Musa Koko v. Coachman Insurance Company, 2017 ONFSCDRS 257

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 257

FSCO A16-000615

BETWEEN:

MUSA KOKO

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

MOTION ISSUE DECISION

Before: Arbitrator C. Matheson

Heard: In person on September 6, 2017, in Kitchener

Appearances: No one appeared for Mr. Musa Koko

Ms. Nicole D. Tellier, lawyer, appeared for Coachman Insurance Company.

Issues:

The Applicant, Mr. Musa Koko, was injured in a motor vehicle accident on May 22, 2014. He applied for and received statutory accident benefits from Coachman Insurance Company (“Coachman”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Koko applied for arbitration, via his counsel, at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Motion are:

Should the Application for Arbitration be dismissed?
Is the Applicant liable to pay Coachman’s reasonable legal costs of the Motion?

Result:

The Application for Arbitration is dismissed.
The Applicant shall pay the Insurer its legal costs of $1,862.96 inclusive of disbursements and all applicable taxes.

EVIDENCE AND ANALYSIS:

Background

The Applicant had hired the law firm Bartolini, Berlingieri, Barrafato, Fortino to represent him in this matter.

On August 24, 2016 Arbitrator Sherman held a teleconference where the Applicant did not participate. In his Pre-Hearing Letter dated August 24, 2016, Arbitrator Sherman set the date for the Hearing to commence on September 6, 2017 for three consecutive days.

On May 3, 2017, a Pre-Hearing resumption was heard by Arbitrator Drory. Arbitrator Drory wrote a letter also dated May 3, 2017 and sent it to the Applicant’s previously known address. In this letter the Arbitrator ordered that the Applicant’s law firm was no longer representing the Applicant, and that the Applicant was now self-represented. He reminded the Applicant that the Hearing was moving forward on September 6, 2017. He also told the Applicant that the Hearing would proceed even in his absence.

Decision

After waiting more than 30 minutes for the arrival of the Applicant, I brought the Hearing to order. The Applicant’s Arabic interpreter was present and counsel for the Insurer was also present.

The Insurer argued that the Applicant has abandoned his claim by virtue of not appearing at this arbitration. The Insurer suggested that the loss of communication with the Applicant was the reason for the Applicant’s loss of legal representation. The Insurer also evidenced that the Insurer has also not been able to contact the Applicant at his last known address by showing a photocopy of the returned registered letter addressed to the Applicant at his last known address. The Insurer was trying to assemble some medical records for this Hearing. On these grounds the Insurer requested an Order dismissing the Applicant’s Application for Arbitration and an Order for reasonable costs. A Bill of Costs was presented to the Commission.

The Dispute Resolution Practice Code speaks to the Hearing process when a party does not appear for the scheduled arbitration, as well as to the dismissal of an arbitration without a hearing. These Rules read in part as follows:

“Hearing”

37.9 Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

“Dismissal of proceeding without hearing” 68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. 68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1. 68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and (b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.

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 12 months he has given me proper grounds to dismiss this Application under Rule 68.1. This is demonstrated by the Applicant as he has not been able to produce any positive objective criterion for his case, and in fact it appears he has now abandoned his claim entirely.

Therefore, for the reasons given above, I now find and order that this Application be dismissed, forthwith.

EXPENSES:

Under section 68.4 of the Dispute Resolution Practice Code, above, I am able to address and attach any conditions to the dismissal of this Application for Arbitration.

The Insurer requested that a reasonable amount of expenses be assessed for its motion at this Hearing, in the amount of $1,648.64 plus $214.32 for the applicable taxes. I note that this amount has been adjusted to the Legal Aid tariff. The amount actually billed to the Insurer is $3,675.00 plus taxes. The Insurer did not request any disbursements be paid in its Bill of Costs.

In my view, the requested amounts are reasonable in light of the fact that two senior lawyers and three law clerks worked in part on this file.

For the above reasons, I now find and order that the Applicant shall pay the Insurer its legal costs of $1,862.96 inclusive of disbursements and all applicable taxes.

September 28, 2017

C. Matheson

Arbitrator

Date