Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 45
FSCO A14-001026 & A14-001025
BETWEEN:
MUHAMMAD KHAN and RUBINA KHAN
Applicants
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Benjamin Drory
Heard: In person at ADR Chambers on January 18, 2016
Appearances: Mr. Muhammad Khan and Ms. Rubina Khan did not attend Ms. Sarah Williams attended for Mr. Muhammad Khan and Ms. Rubina Khan Ms. Tania Lee attended for Certas Direct Insurance Company Mr. Thomas Elliot attended for Certas Direct Insurance Company
Issues:
The Applicants, Mr. Muhammad Khan and Ms. Rubina Khan, were injured in an automobile accident on June 18, 2011 and sought accident benefits from Certas Direct Insurance Company (“Certas”) under the Schedule. 1 The parties were unable to resolve their disputes through mediation and Mr. Muhammad Khan and Ms. Rubina Khan, through their legal 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 Mr. and Ms. Khan’s Applications for Arbitration be dismissed?
Should Ms. Williams and Zayouna Law Firm be permitted off the record as legal representatives for Mr. and Ms. Khan?
Should Certas be entitled to its expenses in respect of the matters?
Result:
Mr. and Ms. Khan’s Applications for Arbitration are dismissed.
Ms. Williams and Zayouna Law Firm are permitted off the record as legal representatives for Mr. and Ms. Khan.
Mr. and Ms. Khan shall pay Certas a total amount of $1,000.00 forthwith respecting its expenses in these matters.
EVIDENCE AND ANALYSIS:
On January 29, 2014, the Financial Services Commission of Ontario received Applications for Arbitration filed on behalf of Mr. Muhammad Khan and Ms. Rubina Khan.
A Pre-Hearing in this matter was originally held on June 18, 2015, at the offices of ADR Chambers. Ms. Williams and Mr. Eric Armour participated on behalf of Mr. and Ms. Khan, as did Ms. Lee and Mr. George Nathanael on behalf of Certas. Mr. and Ms. Khan both did not attend and did not participate.
Counsel for the parties agreed to schedule a resumption of the Pre-Hearing in person at ADR Chambers a significant amount of time (seven months) away – January 18, 2016. Certas requested that Mr. and Ms. Khan’s claims be dismissed if Mr. and Ms. Khan did not attend the resumption of the Pre-Hearing, and indicated that it would move to recover its costs for attending the June 18 Pre-Hearing in either event. Pursuant to Rule 68.2 of the Dispute Resolution Practice Code, sufficient written notice must be provided to all parties before a claim can be dismissed. Accordingly, I issued letters, dated June 18, 2015, delivered to all parties (or in Mr. and Ms. Khan’s case, their last-known address), advising that a resumption of the Pre-Hearing in this case had been scheduled for Monday January 18, 2016, starting at 10:00 a.m., in person at ADR Chambers. Mr. and Ms. Khan were both advised, in bold font, that in accordance with Rule 68.2, if they did not personally participate in the proceedings, then the Application for Arbitration may be dismissed.
Mr. and Ms. Khan did not attend at the proceeding on January 18, 2016, despite having been provided with a very significant period of time notifying her to do so.
Ms. Williams and Mr. Armour advised during the June 18, 2015 discussion that if they were unable to contact Mr. and Ms. Khan prior to January 18, 2016, then their firm would seek to get off the record. On January 12, 2016, ADR Chambers received correspondence from Ms. Williams advising of numerous attempts she made to contact Mr. and Ms. Khan unsuccessfully, and which also therein indicated to Mr. and Ms. Khan her intention to get off the record. I reviewed the material provided to me, and am satisfied there has been a breakdown in the solicitor-client relationship. Accordingly, Ms. Williams’ request for withdrawal is appropriate within Rule 9.7 of the Dispute Resolution Practice Code, and is hereby granted.
In all of these circumstances, I find that it is appropriate to dismiss the matters without a Hearing pursuant to Rule 68.1 of the Dispute Resolution Practice Code, on the basis that the proceedings are frivolous, vexatious, or was commenced in bad faith.
EXPENSES:
On January 18, 2016, Mr. Elliot verbally requested, on behalf of Certas, that Certas be reimbursed for its legal expenses in the matter in the amount of $500.00 for each file. It is common practice for the unsuccessful party in an Arbitration matter to be responsible for a portion of the legal costs of the successful party. In many cases like this I specifically seek a submission from the Applicant regarding the Insurer’s expense submission. However, in this case, I find Certas’ submission entirely reasonable. It is completely in line with (and in several cases less than) Orders that have been issued in similar circumstances. Mr. and Ms. Khan have shown no interest in seriously pursuing their own cases that they initiated—which led to Certas incurring legal costs defending the claim. The $500.00 requested per file is assuredly significantly less than those costs incurred. I cannot imagine a situation where the Applicants could convince me that the $500.00 requests are unreasonable, even if a submission was received on point. Accordingly, I grant the expenses request in its full amount.
February 8, 2016
Benjamin Drory Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 45
FSCO A14-001026 & A14-001025
BETWEEN:
MUHAMMAD KHAN and RUBINA KHAN
Applicants
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. and Ms. Khan’s Applications for Arbitration are dismissed.
Ms. Williams and Zayouna Law Firm are removed from the record as legal representatives for Mr. and Ms. Khan
Mr. and Ms. Khan shall pay Certas a total amount of $1,000.00 forthwith respecting its expenses in these matters.
February 8, 2016
Benjamin Drory Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.