Janarththani Manickam v. Personal Insurance Company of Canada, 2017 ONFSCDRS 10

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 10

FSCO A14-007767

BETWEEN:

JANARTHTHANI MANICKAM

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Arbitrator Charles Matheson

Heard: By teleconference call on December 5, 2016

Appearances: Ms. Janarththani Manickam did not participate

Mr. Vlad Stefanescu participated for Personal Insurance Company of Canada

Issues:

The Applicant, Ms. Janarththani Manickam, was injured in a motor vehicle accident on June 20, 2013. She applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Manickam 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 the Application for Arbitration be dismissed?
Is the Applicant liable to pay Personal’s reasonable legal costs of the Motion?

Result:

The Application for Arbitration is dismissed, forthwith.
The Applicant shall pay Personal its legal costs of $1,250.00, inclusive of disbursements and all applicable taxes.

EVIDENCE AND ANALYSIS:

Background

The Applicant has hired two different legal firms as her legal representative during a series of six Pre-Hearings in this matter over the last 12 months. On October 24, 2016, at the fifth Pre-Hearing in this matter, a Motion to be removed from the record was heard and granted to The Law Office of Kesari Arumugaraj.

A sixth Pre-Hearing, which the Applicant did not participate, was set for December 5, 2016, in order for the Applicant to assign another lawyer to represent her, or for her to participate in settlement discussions with the Insurer. The Pre-Hearing letter of October 24, 2016 made it clear that the Applicant was required to attend or her new lawyer could attend on her behalf. This letter also made it clear what the consequences were if she continued to ignore this process.

The Applicant did not participate in the December 5, 2016 Pre-Hearing and as such, the Insurer made a verbal Motion for the dismissal of the Application for Arbitration, with costs.

Decision

I have checked with both the Insurer and ADR Chambers staff, and have found that the registered letter of October 24, 2016 was delivered to the Applicant’s last known address and that neither party has heard back from the Applicant. I personally called the Applicant’s telephone number on file and left a message, urging the Applicant to participate in the December 5, 2016 Pre-Hearing.

The Dispute Resolution Practice Code, which speaks to the dismissal of an Arbitration without a Hearing, is 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.

I am satisfied that the Applicant knew of this proceeding, and the consequences for not participating.

I am satisfied that by the actions of the Applicant over the past 12 months, she has given proper grounds for dismissal pursuant to Rule 68.1. This is demonstrated by the Applicant’s actions of having to hire two law firms for her to complete an Examination Under Oath as well as not following an Arbitrator’s Orders. The Applicant has not been able to produce any positive objective criterion for her case, and in fact, it appears she has now abandoned her claim entirely.

Therefore, for the reasons given above, I now find and order that this Application for Arbitration be dismissed, forthwith.

EXPENSES:

Under section 68.4 of the Dispute Resolution Practice Code, outlined above, I am able to address and attach any conditions to the dismissal of this Application for Arbitration.

The Insurer requested that a reasonable amount of expenses be assessed for its Motion as the Applicant has been under suspicion of fraud in this accident. Further, the Applicant has been evasive and not forthright during the entire dispute resolution process.

In my view, a reasonable amount to be recovered by the Insurer is $250.00 per Pre-Hearing. That would encompass two hours for each Pre-Hearing and another half hour for preparation time.

For the above reasons, I now find and order that the Applicant shall pay the Insurer its legal costs of $1,250.00, inclusive of disbursements and all applicable taxes.

January 16, 2017

Charles Matheson

Arbitrator

Date