Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 253

FSCO A14-004185

BETWEEN:

EVERILL BARRETT

Applicant

and

AVIVA CANADA INC.

Insurer

Before: Arbitrator Irvin H. Sherman, Q.C.

Heard: In person at ADR Chambers on September 1, 2016

Appearances: Mr. Everill Barrett did not participate

Ms. Jessica M. Bacopulos and Mr. Michael McChesney participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Everill Barrett, was injured in a motor vehicle accident on January 26, 2012 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 Mr. Everill Barrett, 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 the Application for Arbitration brought by Mr. Everill Barrett be dismissed?
Is Mr. Everill Barrett liable to pay State Farm’s expenses in this matter?

Result:

The Application for Arbitration brought by Mr. Everill Barrett is dismissed.
Mr. Everill Barrett is ordered to pay State Farm’s expenses in this matter fixed at $1,500.00.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion in this matter was held on June 15, 2015. Mr. Barrett did not attend or otherwise participate in the Pre-Hearing discussion. He was represented by counsel. The Hearing dates for his Arbitration were scheduled for August 2-3, 2016.

Aviva, through its counsel, requested a resumption of the Pre-Hearing discussion in order to address Aviva’s intended Motion to dismiss the Arbitration under Rule 68 of the Dispute Resolution Practice Code by reason of Mr. Barrett’s failure to comply with requests for production, his failure to comply with evidentiary notice requirements and because of his failure to attend the Pre-Hearing discussion.

On July 13, 2016, Arbitrator Michael Kelly denied Aviva’s request for a resumption of the Pre-Hearing and ordered that the Arbitration Hearing proceed as scheduled.

Mr. Barrett failed to attend his Arbitration Hearing that was held before me as Hearing Arbitrator on August 2, 2016. At that time, I adjourned the Arbitration Hearing to be held on September 1, 2016 at 9:30 a.m. In my letter, dated August 3, 2016, I advised Mr. Barrett of the date set for the Hearing and of the fact that if he did not attend this Hearing, his Arbitration may be dismissed with expenses payable by him. Mr. Barrett did not attend the Hearing on September 1, 2016.

I am satisfied that Mr. Barrett has received notice of all scheduled Hearings in this matter.

Counsel for Aviva submitted at the Hearing that the Arbitration be dismissed with expenses payable by Mr. Barrett. Mr. Barrett failed to attend the Pre-Hearing discussion; there is no persuasive evidence of his participating in any manner in Aviva’s request for the resumption of Pre-Hearing; he failed to attend both Hearings and he has not participated in any meaningful manner in the Arbitration process. I accept the submissions made by Aviva’s counsel in this matter. Dismissal is the appropriate disposition of this matter in view of Mr. Barrett’s lack of participation and concern. Mr. Barrett’s Application for Arbitration is dismissed.

EXPENSES:

Aviva’s expenses are fixed at $1,500.00. It is ordered that Mr. Everill Barrett pay Aviva’s expenses in this matter.

September 26, 2016

Irvin H. Sherman, Q.C.

Arbitrator

Date