the Applicant undertook, on the Applicant’s behalf, to provide Belair with requested productions. To date, those productions remain outstanding.

On July 25, 2016, the Arbitration Hearing proceeded as scheduled. The Applicant did not attend and Belair requested that the Applicant’s Application for Arbitration be dismissed. In the alternative, Belair requested that the Application for Arbitration be stayed until such time as the requested productions have been received from the Applicant.

I am satisfied that the Applicant has been notified of all proceedings to date and was aware that she was to attend the Arbitration Hearing. Furthermore, there is nothing before me to suggest that her contact information is not current. I also note that it is the Applicant’s obligation to communicate with and to provide current contact information to ADR Chambers.

Having regard to the above, I am satisfied that the Applicant was aware that her failure to attend for her Arbitration Hearing would result in the Hearing proceeding in her absence, as noted in the Pre-Hearing letter, dated January 26, 2015

The Applicant bears the onus of establishing entitlement to accident benefits at the Arbitration. There is insufficient evidence in this case, based on the record, to meet this onus. Furthermore, given the history of this matter and the Applicant’s unresponsiveness, I can see no merit in staying the Application for Arbitration until such time as the requested productions are produced. Therefore, the Application for Arbitration is dismissed.

EXPENSES

Belair has requested expenses in this matter. When assessing expenses, Arbitrators determine entitlement and quantum by applying criteria dictated by the legislation.² I find the criteria applicable in this case to be, “each party’s degree of success in the outcome of the proceeding” and “the conduct of a party or the party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.”³

The Applicant, by not responding to production requests and by not appearing at the Arbitration Hearing, did not succeed in asserting her claim for benefits and is not entitled to her expenses. Belair, as the “successful party,” is entitled to reasonable expenses.

The Dispute Resolution Practice Code states that costs should be paid at the Legal Aid Ontario, Civil Tariff rate.⁴ Belair has submitted a Bill of Costs in the amount of $567.30 (including disbursements and HST), which is reflective of 4.6 hours’ preparation time at the permitted Legal Aid Ontario, Civil Tariff rate.

September 6, 2016

Janette Mills

Arbitrator

Date

Having regard to the Bill of Costs submitted and taking into account counsel for Belair’s appearance at the Arbitration Hearing, I fix the total quantum of expenses payable at $567.30.

Financial Services Commission des