Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 83

FSCO A12-005122

BETWEEN:

TOM PILIECI

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before: Arbitrator Harvey Savage

Heard: In person at ADR Chambers on January 14, 2016

Appearances: Mr. Tom Pilieci participated Mr. Chad Townsend participated for TTC Insurance Company Limited

Issues:

The Applicant, Mr. Tom Pilieci, was injured in an accident on November 25, 2009. He applied for accident benefits from the TTC Insurance Company Limited (“TTC”), 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 issues in this Hearing are:

Should the Application for Arbitration be dismissed?
Is either party entitled to expenses?

Result:

The Insurer’s Motion to dismiss the matter is denied.
This matter is referred back for a further Pre-Hearing.
If the proceeding is not resolved at the Pre-Hearing conference, a new Arbitrator will be appointed to conduct the Arbitration.
Expenses are deferred to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Background

The benefits sought in the Arbitration proceeding are Income Replacement Benefits, Housekeeping Benefits, the costs of a treatment plan, dated March 18, 2009, from Sports Center and two treatment plans, dated July 18, 2009, from Top Rehab.

This Motion to dismiss the matter was originally served shortly after 30 days following an adjournment which I allowed on May 13, 2014.

A Hearing was scheduled to take place on May 13, 2014. I allowed an adjournment at that time for the Applicant to retain Counsel and to provide productions.

In the meantime, the Insurer had brought a Motion to dismiss the Applicant’s Application for Arbitration which was served prior to the Applicant having retained Counsel as noted above, and shortly thereafter becoming unrepresented once more.

The Hearing on January 14, 2016 was convened to hear the Insurer’s Motion to dismiss. The Applicant was not represented.

The Applicant came to the Hearing on January 14, 2016, which had been convened to hear the Insurer’s Motion. He had failed to file further productions within the deadline specified as a term of the May 13, 2014 adjournment. However, he did bring to the Hearing a copy of an additional OCF-2 (Employer’s Confirmation Form), which supplemented the OFC-2s previously submitted. I entered this as Exhibit 3. He also filed at the Hearing employer payroll transactions and pay stubs for 2007 and 2011. I entered these as Exhibit 2.

Insurer’s Motion

The Insurer seeks that the Arbitration be dismissed and also seeks an Order for costs of the Arbitration.

Dismissal is being sought under Rule 68 of the Dispute Resolution Practice Code (“the DRPC”), which provides 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.

The Insurer submits that the Motion to dismiss should be allowed as there is no evidentiary basis upon which the Applicant’s claim could succeed at Arbitration. It roots this submission in the Applicant’s repeated non-compliance with Section 33(1) of the Schedule, which essentially imposes a duty on the Applicant to provide information. Over the years since the action, the Insurer submits that requests for productions related to the claimed benefits have largely gone unanswered, and included in these unanswered requests are production of the accident benefits file pertaining to a subsequent accident involving the Applicant and the York Regional Transit Authority, which would permeate all three files because of the potential for overlapping claims.

The Insurer cites various authorities where the Applicants generally have not appeared in Hearings, and in various ways Arbitrators have found them to have abandoned all interest in their Arbitrations. These cases will be briefly discussed below.

The Applicant’s Response

Mr. Pilieci did not provide a very cogent response. I take into account that he represented himself and some consideration is allowed for that. The fact remains that it was difficult to obtain clear evidence from him, and such that he provided only served to underscore how incomplete his evidence is, especially from the point of view of attempting to properly adjust his file.

He said that he did provide various OCF-2 statements, as well as pay stubs and transaction history summaries for 2007 and 2009, not explaining in any cogent way the differences between the OCF Forms, nor the fact there were no pay stubs or other evidence which had him working at the time of the accident or within the required period preceding the accident. He said he finally had a T4 Form completed as requested, but did not bring it to the Hearing because it had been misplaced.

He failed to offer a reasonable explanation, beyond putting the blame on his then-Counsel, as to why housekeeping/attendant details were only filed in 2013 – about four years after the accident.

He saw various doctors and a treatment provider since June 13, 2014 but he produced no correspondence or invoices from any of them. He had no records from his subsequent accident, which the Insurer requested on a number of occasions.

He was prepared to conduct his case by himself and opposed the Insurer’s Motion because he was of the view that he did in fact provide information which should be arbitrated on.

Authorities

The Insurer provided three authorities and the Applicant none.

In Ganelin and State Farm Mutual Automobile Insurance Company,² Arbitrator Feldman allowed the Motion to dismiss because he found that in addition to failure to fulfill his undertakings, the Applicant failed on two occasions to attend an Examination Under Oath and failed to appear at the Arbitration Hearing.

In Riley and Pafco Insurance Company,³ the Applicant continuously failed to attend Pre-Hearings and Hearings despite having been sent Notices to Attend, which he ignored.

In Lukacsi and Intact Insurance Company,⁴ the Applicant arrived at the Hearing unrepresented and unprepared. He blamed his lawyers for failure to produce various documents. Arbitrator Sapin indicated that the matter “has languished due to his well-documented and longstanding failure to provide key information to support his claims or to otherwise move the matter forward since the Application for Arbitration was filed ….. more than two years ago.”⁵ Nevertheless, Arbitrator Sapin did not allow the Insurer’s Motion to dismiss and ordered that the Arbitration proceed on specified terms.

Decision and Reasons

The Motion for dismissal is denied.

Ganelin and Riley are distinguishable because unlike the Applicants therein, the Applicant, Mr. Pilieci, has in fact attended two Hearings, a Pre-Hearing and an Examination Under Oath. He did provide documents, even though there is much to be desired in that area. The two cases were largely premised on the Applicant’s almost complete absence in Hearings or examinations – in short, failures to attend, which is not the case here.

Lukacsi is somewhat closer to the facts here. However, Arbitrator Sapin allowed the Arbitration to proceed.

The Applicant’s behavior of non-compliance is worthy of strong criticism, but it does not carry so far as denying him the right to present his evidence at a Hearing.

The Motion is therefore denied and the Arbitration is allowed to continue.

However, the next step in the proceeding will be a resumption of the Pre-Hearing by teleconference, at which I will preside for the purpose of setting Hearing dates and other matters.

EXPENSES:

Expenses are deferred to the Hearing Arbitrator.

March 15, 2016

Harvey Savage Arbitrator

Date

Financial Services Commission of Ontario