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

Neutral Citation: 2016 ONFSCDRS 241

FSCO A15-007646

BETWEEN:

DOMINIQUE SIMARD

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: Arbitrator Paulina Gueller

Heard: By telephone conference on July 20, 2016

Appearances: Ms. Dominique Simard did not participate Mr. William Brennan participated for Ms. Dominique Simard Mr. Sean Miller participated for Belair Insurance Company Inc.

Issues:

The Applicant, Ms. Dominique Simard, was injured in a motor vehicle accident on September 6, 2012 and sought accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Simard, 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 issue in this Hearing is:

Should Ms. Simard’s Application for Arbitration be dismissed?

Result:

Ms. Simard’s Application for Arbitration is dismissed, without costs.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on May 6, 2016, at which Ms. Simard failed to appear.

On May 6, 2016, I sent a letter to Ms. Simard at her last known address advising her of the missed Pre-Hearing discussion. The letter provided Ms. Simard with an Attendance Notice, setting a Hearing date for July 20, 2016 at 11:00 a.m., to be heard by telephone conference, to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I would consider dismissing her Application for Arbitration and Belair’s request for expenses.

Motion to be removed from the record

At the Pre-Hearing held on May 6, 2016, Mr. Brennan brought an oral Motion to remove himself and Wallace Smith LLP from the record as the Applicant’s counsel. The Insurer did not oppose. Consequently, I directed Mr. Brennan to comply with Rule 9.7 of the Dispute Resolution Practice Code (“DRPC”).

At the Hearing, Mr. Brennan stated that Wallace Smith LLP had been unable to reach Ms. Simard and notify her of their intention to remove themselves from the record. Further, Mr. Brennan stated that they heard that Ms. Simard now is homeless and Wallace Smith LLP was unable to serve the Motion on the Applicant as she has no known address. Also, he stated that Ms. Simard left a voicemail at their office about three weeks ago, but they have been unable to get in contact with the Applicant.

As of today, I have no proof that Wallace Smith LLP has complied with Rule 9.7 of the DRPC. Therefore, I do not permit Wallace Smith LLP to be removed from the record as the Applicant’s counsel.

The Dismissal

For the reasons that follow, Ms. Simard’s Application for Arbitration is dismissed.

As of July 20, 2016, I was unable to contact Ms. Simard, she had yet to contact her legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

I am satisfied that Ms. Simard was given notice of all of the proceedings related to her Application for Arbitration at her last known address.

Pursuant to Rule 37.7 of the DRPC, the Arbitration Hearing proceeded in her absence.

Ms. Simard bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.

EXPENSES:

Mr. Miller stated that Belair would not seek costs of this Arbitration process. Therefore, no expenses are awarded.

September 12, 2016

Paulina Gueller Arbitrator

Date