Neutral Citation: 2016 ONFSCDRS 312 FSCO A15-002954

BETWEEN:

KAVITA PERSAUD Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Harvey Savage Heard: By written submissions due September 15, 2016

Appearances: Ms. Kavita Persaud did not participate Mr. Paul Barnes participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. Kavita Persaud, was injured in a motor vehicle accident which occurred on December 31, 2013. She applied for accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this Motion is:

Should the Applicant’s Application for Arbitration be dismissed?

Result:

The Applicant’s Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

There was a Pre-Hearing conducted at 9 a.m. on July 26, 2016 at the offices of ADR Chambers. The Applicant did not appear. Her former counsel, Ms. Melissa Chan, attended, as did Mr. Paul Barnes for the Insurer.

Pursuant to a written request to be removed from the record as well as supporting materials filed and oral representations at the Pre-Hearing discussion, the Applicant’s counsel was removed from the record on July 26, 2016.

I sent the Applicant a letter, dated August 3, 2016, indicating that I had removed Ms. Chan as her counsel of record. I also set out in that letter the repeated non-compliance of the Applicant, and advised her to contact me by September 15, 2016, failing which I would dismiss the Application for Arbitration pursuant to Rule 68.2 and 68.3 of the Dispute Resolution Practice Code.

The Applicant has failed to contact me.

The Applicant has the onus of proof to establish her entitlement to accident benefits under her Application for Arbitration and her failure to attend to the Pre-Hearing on July 26, 2016 and to respond to the letter sent to her on August 3, 2016 accordingly means that she has failed to meet this onus.

Conclusion

I hereby dismiss the Application for Arbitration.

EXPENSES:

No expenses were requested by Wawanesa. No expenses are awarded.

November 21, 2016

Harvey Savage Arbitrator

Date

Financial Services Commission of Ontario