Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 276
FSCO A15-006642
BETWEEN:
BOZELL BOWMAN
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A MOTION
Before: Arbitrator Charles Matheson
Heard: By teleconference on August 19, 2016
Appearances: Mr. Bozell Bowman did not participate
Ms. Andrea D’Addese participated for Aviva Canada Inc.
Issues:
The Applicant, Mr. Bozell Bowman, was injured in a motor vehicle accident on January 31, 2014. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Gregory 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 Motion are:
Should the Application for Arbitration be dismissed, forthwith?
If the Application for Arbitration is dismissed, should the Applicant be responsible for the legal costs of Aviva Canada Inc.?
Result:
The Application for Arbitration is dismissed, forthwith.
The Applicant shall pay costs to Aviva, in the amount of $500.00, inclusive of disbursements and HST, if the Applicant makes any further claims for benefits under this accident.
EVIDENCE AND ANALYSIS:
Background
The Applicant had hired BK Personal Injury Law Office as his legal representative in this matter. A Motion was heard on July 6, 2016, at the first Pre Hearing in this matter, where the Applicant’s law firm moved to be removed from the record as the client –solicitor relationship had broken down to the point where the Applicant would not communicate with the Law Firm.
BK Personal Injury Law Office was successful in being removed from the record as of July 6, 2016.
The Insurer then presented this Motion to which the Insurer requested that I dismiss this Application for Arbitration with costs, forthwith.
I decided to allow for some time for the Applicant to show any positive objective criterion, and gave the Applicant the opportunity to participate one more time in a Pre-Hearing of August 19, 2016.
Decision
In my Pre-Hearing letter of July 6, 2016, I gave the Applicant the clear opportunity to either contact the Insurer or ADR Chambers so he may be afforded time to hire another Law Firm to represent him. I also clearly explained to the Applicant that if he did not communicate with either the Insurer or ADR Chambers before August 19, 2016, that I would be forced to accept the Insurer’s arguments that this Application for Arbitration had been abandoned because it was without merit and therefore frivolous and vexatious in nature.
I have checked with both the Insurer and ADR Chambers and have found that the registered letter had been delivered to the Applicant’s last known address and that neither party had heard back from the Applicant by August 19, 2016.
The Dispute Resolution Practice Code, which speaks to the dismissal of Arbitration without a Hearing, is as follows:
Dismissal of proceeding without hearing
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. 68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:
a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and (b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.
68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.”
I am satisfied that the Applicant knew of this proceeding, and the consequences for not participating at this proceeding.
I am satisfied that by the actions of the Applicant over the past 12 months, he has given proper grounds for dismissal pursuant to Rule 68.1.
Therefore, for the reasons given above, I now find and order that this application be dismissed, forthwith.
EXPENSES:
Under section 68.4 of the Dispute Resolution Practice Code, I am able to address and attach any conditions to the dismissal of this Application for Arbitration, to which I shall apply section 75 of the Dispute Resolution Practice Code, which reads as follows:
75.1 An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are found in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code.
75.2 The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:
(a) each party's degree of success in the outcome of the proceeding; (b) any written offers to settle made in accordance with Rule 76; (c) whether novel issues are raised in the proceeding; (d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders; (e) whether any aspect of the proceeding was improper, vexatious or unnecessary. (f) whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation; and
(g) whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation.
In this instant case, the Insurer is requesting a total of $2,000.00 in costs for this file inclusive of disbursements and HST, in accordance with the applicable legal aid tariffs. I am relying on section 75(2)(d) to attach a condition of payment of expenses in this matter.
I remain unconvinced, that the amount of time spent on a file in which the Applicant has been absent throughout the entire Pre-Hearing process could invoke such high hours of effort on the Insurer’s part. Therefore I now find and order that the Applicant shall pay the costs in the amount of $500.00, inclusive of disbursements and HST, to the Insurer, if the Applicant makes any further claims for benefits under this accident.
October 17, 2016
Charles Matheson
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 276
FSCO A15-006642
BETWEEN:
BOZELL BOWMAN
Applicant
and
AVIVA CANADA INC.
Insurer
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, forthwith.
The Applicant shall pay costs to Aviva, in the amount of $500.00, inclusive of disbursements and HST, if the Applicant makes any further claims for benefits under this accident.
October 17, 2016
Charles Matheson
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.