Paul v. Wawanesa Mutual Insurance Company, 2017 ONFSCDRS 271

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

Neutral Citation: 2017 ONFSCDRS 271

FSCO A16-001896

BETWEEN:

ATOUR PAUL

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies

Heard: In person on September 26, 2017

Appearances: Mr. Atour Paul did not participate Ms. Anju Sharma, lawyer, participated for Wawanesa Mutual Insurance Company and Ms. Amigud, on behalf of Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Paul, was injured in a motor vehicle accident on November 28, 2013 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Paul, 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. Paul’s Application for Arbitration be dismissed?
Should expenses be awarded to Wawanesa?

Result:

Mr. Paul’s Application for Arbitration is dismissed.
Expenses in the amount of $3,243.61 are awarded to Wawanesa.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was scheduled for November 8, 2016 in person at the offices of ADR Chambers. The Pre-Hearing was attended by Mr. Vettese, counsel for Mr. Paul at that time, Ms. Amigud for Wawanesa, and Ms. Sharma, legal counsel, for Wawanesa. Mr. Paul did not participate.

On April 4, 2017, Mr. Paul’s legal counsel filed a Motion to be removed from the record as he had been unable to contact his client without success and consequently there has been a breakdown in the client-solicitor relationship.

An Order was issued on April 25, 2017 granting the request to be removed from the file by Mr. Paul’s legal counsel. The order, sent by regular and registered mail, advised Mr. Paul that he was now self-represented at his Hearing scheduled to commence on September 26, 2017, for three days. The Order also advised Mr. Paul that should he wish to retain alternative counsel to provide us with their contact information.

The Dismissal

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

A Hearing was scheduled to proceed on September 26, 2017 at 10:00 a.m. in person at the offices of ADR Chambers. Ms. Amigud participated on behalf of Wawanesa. Ms. Sharma, legal counsel, represented Wawanesa. As Mr. Paul had not attended the proceedings by 10:30 a.m. counsel for the Insurer requested that the Application for Arbitration be dismissed with costs.

In support of its request, the Insurer submitted copies of three letters dated May 25, 2017, July 7, 2017 and September 1, 2017 requesting contact from Mr. Paul without success.

I was satisfied that Mr. Paul 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 Dispute Resolution Practice Code (“DRPC”).

While I have no direct evidence about the situation surrounding the commencement of this arbitration, or about the factual foundation of Mr. Paul’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. Paul bears the onus of proving entitlement to the claimed benefits. Since he has not participated in any of the arbitration proceedings, his Application for Arbitration is dismissed.

EXPENSES:

Counsel for Wawanesa submitted a Bill of Costs relating to legal fees and disbursements in having to prepare for and attend the various arbitration proceedings in which Mr. Paul did not participate. The amount requested was $3,243.61 ($3,134.56 and $109.05 in disbursements both including HST), in accordance with the Legal Aid rate in Ontario. Having regard for the criteria for granting expenses under Rules 75 to 79 of the DRPC, the request is granted. The amount of $3,243.61 inclusive of HST is due and payable to the Insurer by Mr. Paul upon receipt of this order.

October 19, 2017

Janet Davies Arbitrator

Date