Neutral Citation: 2016 ONFSCDRS 278

FSCO A15-008453

BETWEEN:

JOEL FREZA JR.

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Arbitrator Charles Matheson

Heard: By teleconference on September 16, 2016

Appearances: Mr. Joel Freza Jr. did not participate Mr. Rajiv Haté participated for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Mr. Joel Freza Jr., was injured in a motor vehicle accident on November 8, 2013. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Freza 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?
Is Mr. Freza liable to pay the legal costs of Royal?

Result:

The Application for Arbitration is dismissed, forthwith.
Mr. Freza shall pay the legal costs of Royal in the amount of $500.00, inclusive of disbursements and taxes, prior to the Applicant being able to apply for any further accident benefits deriving from this accident.

EVIDENCE AND ANALYSIS:

Background

The Applicant’s law firm, known as Ince-Mercer Ehamparam LLP, was removed from the record during a Motion brought by the firm, during a Pre-Hearing resumption held via teleconference on August, 10 2016, as a result of a client-solicitor relationship breakdown. A Pre-Hearing letter was sent to the Applicant’s last known address via registered letter, informing him of this outcome.

Decision

After a series of Pre-Hearings, in which Mr. Freza did not appear despite various attempts by ADR Chambers and his then acting legal representative to contact him via letter at his last known address, Insurer’s counsel brought this Motion to dismiss during the proceeding on August 10, 2016.

I wrote a Pre-Hearing letter on August 11, 2016, outlining the options the Applicant had moving forward. In this letter, I also outlined the possible consequences of not participating in the process, and that on September 15, 2016, a teleconference call was going to occur. The call-in instructions for the teleconference were also included.

Insurer’s counsel submitted that numerous written letters were sent to his then legal counsel asking for production of documents which would support his claim for the claimed benefits being sought, without reply.

Further, former counsel for the Applicant had urgently tried to contact the Applicant during the months of June and July 2016, prior to the Pre Hearing stage of the Application for Arbitration, in order to attain production documents and instructions on how to proceed with this Application for Arbitration.

I am satisfied the Applicant knew of the Pre-Hearings, this Motion and the consequences there of.

The Insurer argues, in part, that this Application for Arbitration should be dismissed as per the Dispute Resolution Practice Code which speaks to the dismissal of an Arbitration without a Hearing which 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 has not manifested any positive criterion that would demonstrate his interest in pursuing this Application for Arbitration, and as a result 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 for Arbitration be dismissed, forthwith.

EXPENSES:

The Insurer has asked for the legal costs associated with this file, in the order of $3,000.00 inclusive of disbursements and taxes.

As the Insurer did not provide the specific breakdown of the costs, and the fact that some of the costs may have been associated with the second related accident benefit file (which has now settled), I find that these costs are excessive.

I now find and order that Mr. Freza shall pay the legal costs of Royal in the amount of $500.00, inclusive of disbursements and taxes, prior to the Applicant being able to apply for any further accident benefits deriving from this accident.

October 17, 2016

Charles Matheson Arbitrator

Date

Financial Services Commission of Ontario