Neutral Citation: 2016 ONFSCDRS 306 FSCO A13-004007

BETWEEN:

VITO CALOGERO Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Marcel D. Mongeon

Heard: By telephone conference on October 26, 2016

Appearances: Mr. Jonathan Burton for Mr. Vito Calogero Mr. Evan Bawks for Economical Mutual Insurance Company

Issues:

The Applicant, Mr. Vito Calogero, was injured in a motor vehicle accident on December 24, 2010 and sought accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, 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.

During the pendency of this Application, the Applicant, Mr. Vito Calogero, passed away on June 13, 2014. As described below, to date, no Estate Trustee has been appointed for the Estate of the Applicant.

Mr. Burton, who was Mr. Calogero's representative at the time of his death, sought an adjournment of the Hearing. The Insurer argued that I should refuse the adjournment and proceed with the Hearing. For the reasons provided below, I did not grant the adjournment.

I then asked Mr. Burton if there was any evidence to present for the Hearing. He advised there was not.

The issues in this Hearing are:

Should this Application for Arbitration be dismissed?
Is either party entitled to its expenses of the Hearing?

Result:

The Application for Arbitration is dismissed.
No expenses were requested with respect to this Hearing.

EVIDENCE AND ANALYSIS:

This Arbitration began with an Application for Arbitration (Form C) being received on April 2, 2013. Claims were made for weekly non-earners benefits, various medical and rehabilitation benefits, cost of examinations, a special award and ancillary relief such as expenses and interest relating to the accident that occurred on December 24, 2010.

The Applicant died on June 13, 2014.

Despite the Applicant's death, the parties conducted the Pre-Hearing and resumptions of the Pre-Hearing at the following times: July 24, 2014 at 9 a.m.; August 7, 2014 at 4 p.m.; October 6, 2014 at 3 p.m. and January 12, 2015 at 3 p.m.

By a Pre-Hearing letter, dated January 12, 2015, the Pre-Hearing Arbitrator, with the agreement of the representatives present, originally set the date of the Hearing in this matter for three days in December 2015. The Hearing was subsequently adjourned on consent of the representatives to the present dates of October 26, 27 and 28, 2016.

Despite the Applicant's death in June 2014, no Estate Trustee has been appointed.

Mr. Burton has informed me,² based on information received from the Applicant's daughter, that the Applicant died intestate, leaving a widow and four children. Mr. Burton has had no contact with any of the Applicant's family other than the one daughter.

Mr. Burton has also advised that in speaking with the one daughter of the Applicant that:

In October 2014, the family was reluctant to have an Estate Trustee appointed;
In late-January 2015, the family informed the representative that the family did not intend to have an Estate Trustee appointed;
The family was not aware that a Hearing was taking place on October 26, 2016; and
Mail sent to the address for the Applicant would be received by the Applicant's widow who does not speak English well.

Mr. Burton requested a short adjournment. As explained in his letter, the one daughter that he was communicating with asked if she could have a day or two to discuss the situation with her family. No indication was given why the family would now seek to have an Estate Trustee appointed for the Applicant even though they had not done so for two years.

The Insurer's representative vigorously opposed the adjournment request. In support of this opposition, an Affidavit was filed which confirmed that Mr. Burton has been given many adjournments on consent in order to determine whether or not an Estate Trustee would be appointed.

During argument of the adjournment request, I asked Mr. Burton how we could expect anything to be different after an adjournment. He was unable to provide me an answer to the question.

In determining whether or not an adjournment should be granted, I referred the parties to the decision of Toma and State Farm.³ In very similar circumstances, where a family had not acted for more than two years to have an Estate Trustee appointed, the Arbitrator held that the "claims have become vexatious, as there is no legally viable way of pursuing them."

In this case, I have no evidence that an adjournment would cause the Applicant's family to change its mind after two years to appoint an Estate Trustee. It is reasonable to expect that it will not happen and, therefore, an adjournment will serve no useful purpose. I denied the adjournment.

After denying the adjournment, I asked Mr. Burton if there was any evidence to present. As there was no one to instruct him, he advised that there was no evidence to present.

The Insurer's representative requested that I dismiss the Arbitration. I dismiss the Arbitration on the lack of any evidence supporting the Applicant's case.

EXPENSES:

The Insurer's representative confirmed that it was not seeking expenses. Accordingly, no Order for expenses is made.

November 18, 2016

Marcel D. Mongeon Arbitrator

Date

Financial Services Commission of Ontario