Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 114

FSCO A16-000881

BETWEEN:

JORDAN RICHARDS

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: In person at ADR Chambers on April 5, 2017

Appearances: Ms. Maria Taverniti, lawyer, appeared for Mr. Jordan Richards Ms. Wilhelmena (Rosalind) Eastmond, lawyer, appeared for Certas Direct Insurance Company

Issues:

The Applicant, Mr. Jordan Richards, was injured in a motor vehicle accident on November 4, 2014. He applied for and received statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Jordan Richards 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 Taverniti Vashishth LLP be removed as counsel of record?
Should the Application for Arbitration be dismissed?
Is the Applicant liable to pay the Insurer’s reasonable legal costs of the Arbitration?

Result:

Taverniti Vashishth LLP is removed, forthwith, as counsel of record for this Arbitration.
The Application for Arbitration is dismissed.
The Applicant shall pay the Insurer its legal costs of $3,000.00, inclusive of disbursements and all applicable taxes.

EVIDENCE AND ANALYSIS:

Background

The Applicant has brought this Application for Arbitration which contained such disputes as a non-earner benefit and a series of treatment plans and costs of exams which were noted in the first Pre-Hearing letter, dated June 29, 2016. A second Pre-Hearing was held on March 20, 2017, where Applicant’s counsel was seeking an adjournment of this proceeding and also wishing to bring a Motion to be removed as counsel on record. At both the Pre-Hearings, the Applicant did not participate, and did not give reasons why he could not participate.

The Pre-Hearing Arbitrator denied the adjournment and postponed the Motion for Applicant’s counsel to get off the record so that it could be heard during this Hearing.

Insurer’s counsel suggested that they would be bringing a Motion to dismiss the Application for Arbitration with costs, should the Applicant not participate in this Arbitration.

Decision

I have checked with both the Insurer and ADR Chambers today, and have found that the Applicant did not appear at the wrong address for the Hearing. I waited 20 minutes past 10 a.m. to start the Arbitration, just in case of any transportation issues causing the Applicant to be late. As the Applicant did not attend this Hearing, Applicant’s counsel proceeded with its Motion.

Applicant’s counsel brought its Motion to be removed from the record and evidenced 9 letters of communication to the Applicant since January 2017 to date. More telephone calls were made in support of these letters. These letters included requests for direction within the context of the Arbitration and requests for the Applicant to sign authorization letters to have certain medical and other records released to the law firm. All of these letters went unanswered. The Applicant was finally contacted by counsel, via telephone, who advises that she made further recommendations to the Applicant, including the importance of attending medical assessments that the Insurer had scheduled and rescheduled for him.

Applicant’s counsel provided proof that the last known address of the Applicant was accurate as the Applicant had responded to mail sent to this address. Counsel also verified that the Applicant was aware of this Arbitration as late as the telephone conversation she had with him on March 3, 2017.

Ms. Taverniti argued that the client-lawyer relationship had broken down in light that the client had not listened to or acted upon any of her suggestions or instructions since January 2017.

Insurer’s counsel had no objection to opposing counsel’s Motion.

After reviewing the file and the Insurer verifying that the Applicant did not attend four pre- arranged medical assessments and did not participate at any previous steps of the process including settlement discussions, I am satisfied that the client-lawyer relationship did indeed collapse. Therefore I find that Taverniti Vashishth LLP is removed, forthwith, as counsel on record for this Arbitration.

A second Motion was brought by the Insurer to dismiss this Application for Arbitration, with costs. Insurer’s counsel argued that the Applicant had failed to adduce any evidence that would support his claim for any benefits under the Schedule. The Applicant has not co-operated with any statutory requests for information nor has he participated in any meaningful way in this dispute resolution process, thus making his Application for Arbitration frivolous and vexatious in nature. The Insurer argues that the Applicant’s lack of any positive actions in this process has hindered and delayed any early resolution, thus causing more or added costs to the Insurer.

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

I am satisfied that by the actions of the Applicant over the past 4 months, he has given proper grounds for dismissal. In my view, the Applicant has not produced any positive objective criterion for his case, and in fact, it appears he has now abandoned his claim entirely.

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

EXPENSES:

The Insurer argues that Section 12 (2) of the Expense Regulation applies in this case. It reads, in part, as follows:

(2) An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

Each party’s degree of success in the outcome of the proceeding.
Any written offers to settle made in accordance with subsection (3).
Whether novel issues are raised in the proceeding.
The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.

The Insurer requested that a reasonable amount of expenses be assessed for its Motion, as the Applicant has not appeared at four scheduled assessments, all of which have cost the Insurer. Further, the Applicant has been evasive and not forthright during the entire dispute resolution process. The Insurer requests a token cost of $3,000.00, inclusive of taxes and disbursements, be ordered, as the Applicant is not here to argue against same.

In my view, the Insurer is requesting a reasonable amount in light that the costs requested does not come close to covering the missed medical assessment costs.

For the above reasons, I now find and order that the Applicant shall pay the Insurer its legal costs of $3,000.00, inclusive of disbursements and all applicable taxes.

April 17, 2017

Charles Matheson Arbitrator

Date

Financial Services Commission of Ontario