Luis Arturo Gomez Soto v. TD General Insurance Company, 2016 ONFSCDRS 297

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 297

FSCO A16-002193

BETWEEN:

LUIS ARTURO GOMEZ SOTO

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Knox M. Henry

Heard: By teleconference call on October 20, 2016

Appearances: Mr. Luis Arturo Gomez Soto did not participate Ms. Anna Korolkova participated for Mr. Gomez Soto Mr. Jeffery Pasternak participated for Insurer

Issues:

The Applicant, Mr. Luis Arturo Gomez Soto, was injured in a motor vehicle accident on December 6, 2014 and sought accident benefits from TD General Insurance Company (TD General), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Gomez Soto, 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 Ms. Korolkova be removed from the record as the representative for Mr. Gomez Soto?
Should Mr. Gomez Soto’s Application for Arbitration be dismissed?
Should Mr. Gomez Soto be responsible for the expenses incurred by TD General in this matter?

Result:

Ms. Korolkova is removed from the record as the representative for Mr. Gomez Soto.
Mr. Gomez Soto’s Application for Arbitration is dismissed.
Mr. Gomez Soto is responsible for the expenses incurred by TD General in this matter.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on August 4, 2016, at which Mr. Gomez Soto failed to appear.

On August 9, 2016, I sent a letter to Mr. Gomez Soto at his last known address to advise him of the missed Pre-Hearing discussion. The letter provided Mr. Gomez Soto with an Attendance Notice, setting a date of October 20, 2016 at 9:30 a.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 TD General’s request for expenses.

The Off the Record Request

Prior to the Hearing, Ms. Anna Korolkova requested to be removed from the record as counsel for Mr. Gomez Soto, citing a breakdown in the solicitor-client relationship. I deferred her request to be heard at the Hearing.

Mr. Gomez Soto did not attend the Hearing. Ms. Anna Korolkova then reiterated her firm’s request to be removed from the record. TD General did not oppose the Motion.

I am satisfied that there was a breakdown in the solicitor-client relationship, as evidenced by Mr. Gomez Soto counsel’s inability to obtain instructions from Mr. Gomez Soto, and I am satisfied that she took the necessary and appropriate steps to try to contact him.

Therefore, I ordered that Ms. Anna Korolkova be removed from the record as Mr. Gomez Soto’s legal representative.

The Dismissal

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

As of October 20, 2016, I was unable to contact Mr. Gomez Soto, he had yet to contact his legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

I am satisfied that Mr. Gomez Soto was given notice of all of the proceedings related to his Arbitration at his last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in his absence.

Mr. Gomez Soto 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:

TD General is entitled to recover its expenses, in this matter, from Mr. Gomez Soto. If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

November 7, 2016

Knox M. Henry Arbitrator

Date