Neutral Citation: 2016 ONFSCDRS 321

FSCO A15-002147

BETWEEN:

LUAI ASALIEH Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Isabel Stramwasser Heard: By written submissions received on September 22, 2016 Appearances: Nour Salman for Mr. Asalieh Shawn Macdonald for Guarantee Company of North America

Issues:

The Applicant, Luai Asalieh, was injured in a motor vehicle accident on January 12, 2013. He applied for statutory accident benefits from Guarantee Company of North America, payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation and, in March 2015, Mr. Asalieh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

At the pre-hearing discussion in October 2015 and the resumption of pre-hearing discussion in March 2016, it was noted that Mr. Asalieh had not responded to a number of Guarantee’s production requests and the parties consented to numerous orders and agreements. When Mr. Asalieh still had not complied with same by September 2016, Guarantee brought the within motion to dismiss his Application for Arbitration.

The preliminary issues are:

Should Mr. Asalieh’s Application for Arbitration be dismissed for failure to comply with orders and agreements?
Is Guarantee entitled to its expenses of the arbitration?

Result:

The parties shall set a date for hearing of Mr. Asalieh’s Application for Arbitration within 14 days of this decision.
My order of March 2016 staying the Application for Arbitration pending Mr. Asalieh’s compliance with the production order and agreements of my pre-hearing letter dated November 11, 2015 is hereby vacated.
I leave the matter of expenses of this preliminary issue hearing and the motions preceding it (at the October 2015 pre-hearing discussion and the March 2016 resumption) in the discretion of the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Orders and Agreements

As noted above, there was a resumption of pre-hearing discussion on March 29, 2016. At that time, Guarantee brought a motion to dismiss the Application for Arbitration on the basis that Mr. Asalieh had failed to comply with an order and a number of agreements reached at the prehearing discussion of October 28, 2015. Pursuant to Rule 34.1, I made the following orders at that resumption:

The Application for Arbitration is stayed, pending the Applicant’s compliance with the production order and agreements identified as numbers 1, 4, 5, 10, 11, 12 and 13 at pages 2 and 3 of my pre-hearing letter dated November 11, 2015.
After 60 days, the Insurer may bring a motion to dismiss the Application for Arbitration.
The matter of expenses of this motion is adjourned.

Consequences for Failure to Comply

Rule 34.1 of the Dispute Resolution Practice Code³ sets out the consequences for a failure to comply with a time requirement established by the Rules or by order or agreement, or a failure to produce documents in compliance with an order or agreement. In particular, the Rule provides that an arbitrator may:

(a) order a party to pay expenses (including interim expenses), or deny expenses to a party;

(b) exclude a document filed;

(d) draw an adverse inference against a party; and

(e) make such other order as the arbitrator considers just.

Guarantee takes the position that Mr. Asalieh has still not complied with the order and agreements identified as numbers 4, 11 and 13 of my pre-hearing letter, as follows:

Mr. Asalieh failed to provide “all attachments to his 2012 and 2013 tax returns, including receipts to support any expense claims.”
Mr. Asalieh failed to advise whether he has had any self-employment income since the date of the accident and, if so, the sources of that income, within 30 days of this pre-hearing discussion.
Mr. Asalieh’s letter to the OPP dated April 1, 2016, 148 days after the deadline to make best efforts had expired; his failure to reply to the OPP response of April 7, 2016, either by paying the requested fee or asking the Insurer to pay the fee; and, his responding submissions at this preliminary issue hearing that the defendant in the tort proceeding is expected to bring a motion for the OPP file on November 15, 2016 does not constitute “best efforts to obtain a copy of the police file from OPP Collingwood for the January 12, 2013 accident.”

Guarantee added that Mr. Asalieh’s responses to the remaining orders and agreements were not in compliance because they were between 290 and 321 days late.

Findings and Conclusion

I find that Mr. Asalieh has, by now, substantially complied with most of the orders and agreements of the October 2015 pre-hearing discussion.

Consequently, I decline to dismiss his Application for Arbitration.

Pursuant to Rule 34.1, the hearing arbitrator may consider Mr. Asalieh’s repeated and continued breaches of orders and agreements in the award or denial of expenses, exclusion of documents, imposition of a new timetable, drawing of an adverse inference or make such other order as the arbitrator considers just. Furthermore, in light of Mr. Asalieh’s breaches of orders and agreements, any request to adjourn the hearing from him due to production issues will likely be refused.

Furthermore, given that FSCO is concluding its operations, I do not deem it appropriate to continue to stay the Application for Arbitration pending the Applicant’s compliance with the production order and agreements identified as numbers 4, 11 and 13 at pages 2 and 3 of my pre-hearing letter dated November 11, 2015.

Rather, I order that the parties make best efforts to attend at a resumption of pre-hearing discussion by teleconference within 14 days of this decision with me or another arbitrator for the sole purpose of setting a date for hearing of this matter. The parties shall prepare for the resumption by making best efforts to find mutually convenient hearing dates in advance of the telephone resumption so that the pre-hearing arbitrator need only confirm FSCO’s availability.

EXPENSES:

I leave the matter of expenses of this preliminary issue hearing and the motions preceding it (at the October 2015 pre-hearing discussion and March 2016 resumption of pre-hearing discussion) in the discretion of the hearing arbitrator.

November 28, 2016

Isabel Stramwasser Arbitrator

Financial Services Commission of Ontario