Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 313

FSCO A15-005306

BETWEEN:

ROSHANTHAN KANAGARAJAH

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: Arbitrator Charles Matheson

Heard: By teleconference call on October 31, 2016

Appearances: Mr. Roshanthan Kanagarajah did not participate

Ms. Wilhelmena (Rosalind) Eastmond participated for Belair Insurance Company Inc.

Issues:

The Applicant, Mr. Roshanthan Kanagarajah, was injured in a motor vehicle accident on June 8, 2013. He applied for and received statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Roshanthan Kanagarajah 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 Application for Arbitration be dismissed?

Result:

The Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

Background

The Applicant had hired E. Laraia Legal Service Professional Corporation as his legal representative in this matter. On March 21, 2016, at the first Pre-Hearing, a resumption of Pre-Hearing was set for April 21, 2016 at 12:00 p.m. At this in-person Pre-Hearing, it was a mandatory condition that the Applicant appear and participate. He did not.

Another Pre-Hearing resumption was set for September 30, 2016, where the Applicant’s legal representative brought a Motion to be removed from the record as the client –solicitor relationship had broken down to the point where the Applicant would not communicate with E. Laraia Legal Service Professional Corporation. The firm was successful in being removed from the record as of September 30, 2016.

The Insurer then presented this Motion to dismiss this Application for Arbitration, forthwith.

The September 30, 2016 Pre-Hearing Arbitrator, Arbitrator Musson, decided to allow for some time for the Applicant to show any positive objective criterion in regard to this Application for Arbitration and gave the Applicant the opportunity to participate one more time in a Pre-Hearing on October 31, 2016.

Decision

In the Pre-Hearing letter of September 30, 2016, issued by Arbitrator Musson, he gave the Applicant the clear opportunity to either contact the Insurer or ADR Chambers so he may be afforded time to hire another law firm to represent him. The letter also clearly explained to the Applicant that if he did not communicate with either the Insurer or ADR Chambers before October 31, 2016, that an Arbitrator would be forced to accept the Insurer’s arguments that this Application for Arbitration had been abandoned because it was without merit and therefore frivolous and vexatious in nature.

I have checked with both the Insurer and ADR Chambers today, and have found that the registered letter was delivered to the Applicant’s last known address and that neither the Insurer nor ADR Chambers had heard back from the Applicant. I confirmed with the Applicant’s father by telephone today that he did receive the registered letter from ADR Chambers.

The Dispute Resolution Practice Code, which speaks to the dismissal of an Application for Arbitration without a Hearing, is 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 am satisfied that the Applicant knew of this proceeding, and the consequences for not participating again at this proceeding.

I am satisfied that by the actions of the Applicant over the past 12 months, he has given proper grounds for dismissal pursuant to Rule 68.1.

Therefore, for the reasons given above, I now find and order that this Application for Arbitration be dismissed, forthwith.

EXPENSES:

Under section 68.4 of the Dispute Resolution Practice Code, above, I am able to address and attach any conditions to the dismissal of this Application for Arbitration.

The Insurer did not request any expenses be assessed for their Motion. Therefore no amount will be assessed for this dismissal.

November 21, 2016

Charles Matheson

Arbitrator

Date