Neutral Citation: 2016 ONFSCDRS 90 FSCO A13-009882, A13-011975 and A13-011976

BETWEEN:

RANDY AMOFA, MARY-HENRIETTA MUSISI and KIMBERLEY STANFORD Applicants

and

PAFCO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish Heard: By telephone conference on January 14, 2016

Appearances: Mr. Randy Amofa did not participate Ms. Mary-Henrietta Musisi did not participate Ms. Kimberley Stanford did not participate Ms. Victoria Gorbenko participated for Mr. Randy Amofa, Ms. Mary-Henrietta Musisi and Ms. Kimberley Stanford Ms. Aimee Draper participated for Pafco Insurance Company

Issues:

The Applicants, Mr. Randy Amofa, Ms. Mary-Henrietta Musisi, and Ms. Kimberley Stanford were injured in a motor vehicle accident on September 14, 2011 and sought accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicants, through their 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 Hearing are:

Should Kanevsky Law Office be permitted to withdraw from this proceeding as the Applicants’ legal representative?
Should the Applicants’ Applications for Arbitration be dismissed?
Should Pafco be awarded expenses concerning these Applications for Arbitration?

Result:

Kanevsky Law Office is permitted to withdraw from these proceedings for Ms. Mary-Henrietta Musisi. Kanevsky Law Office is not permitted to withdraw from proceedings for Mr. Randy Amofa and Ms. Kimberley Stanford.
The Applicants’ Applications for Arbitration are dismissed.
The Applicants will each pay $750.00 to Pafco for expenses.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on October 30, 2015 at 9:30 a.m., by telephone conference call arranged by ADR Chambers. The Applicants did not participate.

On October 30, 2015, I sent letters to the Applicants at their last known addresses advising them of the missed Pre-Hearing discussion. The letters provided the Applicants with an Attendance Notice, setting a date of January 14, 2016 at 9:00 a.m., to hear the issues identified in their Applications for Arbitration. This was scheduled to be heard by telephone conference call. The letters also advised the Applicants if they do not contact ADR Chambers or participate in any further proceedings, I would consider Pafco’s request to dismiss their Applications for Arbitration and award expenses.

On January 11, 2016, ADR Chambers received three Motions from Kanevsky Law Office, requesting they be permitted to withdraw from these proceedings due to a breakdown in the solicitor-client relationship with the Applicants. The Motion materials outlined the numerous attempts made by Kanevsky Law Office to contact the Applicants by letter and telephone.

On January 14, 2016 at 9:15 a.m., I proceeded to contact the Applicants at the phone numbers which were listed on their Applications for Arbitration and the telephone numbers which their legal representative, Kanevsky Law Office, had listed within their Motion materials. I was unable to reach the Applicants by telephone.

As well, ADR Chambers had not been contacted by the Applicants by January 14, 2016.

Request from Applicants’ Representative to be removed from the Record

During the Hearing on January 14, 2016, I heard oral submissions from Ms. Gorbenko requesting that Kanevsky Law Office be permitted to withdraw as representative of the Applicants.

After reviewing the Motion materials with respect to Mr. Amofa and Ms. Stanford, I noted the following errors: the Motion material for Mr. Amofa was sent to the name and address of Ms. Stanford; the Arbitration file number noted on Mr. Amofa’s Motion was incorrect; and the Motion material served upon the Insurer for Mr. Amofa differed from the Motion material provided to ADR Chambers. The Motion material for Ms. Stanford also noted incorrect Arbitration file numbers.

Due to the errors noted above, I am not granting Kanevsky Law Office’s request to be permitted to withdraw as the representative for Mr. Randy Amofa and Ms. Kimberley Stanford in their Applications for Arbitration.

However the Motion material filed in respect to the Applicant, Ms. Mary-Henrietta Musisi, does not appear to contain any errors and a copy was provided to counsel for the Insurer and the Applicant, Ms. Mary-Henrietta Musisi, at her last known address. The Insurer did not oppose the Motion.

Thus I am permitting Kanevsky Law Office to withdraw as the representative for Ms. Mary-Henrietta Musisi in her Application for Arbitration.

Request for Repayment by Insurer

Ms. Draper stated at the Hearing that the Insurer was requesting a repayment for Section 44 Insurer Examinations in which costs for these assessments were incurred by the Insurer. Ms. Draper claimed repayment costs for these assessments as follows:

A repayment from Mr. Amofa in the amount of $5,929.57 for Insurer Examinations attended by Mr. Amofa with Dr. Sekyi-Otu in October 2011 and Dr. Gryfe in November 2011.
A repayment from Ms. Musisi in the amount of $957.34 for a no show attendance to a scheduled Insurer Examination on June 27, 2012 with Dr. Fielden.
A repayment from Ms. Stanford in the amount of $3,102.97 for a failure to attend a scheduled Orthopedic Assessment on January 12, 2012 and for an Insurer Examination attended by Ms. Stanford with Dr. Fielden in which a report was issued in November 2012.

Ms. Draper stated the amounts being requested as a repayment had not been mediated, nor had the Insurer requested the amounts being requested as a repayment be added to this Arbitration prior to January 14, 2016.

The Dismissal

Ms. Draper advised that the Insurer is requesting the Applicants’ Applications for Arbitration be dismissed with prejudice.

The Insurer provided no statutory authority or no case law to support the request that the Applications for Arbitration be dismissed with prejudice.

For the reasons that follow, the Applicants’ Applications for Arbitration are dismissed.

As of January 14, 2016, I was unable to contact the Applicants, they had yet to contact their legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

I am satisfied that the Applicants were given notice of all of the proceedings related to their Arbitration at their last known addresses.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in their absence.

The Applicants bear the onus of proving entitlement to the claimed benefits. Since they did not participate at their Hearings and no evidence was presented to support their claims, their Applications for Arbitration are dismissed.

EXPENSES:

I note the amounts requested by Pafco as a repayment for which the Applicants attended and failed to attend Section 44 Insurer Examinations. I will be not be awarding the amounts noted by Pafco as a repayment as they were not mediated, nor had Pafco requested the amounts being requested as a repayment be added to this Arbitration prior to January 14, 2016.

Pafco requests expenses in these proceedings be awarded against each of the Applicants in the amount of $750.00 inclusive of HST. Pafco stated that the Applicants failed to advance their Applications for Arbitration and have also demonstrated no interest in pursuing their Applications for Arbitration. Based on the Applicants’ lack of participation in the Arbitration process I agree with Pafco’s submissions.

For the reasons above, I find Pafco’s request that expenses be awarded in the amount of $750.00 inclusive of HST against each of the Applicants in this Arbitration proceeding to be reasonable.

March 21, 2016

Kimberly Parish Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

Kanevsky Law Office is permitted to withdraw from these proceedings for Ms. Mary-Henrietta Musisi. Kanevsky Law Office is not permitted to withdraw from proceedings for Mr. Randy Amofa and Ms. Kimberley Stanford.
The Applications for Arbitration for Ms. Randy Amofa, Ms. Mary-Henrietta Musisi, and Ms. Kimberley Stanford are dismissed.
Each Applicant shall pay to Pafco forthwith, $750.00 inclusive of HST, for expenses concerning each of their Applications for Arbitration in this proceeding.