Pavel Byrsan v. Continental Casualty Company, 2016 ONFSCDRS 25

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 25

FSCO A14-002944

BETWEEN:

PAVEL BYRSAN

Applicant

and

CONTINENTAL CASUALTY COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Anne Morris

Heard: In person at ADR Chambers on November 27, 2015

Appearances: Mr. Pavel Byrsan did not participate

Mr. Justin Mariani participated for Mr. Pavel Byrsan

Ms. Kiran Sah participated for Continental Casualty Company

Issues:

The Applicant, Mr. Pavel Byrsan, was injured in a motor vehicle accident on November 1, 2012 and sought accident benefits from Continental Casualty Company (“Continental”) payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Byrsan, 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 Hearing are:

Should Mr. Byrsan’s Application for Arbitration be dismissed?
Is Continental entitled to its expenses?

Result:

Mr. Byrsan’s Application for Arbitration is dismissed.
Mr. Byrsan shall pay expenses to Continental in the amount of $750.00.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on August 10, 2015 at which Mr. Byrsan failed to appear. At that time, I spoke to him by telephone and he advised that he was on his way to the Pre-Hearing. He did not attend after more than one hour. He did not contact ADR Chambers.

On August 10, 2015, I sent a letter to Mr. Byrsan at his last known address to advise him of the missed Pre-Hearing discussion. The letter provided Mr. Byrsan with an Attendance Notice, setting a date of November 27, 2015 at 2:00 p.m. to hear the issues identified in the Application for Arbitration. The letter also advised him that should he not contact our office or participate in any further proceedings, I would dismiss his Application and consider Continental’s request for expenses.

The Dismissal

For the reasons that follow, Mr. Byrsan’s Application for Arbitration is dismissed.

Mr. Byrsan did not attend on November 27, 2015 at 2:00 p.m. and had not attended as of 2:20 p.m. He did not contact ADR Chambers.

I am satisfied that Mr. Byrsan was given notice of all of the proceedings related to his Application for Arbitration at his last known address contained in the records of the Dispute Resolution Group (including ADR Chambers) as required by Rule 5.7 of the Dispute Resolution Practice Code (“DRPC”).

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

Mr. Byrsan bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Arbitration is dismissed.

EXPENSES:

I find that Continental, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses. Continental requested costs in the amount of $750.00. I find this amount to be reasonable and in accordance with the Expense Regulation, the Schedule to the Expense Regulation and Rules 75 and 78 of the DRPC.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.1.8, as amended, Mr. Byrsan is ordered to pay Continental’s expenses in the amount of $750.00.

January 18, 2016

Anne Morris

Arbitrator

Date