DECISION ON A MOTION

Before: Arbitrator Robert A. Creo

Heard: By teleconference on March 28, 2017

Appearances: Ms. Tanya Biszko did not participate Mr. Matus Averbuch participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. Tanya Biszko, was injured in a motor vehicle accident on April 27, 2015, and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Biszko, through her representative at that time, 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 Applicant’s pending claim be dismissed with prejudice?
Is the Insurer entitled to all or part of its expenses and costs of the Motion and disbursements, in the amount of $5,744.00?

Result:

The Motion to Dismiss is granted with prejudice.
The Insurer is entitled to the amount of $3,546.40 from the Applicant.

EVIDENCE AND ANALYSIS:

I conducted a Pre-Hearing on January 12, 2017 at 9:00 a.m., by teleconference. The Applicant’s Representative, Mr. David Carranza of ICS Legal Professional Corporation, made a Motion to withdraw from the record based upon the failure of the Applicant to cooperate or to respond to any communications. I attempted to contact the Applicant during the Pre-Hearing at her telephone number, which was active but went unanswered, with a voice message response. The Applicant did not contact or otherwise respond to myself or ADR Chambers.

I sent a letter with Notice of Motion to the Applicant, dated January 12, 2017, scheduling a teleconference for March 28, 2017 at 9:00 a.m., to hear the Motion to Dismiss being filed by the Insurer. The letter contained the detailed instructions on how to participate in the teleconference. It contained the following statement, in bold type: This letter shall serve as sufficient notice of hearing.

The letter from the Insurer, dated March 10, 2017, accompanying the Affidavit of Service, again specified the hearing of the Motion to Dismiss time, date, and instructions to participate.

The Affidavit of Service attests to the Applicant being personally served on Friday March 10, 2017 at 9:53 p.m., noting verbal admission of identity.

At no time were any communications received by the Insurer, the Arbitrator, ADR Chambers or FSCO, indicating that the Applicant intended to contest either Motion or pursue her claim.

At the teleconference on March 28, 2017, the Applicant did not participate. The Arbitrator waited over thirty (30) minutes before granting the Motion to Dismiss and awarding expenses against the Applicant in favor of the Insurer.

EXPENSES:

The Arbitrator awards sixty (60%) of the expenses as partial indemnity, plus disbursements, claimed by the Insurer in preparing for the Arbitration process in the sum of $3,546.40. With the Motion to Dismiss was an itemized Bill of Costs and supporting documentation in the total amount claimed of $5,494.00 in attorney fees and $250.00 in disbursements.

April 10, 2017

Robert A. Creo Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 110 FSCO A16-001808

BETWEEN:

TANYA BISZKO Applicant

and

AVIVA CANADA INC. Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

The Motion to Dismiss is granted with prejudice.
The Insurer is entitled to the amount of $3,546.40 from Applicant.