Financial Services Commission of Ontario
Neutral Citation: 2016 ONFSCDRS 284
FSCO A15-008215
BETWEEN:
(MARIE) JOSEE VANDERKLEY
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Benjamin Drory
Heard: By teleconference on October 13, 2016
Appearances: Mrs. Vanderkley did not participate Ms. Tanjoyt Deol for Mrs. Vanderkley Ms. Leanne Kenning for Dominion of Canada General Insurance Company
Issues:
The Applicant, Mrs. (Marie) Josee Vanderkley, was injured in a motor vehicle accident on September 10, 2013, and sought accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mrs. Vanderkley, 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 issues in this Hearing are:
Should Mrs. Vanderkley’s Application for Arbitration be dismissed?
Should Kalsi & Associates be permitted off-the-record as legal representative for Mrs. Vanderkley?
Is Dominion entitled to its expenses of the proceeding?
Result:
Mrs. Vanderkley’s Application for Arbitration is dismissed.
Kalsi & Associates is removed from the record as legal representative for Mrs. Vanderkley.
Dominion is entitled to its expenses for this matter in the amount of $250.00.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held by teleconference on August 4, 2016 at 12:00 p.m. At that time, Mrs. Vanderkley’s counsel, Ms. Deol, indicated that her firm wished to be removed from the record as legal representative for Mrs. Vanderkley, citing a breakdown in the solicitor-client relationship, including that they had not been able to reach their client by telephone on numerous attempts. However, I was able to reach Mrs. Vanderkley on the first attempt at that time. Unfortunately, I was unable to connect Mrs. Vanderkley with anybody else involved in the proceeding at that time, and nothing of substance was discussed with her (she did not seem to understand why I was calling or what it was about, and subsequently hung up), which led to complications following.
In the circumstances, I set a Hearing for the matter for October 13, 2016. I was not prepared to remove Kalsi & Associates from the record at that time, but indicated I would be prepared to re-consider at the time of the Hearing.
That same day, I sent a letter to Mrs. Vanderkley at her last known address to advise her of the missed Pre-Hearing discussion. The letter provided Mrs. Vanderkley with an Attendance Notice, setting a date of October 13, 2016, starting at 12:00 p.m., by teleconference arranged by ADR Chambers, 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 might dismiss her Application and consider Dominion’s request for expenses.
At the commencement of the proceeding on October 13, 2016, Mrs. Vanderkley’s legal representative, Ms. Deol, once again orally requested to be removed from the record as Mrs. Vanderkley’s representative, on the basis of a breakdown in the solicitor-client relationship. She also provided me with written materials in support of this request, which complied with Rule 9.7 of the Dispute Resolution Practice Code (“DRPC”).
I am satisfied from the correspondence I reviewed between Mrs. Vanderkley and Kalsi & Associates that there was a breakdown in the solicitor-client relationship. Accordingly, I permit Kalsi & Associates to be removed from the record as legal representative for Mrs. Vanderkley.
The Dismissal
For the reasons that follow, Mrs. Vanderkley’s Application for Arbitration is dismissed.
Mrs. Vanderkley did not participate in the proceeding on October 13, 2016. I called her last-known phone number at 12:17 p.m., but the gentleman I spoke with at that number advised she was not home. I am satisfied that Mrs. Vanderkley was given notice of all of the proceedings related to her Arbitration at her last known address. Pursuant to Rule 37.7 of the DRPC, the Arbitration Hearing proceeded in her absence. Mrs. Vanderkley 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:
Dominion orally requested expenses in the amount of $1,000.00 respecting this proceeding, respecting time spent on the Pre-Hearing and the Hearing. Dominion acknowledged that it had not spent excessive amounts on this file. No submissions were presented by Mrs. Vanderkley.
While by rule I do not have discretion to discuss the contents of the correspondence I reviewed, what I reviewed was such that I am hesitant to award a large sum of costs against Mrs. Vanderkley. I am sympathetic to Dominion’s request, as it would commonly be reasonable; however, I exercise my discretion to award a smaller-than-typical award of expenses in this case. I order that Mrs. Vanderkley pay Dominion $250.00 respecting its expenses in this case.
October 24, 2016
Benjamin Drory Arbitrator
Financial Services Commission of Ontario
Neutral Citation: 2016 ONFSCDRS 284
FSCO A15-008215
BETWEEN:
(MARIE) JOSEE VANDERKLEY
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
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:
Mrs. Vanderkley’s Application for Arbitration is dismissed.
Kalsi & Associates is removed from the record as legal representative for Mrs. Vanderkley.
Dominion is entitled to its expenses for this matter in the amount of $250.00.
October 24, 2016
Benjamin Drory Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.