David Cioffi v. Personal Insurance Company of Canada, 2016 ONFSCDRS 302

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

Neutral Citation: 2016 ONFSCDRS 302

FSCO A15-006297

BETWEEN:

DAVID CIOFFI

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before:

Arbitrator Knox M. Henry

Heard:

In person at ADR Chambers on September 26, 2016 followed by written submissions completed on October 18, 2016

Appearances:

Mr. David Cioffi did not participate Mr. David Shellnutt participated for Mr. Cioffi Ms. Nadia Costantino participated for t Personal Insurance Company of Canada

Issues:

The Applicant, Mr. David Cioffi, was injured in a motor vehicle accident on July 21, 2013 and sought accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Cioffi, 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 Motion are:

Should these proceedings be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code (“the DRPC”)?
Is the Insurer entitled to its expenses of this proceeding?

Result:

This proceeding is dismissed pursuant to Rule 68 of the DRPC.
Due to Mr. Cioffi’s health and social challenges, I decline to issue expenses.

EVIDENCE AND ANALYSIS:

Pre-Hearing discussions in this case were held on May 11 and July 25, 2016. Mr. Cioffi did not participate at either Pre-Hearing discussion. At the second reconvened Pre-Hearing discussion on July 25, 2016, Mr. David Shellnutt, Mr. Cioffi’s counsel, advised me that he had been unable to contact Mr. Cioffi and receive instructions. Ms. Jennifer Madott, legal counsel at that time for Personal, advised me that her client wished to bring a Motion for dismissal of the proceedings in this matter. I adjourned the matter to September 26, 2016 at 11:00 a.m., to be held at the offices of the ADR Chambers, advising both counsel that I would send a letter to Mr. Cioffi advising him that should he not appear on September 26, 2016, I would entertain a Motion from Personal to dismiss the proceedings.

On August 8, 2016, by registered and regular mail, I sent a letter to Mr. Cioffi advising him that the Pre-Hearing was adjourned to September 26, 2016 and he was required to be present or the Application for Arbitration would be dismissed with cost consequences to Mr. Cioffi.

Mr. Cioffi did not participate in the reconvened Pre-Hearing on September 26, 2016 and Mr. Shellnutt advised that he had been able to make contact with his client and was expecting him to be present. I delayed the commencement of the Hearing for 90 minutes to allow ample time for Mr. Cioffi to appear. When Mr. Cioffi had not appeared or been in touch with ADR Chambers, nor was ADR Chambers able to contact him, I formally opened the Pre-Hearing discussion at 12:30 PM.

Ms. Costantino, current counsel in this matter for Personal, made submissions to request I dismiss the proceeding. Mr. Shellnutt urged that I not grant a dismissal as his client was suffering from some addiction issues and further leniency should be provided.

I ruled that both counsel were to provide written submissions to me, respecting whether or not I should grant Personal’s dismissal request. I have received the written submissions from Ms. Costantino and Mr. Shellnutt. I did not receive a reply submission from Ms. Costantino on behalf of Personal.

Submissions on behalf of Personal

Ms. Costantino submitted that Rule 68 of the DRPC provides the authority for me to dismiss the proceedings in this matter. This Rule reads 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 agree with Ms. Costantino’s submissions that my Pre-Hearing letter of August 8, 2016 (which I sent to the Mr. Cioffi’s last known address by both registered and regular mail) did, at page 2, provide Mr. Cioffi with sufficient notice of the resumed Pre-Hearing date of September 26, 2016, thereby complying with the notice requirement in section 68.2. Further, Mr. Shellnutt confirmed that he had been in discussions with his client that morning and he expected Mr. Cioffi to be in attendance.

Ms. Costantino referred me to the following case law:

Williams and Aviva Insurance Company Inc. (FSCO A14-002018, May 8, 2015 decision of Arbitrator Murray) – Applicant self-represented, claim was dismissed after Applicant failed to attend both the Pre-Hearing and a resumption date;
Mohseni and Unifund Insurance Company (FSCO A13-000623, January 5, 2015 decision of Arbitrator Gueller) – Applicant failed to attend first Pre-Hearing, also failed to attend a second date for a Preliminary Issue Hearing despite Arbitrator having made a peremptory Order for his attendance after the first no-show;
Marcellus and Aviva Canada Inc. (FSCO A14-000918, March 11, 2015 decision of Arbitrator Feldman) – Applicant failed to attend the first Pre-Hearing. Dismissal granted at second attendance on consent on both parties;
Simard and Belair Insurance Company Inc. (FSCO A15-007646, September 12, 2016 decision of Arbitrator Gueller) – Applicant failed to attend first Pre-Hearing, Arbitrator’s Pre-Hearing letter sent to Applicant’s last known address advising that a resumption date was being scheduled, and that the Applicant’s claim would be dismissed if he did not attend. The Applicant did not attend. Arbitrator Gueller found the Applicant was given notice of all proceedings relating to the Application for Arbitration at her last known address, and since she failed to participate in the Arbitration proceedings, her claim was dismissed. Notably, counsel in this case believed the Applicant to have been homeless at times and had difficulty contacting her.
Manradge and Personal Insurance Company of Canada (FSCO A14-003486, September 12, 2016 decision of Arbitrator Musson) – counsel was removed from the record after the Applicant failed to attend the first Pre-Hearing. The Applicant did not respond to the Arbitrator’s letter requesting direction as to how the Applicant wished to proceed with her claim. The Applicant’s claim was dismissed without costs.

Ms. Costantino urged that I review these decisions and dismiss Mr. Cioffi’s claim as a result of his repeated non-attendance at the Pre-Hearings.

Submissions on behalf of Mr. Cioffi:

Mr. Shellnutt submitted that Mr. Cioffi’s accident on July 21, 2013 caused a traumatic head injury, which resulted in him losing consciousness and being hospitalized for an extended period of time. Further, his client has a history of bipolar disorder, depression and addiction issues. Mr. Cioffi presently lives in halfway houses or Salvation Army locations, depending upon bed availability.

Mr. Shellnutt submitted that a major side effect of the accident is Mr. Cioffi’s inability to concentrate, remember appointments or even follow simple directions. This was illustrated by the fact that Mr. Shellnutt submitted he had spoken to Mr. Cioffi at 8:39 AM on September 26, 2016, wherein Mr. Cioffi confirmed his expected attendance at the Pre-Hearing that same day.

Mr. Shellnutt acknowledged that Mr. Cioffi’s attendance record has not been ideal. However, he submitted that Mr. Cioffi is represented by counsel who can advance his interests and provide evidence to establish his claims. Mr. Shellnutt further submitted that, even up to the Arbitration itself, Rule 37.9 of the DRPC permits the Arbitrator to proceed in the absence of the Applicant.

That Rule states:

37.9 Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Mr. Shellnutt submitted that at the Pre-Hearing scheduled for May 11, 2016, Mr. Cioffi was incarcerated in London, Ontario, and therefore unable to attend.

Mr. Shellnutt submitted that respecting the July 25, 2016 Pre-Hearing, Mr. Cioffi was detained by police and charges were set to be addressed in Criminal Court in London, Ontario, unfortunately on the very same day as the Pre-Hearing. Mr. Shellnutt states that he spoke with Duty Counsel at the London courthouse who could not confirm that a warrant for arrest would or would not be issued if Mr. Cioffi did not attend court in London on that day. Mr. Shellnutt submits that since his client’s liberty was at issue, he advised him not to come to Toronto. Unfortunately, the timeline of those events did not allow Mr. Shellnutt to cancel the Pre-Hearing in advance or properly inform Personal’s counsel.

Mr. Shellnutt submitted that the proceedings are not frivolous, vexatious or improper and the prejudice that could be suffered by Mr. Cioffi is far more extreme than that faced by Personal. He further submitted that any prejudice to Personal can be addressed by a costs award while Mr. Cioffi’s potential loss of benefits cannot.

Mr. Shellnutt submitted that there were additional issues that Mr. Cioffi wished to add to his claim.

Dismissal of the Arbitration Hearing

I have carefully reviewed the case law referred to by both counsel in this matter and remain convinced that I have the authority under Rule 68 of the DRPC to dismiss this proceeding. I do not suggest that I find Mr. Cioffi’s failure to appear, frivolous or vexatious, but I do find it improper as he has failed to respect the jurisdiction of this Tribunal.

I find it a bit curious that my notes from the Pre-Hearing discussion on September 26, 2016 indicate that Mr. Shellnutt advised us that he had been in touch with Mr. Cioffi, but Mr. Shellnutt did not amplify some of Mr. Cioffi’s health and social problems of which he was then apparently aware.

I acknowledge that Rule 37.9 of the DRPC does provide the Arbitrator with permission to proceed with the Hearing in the absence of the Applicant, but it is not obligatory for the Arbitrator to do so.

Further, Mr. Cioffi cannot, at this time, seek additional benefits in this matter as they were not set out in the Application for Arbitration. Those benefits must be sought in other venues.

The Arbitration scheduled for April 12 – 13, 2017, to hear Mr. Cioffi’s claim for additional non-earner benefits is hereby cancelled and this proceeding is dismissed.

EXPENSES:

Due to Mr. Cioffi’s health and social challenges, I am not making any award for costs in this matter.

November 14, 2016

Knox M. Henry Arbitrator

Date