Neutral Citation: 2017 ONFSCDRS 111

FSCO A16-000005

BETWEEN:

ZAHRO BOTAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: In writing in accordance with Rule 68 of the Dispute Resolution Practice Code

Appearances: No one appearing for Ms. Botan

Timothy Crljenica for Economical Mutual Insurance Company

Issues:

The issue to be decided at this time is:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, should this application be dismissed without a hearing because it is frivolous, vexatious or was commenced in bad faith?

Result:

This application is dismissed.

EVIDENCE and ANALYSIS

The applicant, Ms. Zahro Botan, claims she was injured in a motor vehicle accident on September 8, 2013. She applied for statutory accident benefits under the Schedule¹ from Economical Mutual Insurance Company (“Economical”). Disputes arose over her entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and, on January 4, 2016, Ms. Botan applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the time the application was filed, Ms. Botan was represented by Kanevsky Law Office.

A pre-hearing conference took place on August 26, 2016. Although she was served with notice, Ms. Botan did not appear or participate. Her then lawyer, Sarah Brown from Kanevsky Law Office, attended. Thereafter, Kanevsky Law Office sought an order removing them as Ms. Botan’s solicitors of record. The motion was made on notice to Ms. Botan, who was served by both Kanevsky Law Office and by FSCO.

On October 21, 2016, I heard the motion by Kanevsky Law Office to be removed as Ms. Botan’s legal representatives in this arbitration proceeding. I granted their request. A copy of my order dated October 27, 2016 (removing Kanevsky Law Office from the record) was sent to Ms. Botan’s last known address by courier and regular mail. The courier copy was returned, but not the mailed copy.

On February 17, 2017, following a request by Economical, I wrote to Ms. Botan at her last known mailing address, advising that it was my intention to grant Economical’s request to dismiss this application unless Ms. Botan could provide reasonable grounds for doing otherwise.

I permitted Ms. Botan until March 3, 2017 to deliver any written submissions she wished me to consider, setting out the grounds upon which she objected to the dismissal of the proceeding or setting out any other issues or concerns.

To date, Ms. Botan has not responded or provided any submissions.

In support of their request for a dismissal, Economical submits that Ms. Botan has shown no interest in pursuing her accident benefits claim and is not listed as an occupant in the motor vehicle involved in the accident.

Ms. Botan has failed to participate in a process that she started. While I have insufficient evidence to conclude that this application has been commenced in bad faith, I am satisfied that Ms. Botan has demonstrated no interest in pursuing this claim. In these circumstances, the proceeding has now become frivolous or vexatious, and I am satisfied that it would be unreasonable to force Economical to expend more resources on this matter. Accordingly, this application is dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code.

April 13, 2017

Jessica Kowalski Date

Arbitrator

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario