Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 273

FSCO A16-001359

BETWEEN:

SUHAIL ALSENDI

Applicant

and

AVIVA CANADA INC.

Insurer

Before:

Arbitrator Paulina Gueller

Heard:

In person at ADR Chambers on September 28, 2017

Appearances:

Mr. Suhail Alsendi did not participate

Ms. Emma Duggan, legal counsel for the Insurer

Ms. Karen Brandt, on behalf of Aviva Canada Inc.

Issues:

The Applicant, Mr. Suhail Alsendi, was injured in a motor vehicle accident on June 9, 2014 and sought accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Alsendi, through his representative, 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. Alsendi's Application for Arbitration be dismissed?
Is Aviva entitled to its expenses of this proceeding?

Result:

Mr. Alsendi's Application for Arbitration is dismissed.
Aviva is entitled to its expenses of these proceedings in the amount of $1,000.00, inclusive of all fees, disbursements and HST.

Background

Mr. Alsendi submitted an Application for Arbitration on February 19, 2016.

Two Pre-Hearings were held. The Applicant did not attend the first on November 29, 2016. At that Pre-Hearing, the Arbitrator granted his counsel's request to be removed from the record.

The second Pre-Hearing was held on January 23, 2017, by telephone conference. The Applicant participated and the Hearing dates were scheduled.

Dismissal

The Applicant did not appear at the Hearing on September 28, 2017. I ordered a break of 30 minutes to allow the Applicant to attend. After the break, the Hearing resumed in his absence.

The Insurer raised a Motion to dismiss the Application for Arbitration. Aviva submitted that the Applicant was fully aware of the date of the Hearing, and did not attend.

Rule 37.9 of the Dispute Resolution Practice Code ("DRPC") states:

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.

I am satisfied that the notices sent to Mr. Alsendi complied with the requirements of Rule 9.1(c) of the DRPC and Section 6 of the Statutory Powers Procedure Act. Notwithstanding, Mr. Alsendi did not attend the Hearing.

Pursuant to Rule 37.9 of the DRPC, the Arbitration Hearing proceeded in Mr. Alsendi's absence.

The Applicant 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 the Applicant's claims, this Application for Arbitration is dismissed.

EXPENSES:

Aviva submitted that the Applicant has demonstrated vexatious behaviour in this proceeding and Aviva spent significant time in preparation for the Pre-Hearings and the Hearing. Aviva requested the amount of $4,000.00 in costs, but did not provide a Bill of Costs.

The relevant criteria for the Arbitrator when awarding expenses to a party, if satisfied that the award of expenses is justified, is set out in Rules 75.1 and 75.2 of the DRPC as follows:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

In awarding expenses, I am taking into consideration the relevant criteria, which include each party's success in the proceedings and the conduct of a party that prolonged the proceeding unnecessarily. Mr. Alsendi did not attend the first Pre-Hearing and participated in the second by teleconference. However, he failed to prove his claim and attend the Hearing.

In awarding expenses, I have taken into consideration the time Aviva's counsel spent preparing for the different stages in this proceeding. I accept Aviva was the successful party at the Hearing. Therefore, I find it is reasonable to grant some legal expenses.

Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Insurance Act and order the Applicant to pay Aviva's expenses in the amount of $1,000.00 inclusive all fees, disbursements, and HST. This amount is payable forthwith.

October 25, 2017

Paulina Gueller

Arbitrator

Date