Ayodele Olomojobi v. Western Assurance Company, 2017 ONFSCDRS 226

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

Neutral Citation: 2017 ONFSCDRS 226

FSCO A15-008697

BETWEEN:

AYODELE OLOMOJOBI

Applicant

and

WESTERN ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies

Heard: In person at ADR Chambers on August 8, 2017

Appearances: Mr. Ayodele Olomojobi did not participate Mr. Jonathan Tatner participated for Western Assurance Company

Issues:

The Applicant, Mr. Ayodele Olomojobi, was injured in a motor vehicle accident on August 1, 2014 and sought accident benefits from Western Assurance Company (“Western”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Olomojobi, through his representative at that time, 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. Ayodele Olomojobi’s Application for Arbitration be dismissed?
Should expenses be awarded to Western?

Result:

Mr. Ayodele Olomojobi’s Application for Arbitration is dismissed.
Expenses in the amount of $500.00 are awarded to Western.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on June 13, 2016, at which time Mr. Olomojobi did not participate but was represented by Mr. Abraham, licensed paralegal, from Benjamin Law. On February 1, 2017, Mr. Olomojobi’s legal representative filed a Motion to be removed from the record as the law firm had been unable to reach their client over an extended period of time. On May 2, 2017, an Order was made removing the firm of Benjamin Law as Mr. Olomojobi’s legal representative for this Application for Arbitration. The letter accompanying the Order advised Mr. Olomojobi of the Hearing date and that as he was now self-represented, he may want to consider representation.

The Dismissal

For the reasons that follow, Mr. Olomojobi’s Application for Arbitration is dismissed.

A Hearing was scheduled to commence on August 8, 2017 at 10:00 a.m., at the offices of ADR Chambers. As Mr. Olomojobi had not attended the proceeding by 10:30 a.m., the Insurer’s counsel requested that the Application for Arbitration be dismissed. Counsel for the Insurer advised Mr. Olomojobi of their Motion to dismiss his Application for Arbitration if he did not attend the Arbitration Hearing by way of letter on June 7, 2017, at his last known address.

As I was satisfied that Mr. Olomojobi was given notice of the proceeding relating to his Application for Arbitration at his last known address, pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“DRPC”), the Arbitration Hearing proceeded in his absence.

While I have no direct evidence about the situation surrounding the commencement of this Arbitration, or about the factual foundation of Mr. Olomojobi’s claim, there are grounds to consider that the continuation of this Arbitration, where one party clearly has no interest in participating, would be an abuse of process pursuant to Rule 75.2(c) and (e) of the DRPC.

Mr. Olomojobi bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, his Application for Arbitration is dismissed.

EXPENSES:

Counsel for Western requested $5,752.80 at substantial indemnity rates for expenses. In considering the award for expenses, I am mindful of the expense criteria set out under Rule 75 of the DRPC; that the Applicant has not participated in any of the Arbitration proceedings; and there appears to be a lack of productions. Further, I find the Insurer was aware for many months prior to the Hearing that the Applicant may not appear and they would not have had to prepare for a contested Hearing.

As such, the costs claimed appear to be excessive and not in accordance with the Expense Regulation and Rule 78 of the DRPC with respect to the hourly rates established under the Legal Aid Services Act, 1998 in any event.

Therefore, the award for expenses is set at $500.00 in “throw away” expenses in having to prepare for and attend the various Arbitration proceedings in which the Applicant did not appear. This amount is payable by Mr. Olomojobi upon receipt of this Order.

August 21, 2017

Janet Davies Arbitrator

Date