Neutral Citation: 2017 ONFSCDRS 254 FSCO A16-003725

BETWEEN:

STEVEN SINKA Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies Heard: By telephone on August 31, 2017

Appearances: Mr. Steven Sinka did not participate Mr. Christian Farahat, legal counsel, represented Certas Direct Insurance Company

Issues:

The Applicant, Mr. Sinka, was injured in a motor vehicle accident on July 15, 2014 and sought 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. Sinka, 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. Sinka’s Application for Arbitration be dismissed?
Should expenses be awarded to Certas?

Result:

Mr. Sinka’s Application for Arbitration is dismissed.
Expenses in the amount of $500.00 are awarded to Certas.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was scheduled for January 26, 2017. The Pre-Hearing was attended by Ms. Nicol, legal counsel, on behalf of Mr. Sinka. Ms. Matani participated on behalf of Certas and Ms. Daley, legal counsel, represented Certas. Mr. Sinka did not appear and his counsel was unable to reach him by telephone.

On February 13, 2017, we received a request from the Applicant’s counsel to be removed from the record as she had not been able to reach her client by mail, telephone, e-mail or through family members. As a result she had been unable to receive instructions from Mr. Sinka. An order removing Ms. Nicol from the record was issued on March 1, 2017. The order, sent by regular and registered mail, advised Mr. Sinka that he was now self-represented and to call our office with his contact information or that of his alternate counsel. The order sent by registered mail was returned to us as moved/unknown.

On August 2, 2017, I received a request from the Insurer to dismiss Mr. Sinka’s Application for Arbitration as the Insurer too had been unable to reach him over a number of months by mail, e-mail, telephone and by way of a process server. As such, the Insurer believes the claim is frivolous, vexatious, or an abuse of process pursuant to Rule 68(1) of the Dispute Resolution Practice Code (“DRPC”) and should be dismissed.

On August 10, 2017, I sent a letter to Mr. Sinka, by both regular and registered mail, advising of the Insurer’s request to dismiss his Application for Arbitration with cost consequences to him for having to prepare for and attend arbitration proceedings.

In the same letter, I advised Mr. Sinka that should he wish to proceed with his Application for Arbitration, I would convert the Motion/Hearing to a Pre-Hearing discussion, but if he did not attend the matter would proceed in his absence. Mr. Sinka did not respond and the matter proceeded in his absence.

The Dismissal

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

A motion to dismiss Mr. Sinka’s Application for Arbitration was heard on August 31, 2017, by telephone conference call at 9:00 a.m. arranged by ADR Chambers. Mr. Sinka did not attend and I was unable to reach him at his last known telephone number. Mr. Farahat, legal counsel for Certas, participated and requested that the Application for Arbitration be dismissed as being frivolous, vexation and an abuse of process as it appears Mr. Sinka has abandoned his claim.

I was satisfied that Mr. Sinka was given notice of all the proceedings related to his Application for Arbitration at his last known address, contained in the records of the Dispute Resolution Group pursuant to Rule 5.7(b) of the DRPC.

While I have no direct evidence about the situation surrounding the commencement of this arbitration, or about the factual foundation of Mr. Sinka’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 (d) and (e) of the DRPC.

Mr. Sinka bears the onus of proving entitlement to the claimed benefits. Since he has not participated in any of the arbitration proceedings, this Application for Arbitration is dismissed.

EXPENSES:

Counsel for Certas requested $1500.00 in expenses. In considering the award for expenses, I am mindful of the expense criteria set out in the Expense Regulation and Rules 75 to 78 of the DRPC.

Although Certas has not provided a Bill of Costs, I am of the opinion that Certas is entitled to some compensation for having to prepare for and attend the various arbitration proceedings. Therefore I am awarding the Insurer $500.00 in “throw away” expenses. The total owing by the Applicant to the Insurer is $500.00 and is payable upon receipt of this Order.

September 26, 2017

Janet Davies Arbitrator

Date

Financial Services Commission of Ontario