John Kennedy v. Belair Insurance Company Inc., 2017 ONFSCDRS 153

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 153

FSCO A14-004712

BETWEEN:

JOHN KENNEDY

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: November 22, 2016 by telephone conference

Appearances: No one appearing for Mr. Kennedy

Christopher F. Reil for Belair Insurance Company Inc.

Issues:

The Applicant, John Kennedy, was injured in a motor vehicle accident on July 9, 2009. He applied for non-earner benefits (“NEBs”) from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ Belair denied Mr. Kennedy’s entitlement to NEBs. The parties were unable to resolve their disputes through mediation, and Mr. Kennedy applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Belair seeks an order that this arbitration be dismissed because Mr. Kennedy has failed to participate in this proceeding and has taken no steps to advance his claim.

Result:

The application is dismissed.

Mr. Kennedy’s application for NEBs was filed by a lawyer who advised by accompanying letter that, although he was filing the application on Mr. Kennedy’s behalf, he would not be representing Mr. Kennedy and that Mr. Kennedy would be representing himself in the arbitration process.

Since then, this matter has faced significant delays since it was scheduled to proceed to a pre-hearing on June 24, 2015, when Mr. Kennedy told the pre-hearing arbitrator that he was not ready to proceed. The arbitrator noted in his pre-hearing letter dated June 24, 2015 that Mr. Kennedy exhibited signs of mental difficulty that raised questions about his capacity to proceed. The arbitrator wrote that Mr. Kennedy told him that he could not remember filing the application for arbitration; was unaware of the pre-hearing; and had sustained a head injury that compromises his mental capacity.

The arbitrator informed Mr. Kennedy that he should consider retaining a representative and adjourned the pre-hearing to September 4, 2015 to allow Mr. Kennedy time to do so. Finally, the arbitrator concluded that, if Mr. Kennedy did not retain a representative by September 4, 2015 (the resumed pre-hearing date) and if he continued to exhibit signs of mental difficulty, he would schedule a hearing to determine whether Mr. Kennedy had the mental capacity to proceed in the dispute resolution process on his own.

That hearing proceeded before me on November 26, 2015. During the hearing, Mr. Kennedy advised that although he had not yet retained a lawyer, he did have a friend who might be able to help him with his application. Although that friend was with Mr. Kennedy at the time of the hearing², Mr. Kennedy did not ask him to assist. He also advised that he was still considering retaining counsel. I found that Mr. Kennedy lacked the capacity to proceed in the dispute resolution process on his own and adjourned the matter to January 29, 2016 to follow up on the status of Mr. Kennedy’s representation.³

Thereafter, Mr. Kennedy took no steps to retain a representative or to arrange for his friend to assist him, although he later disclosed that he had a son who might also be willing to help him. When Mr. Kennedy would not disclose the name or contact information of his friend, or later, his son, I contacted the Office of the Public Guardian and Trustee (“PGT”) in accordance with Rule 10.6 of the Dispute Resolution Practice Code (the “Code”), to seek their assistance. I adjourned the hearing to April 4, 2016. Mr. Kennedy did not participate. I further adjourned the hearing to September 9, 2016 to allow time for the PGT to consider my request.

Mr. Kennedy again did not participate on September 9, 2016. By that time, the PGT had advised that conditions that would warrant their intervention were not present in Mr. Kennedy’s case.⁴ I once more adjourned the hearing to November 22, 2016 to allow Mr. Kennedy the opportunity to participate. On October 21, 2016, in advance of the November 22, 2016 hearing, counsel for Belair served Mr. Kennedy with notice of its motion to dismiss Mr. Kennedy’s application because of his delays in taking any steps to move his application forward or to retain counsel. Hearing Notices from the Commission also advised Mr. Kennedy that his application could be dismissed if he did not participate.

Mr. Kennedy did not participate and has not returned my calls to date. Despite requests, he has not provided the Commission or Belair with the contact information for either his friend or his son who he said might help him, nor did he have either of them contact the Commission or participate in this application, even when served with Belair’s notice to seek a dismissal of the application. There is also no evidence before me that Mr. Kennedy has taken any steps to retain counsel.

While I am satisfied that Mr. Kennedy was not capable of advancing his claim on his own, he did demonstrate an awareness that others could help him and had used the services of a lawyer before. He also expressed interest in looking for new counsel but has not done so. Mr. Kennedy has not disclosed the names of people who he said can help him, or shown that he has tried to retain another representative, despite having had ample time. There is no documentary or other evidence before me to support an inability to manage his property, and there was no evidence of Mr. Kennedy’s incapacity with regard to his own basic financial management that would trigger the PGT’s involvement. Finally, as a guardian of last resort, the PGT would not intervene without evidence that Mr. Kennedy’s son or friend were unable to help or had declined to help.

Mr. Kennedy has had ample time to seek help and to respond to requests for the contact information of those who might help him. The hearing was resumed on multiple occasions to give him the opportunity to arrange for assistance or representation and to provide to FSCO the names of persons who could assist him or of a legal representative. He has not done so. In the circumstances, I find that the application should be dismissed as Mr. Kennedy has taken no steps to participate in or advance his claim.

June 1, 2017

Jessica Kowalski

Arbitrator

Date