Neutral Citation: 2017 ONFSCDRS 280

FSCO A16-003999

BETWEEN:

ALLISON ROBINSON

Applicant

and

BELAIRDIRECT INSURANCE

Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies

Heard: In person at offices of ADR Chambers on October 11, 2017

Appearances: Ms. Allison Robinson did not attend Ms. Antonietta Alfano, legal counsel represented Belairdirect Insurance as did Ms. Nkechi Agu, claims adjuster for Belairdirect Insurance.

Issues:

The Applicant, Ms. Robinson, was injured in a motor vehicle accident on March 3, 2015 and sought accident benefits from Belairdirect Insurance (“Belairdirect”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Robinson, through her 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 Ms. Robinson’s Application for Arbitration be dismissed?
Should expenses be awarded to Belairdirect?

Result:

Ms. Robinson’s Application for Arbitration is dismissed.
Expenses in the amount of $2,121.84 is awarded to Belairdirect.

EVIDENCE AND ANALYSIS:

Chronology

An Application for Arbitration was filed on behalf of the Applicant on March 31, 2016. A Pre-Hearing discussion in this case was scheduled for March 2, 2017. Ms. Robinson did not attend and we were unable to reach her by telephone. The Pre-Hearing was subsequently re-scheduled to March 24, 2017 and Ms. Robinson attended with her legal representative, from Bergel, Magence, LLP. As they were unable to reach an agreement to resolve the issues in dispute at that time, hearing dates were scheduled for October 11, 12 & 13, 2017.

Throughout the arbitration process the Insurer requested that Ms. Robinson provide relevant productions to support her claim for the benefits claimed, without success.

On August 10, 2017, I received a motion from the law firm, Bergel, Magence to be removed from the record due to a break-down in the client-solicitor relationship. The motion was heard on August 28, 2017 at 10:00 a.m. by telephone and the request to be removed from the record was granted. As Ms. Robinson did not participate, she was advised of this outcome by registered and regular mail sent on August 28, 2017. She was advised in the same letter, that the Insurer filed a motion to have her Application for Arbitration dismissed as she failed to support her claim for benefits. The letter also advised Ms. Robinson of her hearing date of October 11, 2017 and that if she failed to participate in any further Arbitration proceedings, I would assume she had chosen not to move forward with her Application for Arbitration and would consider the Insurer’s request to have the application dismissed with cost consequences.

The Dismissal

For the reasons that follow, Ms. Robinson’s Application for Arbitration is dismissed.

A motion to dismiss Ms. Robinson’s Application for Arbitration was heard on October 11, 2017 at the offices of ADR Chambers scheduled for 10:00 a.m. As Ms. Robinson had not attended by 10:30 a.m., the motion proceeded in her absence.

The Insurer produced copies of registered letters sent to Ms. Robinson which had been returned. I note that the registered letter sent by ADR Chambers to Ms. Robinson at her Toronto address had not been returned, and I can only assume it was received by the Applicant.

The Insurer also advised that the brief it sent to the Applicant had not been returned, so again, I can only assume it was received by the Applicant.

As Ms. Robinson has not participated in most of the Arbitration proceedings and did not attend the hearing on October 11, 2017, the Insurer requested that the Application for Arbitration be dismissed as being frivolous, vexatious, or an abuse of process pursuant to Rule 68(1) of the Dispute Resolution Practice Code (“DRPC”).

I was satisfied that Ms. Robinson was given notice of all the proceedings related to her Application for Arbitration at her 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 Ms. Robinson’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.

Ms. Robinson bears the onus of proving entitlement to the claimed benefits. Since, apparently she has not produced the documents to support her claim for benefits and has not participated in almost all the Arbitration proceedings, this Application for Arbitration is dismissed.

EXPENSES:

Counsel for Belairdirect requested $2,121.84 in expenses in having to continually defend the Application for Arbitration in the absence of the Applicant. 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.

Belairdirect submitted a Bill of Costs which I consider to be reasonable for the amount of time spent having to defend the Application for Arbitration in the absence of the Applicant. Therefore, I am awarding the Insurer its costs claimed in the amount of $2,121.84 and these costs are payable by Ms. Robinson on upon receipt of this Order.

October 27, 2017

Janet Davies Arbitrator

Date

Financial Services Commission of Ontario