Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 92
FSCO A14-005603 & A14-010360
BETWEEN:
JANELLE CADINE NELSON and MARIAH GUY
Applicants
and
PAFCO INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Benjamin Drory
Heard: By teleconference on February 8, 2016
Appearances: Ms. Janelle Cadine Nelson did not participate Ms. Mariah Guy did not participate Ms. Olga Kanevsky participated for Ms. Janelle Cadine Nelson and Ms. Maria Guy Mr. Matthew Owen participated for Pafco Insurance Company
Issues:
The Applicants, Ms. Janelle Cadine Nelson and Ms. Mariah Guy, were injured in a motor vehicle accident on November 11, 2012 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 Ms. Nelson and Ms. Guy, 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 Ms. Nelson’s and Ms. Guy’s Applications for Arbitration be dismissed?
Should Kanevsky Law Office be permitted to be removed from the record as solicitor for Ms. Nelson and Ms. Guy?
Is Pafco entitled to its expenses of the proceeding?
Result:
Ms. Nelson’s and Ms. Guy’s Applications for Arbitration are dismissed.
Kanevsky Law Office is removed from the record as solicitor for Ms. Nelson and Ms. Guy.
All parties are invited to independently submit written submissions to me respecting expenses, within 30 days of the date of this decision.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion for Ms. Nelson’s case was held at the offices of ADR Chambers on November 24, 2015 at 3:00 p.m., at which Ms. Nelson failed to appear.
On that same day, I sent a letter to Ms. Nelson at her last known address to advise her of the missed Pre-Hearing discussion. The letter provided Ms. Nelson with an Attendance Notice, setting a date of February 8, 2016 starting at 10:00 a.m., to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I might dismiss her application and consider Pafco’s request for expenses.
A Pre-Hearing discussion in Ms. Guy’s case was held at the offices of the Financial Services Commission of Ontario on December 21, 2015 at 11:30 a.m., at which Ms. Guy failed to appear.
The matter was sent to ADR Chambers by the Financial Services Commission of Ontario to be combined with Ms. Nelson’s matter, as the cases arose out of the same accident and set of circumstances.
A further Pre-Hearing discussion in Ms. Guy’s case was held by teleconference arranged by ADR Chambers on January 7, 2016 at 3:00 p.m. Ms. Guy again did not participate.
On that same day, I sent a letter to Ms. Guy at her last known address to advise her of the missed Pre-Hearing discussion. The letter provided Ms. Guy with an Attendance Notice, setting a date of February 8, 2016 starting at 10:00 a.m. (the same time as had already been scheduled regarding Ms. Nelson’s case), to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I might dismiss her application and consider Pafco’s request for expenses.
The Dismissals
For the reasons that follow, Ms. Nelson and Ms. Guy’s Applications for Arbitration are dismissed.
Neither Ms. Nelson nor Ms. Guy participated in the teleconference on February 8, 2016. In Ms. Nelson’s case, I called twice at both her last-known number in the Financial Services Commission of Ontario’s registration database, and the last-known number that her legal representative provided me with. It was clear that both numbers were out of service. In Ms. Guy’s case, I called her last-known number in the Financial Services Commission of Ontario’s registration database, which matched that provided to me by her legal representative. I called twice, with no response, and it was clear that voice mail had not been initialized respecting the number.
I am satisfied that both Ms. Nelson and Ms. Guy were given notice of all of the proceedings related to their Arbitrations at their last known addresses.
Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in their absences.
Ms. Nelson and Ms. Guy bear the onus of proving entitlement to the claimed benefits. Since they did not appear at the Hearing and no evidence was presented to support their claims, this Arbitration is dismissed.
The Motions for Kanevsky Law Office to be removed from the Record as Solicitor to Ms. Nelson and Ms. Guy
Prior to the Hearing, I received Motions from Kanevsky Law Office, dated January 5, 2016 and January 27, 2016, for Ms. Nelson and Ms. Guy respectively, requesting that their firm be removed as solicitor of record for Ms. Nelson and Ms. Guy in this proceeding.
Having reviewed the written materials submitted, and considering the totality of the circumstances, I am satisfied that there has been breakdowns in the solicitor-client relationships. Accordingly, I order that Kanevsky Law Office be removed from the record as solicitors for Ms. Nelson and Ms. Guy.
EXPENSES:
All parties are invited to submit written submissions to my attention, via ADR Chambers, within 30 days of the date of this Order, respecting what (if any) they believe would be an appropriate award of expenses in this matter, pursuant to Rule 75 of the Dispute Resolution Practice Code.
March 21, 2016
Benjamin Drory
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 92
FSCO A14-005603 & A14-010360
BETWEEN:
JANELLE CADINE NELSON and MARIAH GUY
Applicants
and
PAFCO 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:
Ms. Nelson’s and Ms. Guy’s Applications for Arbitration are dismissed.
Kanevsky Law Office is removed from the record as solicitor for Ms. Nelson and Ms. Guy.
All parties are invited to independently submit written submissions to me respecting expenses, within 30 days of the date of this decision.
March 21, 2016
Benjamin Drory
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.