Neutral Citation: 2017 ONFSCDRS 156

FSCO A11-004437

BETWEEN:

LOUIS-JACQUES MICHAUD Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

MOTION TO DISMISS

Before: Edward Lee Heard: By telephone conference call on March 21, 2017 Appearances: Alon Rooz for Mr. Michaud Trish MacAvoy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Louis-Jacques Michaud, was injured in a motor vehicle accident on June 4, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose between the parties, and the parties were unable to resolve their disputes through mediation. Mr. Michaud 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 Mr. Michaud’s application be dismissed as a result of the Applicant’s failure to provide updated address and contact information?
Should Mr. Michaud’s counsel be ordered to advise in writing that Mr. Michaud has communicated with Mr. Michaud’s counsel and confirmed his current address within thirty days of this motion?
Should Mr. Michaud’s counsel be ordered to provide updated address and contact information for Mr. Michaud?

Result:

Mr. Michaud’s application should not be dismissed as a result of his failing to provide updated address and contact information.
Mr. Michaud’s counsel is not ordered to advise in writing that Mr. Michaud has communicated with them and confirmed his current address within thirty days of this motion.
Mr. Michaud’s counsel is not ordered to provide updated address and contact information for Mr. Michaud.

This proceeding has a long history. On January 31, 2014, State Farm brought a motion seeking a determination as to whether Mr. Michaud had failed to make himself available for an examination-under-oath. In a decision dated March 5, 2014,² Arbitrator Wilson determined that Mr. Michaud had indeed failed to make himself available for an examination-under-oath. The arbitrator then adjourned the hearing of Mr. Michaud’s application for accident benefits sine die. He also ordered Mr. Michaud’s counsel to provide up-to-date contact information for Mr. Michaud, and he reserved on the question as to whether he should dismiss the arbitration itself for failure to participate in examinations-under-oath “as required” by the Schedule.

In a second decision dated June 27, 2014³ (Motion to Dismiss), Arbitrator Wilson cited Mr. Michaud’s ongoing failures to attend an examination-under-oath, to provide updated contact information, and the breach of Mr. Michaud’s undertaking to attend at an examination-under-oath. He determined that this conduct by Mr. Michaud amounted to an abuse of process, and noted the “close interrelation between abuse of process and vexatious behaviour in the context of litigation.” Consequently, Arbitrator Wilson dismissed Mr. Michaud’s application for accident benefits without a hearing.

Mr. Michaud then sought an appeal of Arbitrator Wilson’s orders. In a decision dated May 3, 2016,⁴ Director’s Delegate Evans overturned Arbitrator’s Wilson’s decision of June 27, 2014 to dismiss Mr. Michaud’s arbitration, and Arbitrator Wilson’s decision to stay Mr. Michaud’s arbitration proceeding. The Director’s Delegate determined that Arbitrator Wilson had neither the power to stay Mr. Michaud’s arbitration proceeding nor to dismiss it because of a failure to attend an examination-under-oath.

CURRENT PROCEEDING:

The proceeding currently before me is another motion brought by State Farm to dismiss Mr. Michaud’s application as a result of his failure to provide updated address and contact information. Alternatively, State Farm seeks an order that Mr. Michaud’s counsel provide updated address and contact information for the applicant. And further in the alternative, State Farm seeks an order that Mr. Michaud’s counsel advise in writing that Mr. Michaud has communicated with them and confirmed his current address.

State Farm based their motion on the following grounds. First, they submitted that Mr. Michaud no longer lives in the country. Second, an order was made on March 5, 2014 by Arbitrator Wilson requiring Mr. Michaud’s counsel to provide updated and correct contact information, and there has been no compliance with that order. Third, the Notice of Appeal that was filed on July 24, 2014 in relation to the June 27, 2014 decision of Arbitrator Wilson was not signed by Mr. Michaud. Fourth, Rule 9.1 of the Dispute Resolution Practice Code requires Mr. Michaud to provide up-to-date contact information. And fifth, Mr. Michaud’s counsel refuses to confirm that he is currently in contact with Mr. Michaud.

EVIDENCE AND ANALYSIS:

Much of the current motion is a rehash of arguments already made and determined in the previous orders of Arbitrator Wilson and the overturning of those orders in the appeal decision of Director’s Delegate Evans.

I will deal with each of the arguments set out above in turn.

First, there was no evidence in the materials filed by State Farm to substantiate their claim that Mr. Michaud no longer lives in the country. Further, I know of no statutory provision (and State Farm directed me to none) that would lead to a dismissal of Mr. Michaud’s arbitration hearing without a hearing merely because he was living outside of the country.

Second, Director’s Delegate Evans has already overturned Arbitrator Wilson’s decisions dismissing Mr. Michaud’s arbitration proceeding for not providing updated contact information. I am bound by the ruling that a mere failure to provide contact information does not warrant the dismissal of an arbitration proceeding. Further, if I accept (as suggested by State Farm), that Arbitrator Wilson’s order that Applicant’s Counsel provide up-to-date contact information survived the appeal decision, then there is no need for me to re-visit that question.

Third, no evidence was provided to me in regard to whether Mr. Michaud had signed his notice of appeal, but clearly, that omission (if indeed it occurred) was no impediment to the hearing of Mr. Michaud’s appeal, the decision in favour of Mr. Michaud, and the overturning of Arbitrator Wilson’s previous orders. I see no reason why that alleged omission would now lead me to dismiss Mr. Michaud’s arbitration proceeding without a hearing.

Fourth, nothing in Rule 9.1 of the Dispute Resolution Practice Code suggests that an arbitration proceeding should be dismissed without a hearing if a party does not provide up-to-date contact information.

Fifth, even leaving aside issues of solicitor-client privilege, there is no evidence that would lead me to consider whether I should contemplate ordering Mr. Michaud’s counsel to confirm he is currently in contact with Mr. Michaud. State Farm’s brief states that Applicant’s Counsel has “instructions” from his client.

The motion is dismissed in its entirety.

EXPENSES:

I leave the question of the expenses of this motion to the arbitrator who hears this matter on the merits.

June 6, 2017

Edward Lee Arbitrator

Date

Financial Services Commission of Ontario