Neutral Citation: 2017 ONFSCDRS 130

FSCO A16-002010

BETWEEN:

DENINA SULEJMANOVIC

Applicant

and

PORTAGE LA PRAIRIE MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Chuck Matheson

Heard: In person at ADR Chambers on April 19, 2017

Appearances: Mr. Matthew Cino, Lawyer, appeared for Mrs. Denina Sulejmanovic Ms. Cara Boddy, Lawyer, appeared for Portage La Prairie Mutual Insurance Company

Issues:

The Applicant, Mrs. Denina Sulejmanovic, was injured in a motor vehicle accident on April 19, 2013. She applied for and received statutory accident benefits from Portage La Prairie Mutual Insurance Company (“Portage”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Denina Sulejmanovic 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 Bartolini, Berlingieri, Barrafato, Fortino LLP be removed as counsel of record?
Should the Application for Arbitration be dismissed?
Is the Applicant liable to pay Portage’s reasonable legal costs of the Arbitration?

Result:

Bartolini, Berlingieri, Barrafato, Fortino 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 $1,000.00, inclusive of disbursements and all applicable taxes.

EVIDENCE AND ANALYSIS:

Background

The Applicant has brought this Application for Arbitration which contained such disputes as Income Replacement Benefits and whether or not the Applicant’s injuries were within the Minor Injury Guideline which were noted in the first Pre-Hearing letter, dated August 17, 2016.

I note and correct the Pre-Hearing letter which states that Mr. Barrafato represented the Applicant during the teleconference; in fact, Ms. Kasia Grzybowski, Paralegal, represented the Applicant who was not present or part of the teleconference for this Pre-Hearing. The Applicant did not explain why she was not available for the Pre-Hearing.

Applicant’s counsel notified ADR Chambers and the parties in a letter, dated March 16, 2017, that they were going to bring a Motion to be removed as counsel of record. Within the March 16, 2017 letter, reasons for the client-solicitor relationship breakdown were listed. Applicant’s counsel requested a resumption of the Pre-Hearing so that counsel could be removed from the record. 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 ADR Chambers today, and have found that the Applicant did not appear at the wrong address for the Hearing or call our office to seek instructions about the Hearing. After waiting 20 minutes past 10:00 a.m. to start the Arbitration, just in case of any transportation issues causing the Applicant to be late, I commenced the Hearing because it became apparent that the Applicant was not attending this Hearing. Applicant’s counsel proceeded with his Motion.

Applicant’s counsel brought his Motion to be removed from the record and evidenced 7 letters and more telephone calls that were made to the Applicant since August 2016 to date. These communications 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, on March 15, 2017, who advised that he (Mr. Barrafato) made further recommendations to the Applicant, including the importance of attending this Hearing. All further attempts to contact and/or meet with the Applicant had failed, thus the generation of the March 16, 2017 off the record letter.

Applicant’s counsel provided proof of the last known address of the Applicant was accurate as the Applicant had responded by telephone to mail sent to this address. Counsel also verified that the Applicant was aware of this Arbitration as late as the telephone conversation on March 15, 2017.

Mr. Cino argued that the client-solicitor relationship had broken down as the client had not listened to or acted upon any of his firm’s suggestions or instructions since August 2017.

Insurer’s counsel took no position regarding Applicant’s counsel’s Motion.

After reviewing the file and the Insurer verifying that the Applicant did not attend the Pre-Hearing in August 2016 and did not participate at any previous steps of the process including settlement discussions, I am satisfied that the client-solicitor relationship did indeed collapse. Therefore I find that Bartolini, Berlingieri, Barrafato, Fortino LLP is removed, forthwith, as counsel of record for this Arbitration.

A second Motion was brought immediately 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 her claim for any benefits under the Schedule. The Applicant has not co-operated with any statutory requests for information nor has she participated in any meaningful way in this dispute resolution process, thus making her 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 8 months, she has given proper grounds for dismissal. In my view, the Applicant has not produced 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:

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

12 (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 this Arbitration. Further, the Applicant has been evasive and not forthright during the entire dispute resolution process. The Insurer requests a token cost of $1,000.00, 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 as the costs requested does not come close to covering the preparation costs of an Arbitration.

For the above reasons, I now find and order that the Applicant shall pay the Insurer its legal costs of $1,000.00, inclusive of disbursements and all applicable taxes.

May 1, 2017

Chuck Matheson Arbitrator

Date

Financial Services Commission of Ontario