Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 292
FSCO A16-003190
BETWEEN:
PAMELA ALEXANDER
Applicant
and
AVIVA CANADA INC.
Insurer
REASONS FOR DECISION
Before: Lynda Tanaka, Arbitrator
Heard: In person at ADR Chambers on October 16, 2017
Appearances: Ms. Pamela Alexander did not participate
Mr. Jeffrey Pasternak, counsel for Aviva Canada Inc.
Issues:
The Applicant, Pamela Alexander (“Applicant”), was injured in a motor vehicle accident on January 11, 2013 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 the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended (“Act”).
The issues in this Hearing are:
Should the Applicant’s Application for Arbitration be dismissed?
Is the Applicant liable to pay the expenses of Aviva in respect of the Arbitration?
Result:
The Applicant’s Application for Arbitration is dismissed.
The Applicant is liable to pay the expenses of Aviva in respect of the Arbitration in the amount of $1,500.00.
EVIDENCE AND ANALYSIS:
Chronology
This matter came for hearing before me on October 16, 2017.
This matter first came on for Hearing on September 13, 2017 before Arbitrator Parish. ADR Chambers had received an email from the Applicant on September 12, the day before the Hearing, submitting that she would not be available to attend the Hearing. She indicated that she did not want her counsel to represent her anymore and informed ADR Chambers that she was meeting with another lawyer on September 13, the day the Hearing was to commence. She indicated she had not been told by her counsel of the hearing date until September 8, 2017. She provided a telephone number where she could be reached but Arbitrator Parish could not reach her on the morning of the Hearing.
Arbitrator Parish ordered that the Applicant’s counsel be removed as Solicitor of Record and adjourned the Hearing to commence October 16, 2017. Arbitrator Parish sent a letter to the Applicant dated September 13, 2017 (Exhibit 2) specifying both the removal of her representative and the adjournment of the Hearing. In the letter, Exhibit 2, Arbitrator Parish specified that no further adjournment of the Hearing would be considered if the Applicant had not retained new legal representation by October 16. Notice was given of the time and place of the Hearing and that if the Applicant did not attend, Aviva might request that her claim be dismissed and that a cost award be issued against her. She was further given notice that Aviva had requested an order of costs for the day’s attendance on September 13.
The Dismissal
For the reasons that follow, the Applicant’s Application for Arbitration is dismissed.
At the commencement of the Hearing on October 16, neither the Applicant nor anyone representing her appeared. Aviva was represented and ready to proceed to Hearing. Aviva advised that a counsel had contacted him very recently indicating that she had not yet been retained but expected to be at some point on October 16. That counsel wished an adjournment of the Hearing but Aviva advised that no details of the length of the adjournment were provided. Aviva advised that it had informed that counsel that, until it was clear that there was a retainer, it would not discuss the file with that counsel. Aviva further advised that the Applicant had not participated in the Pre-Hearing and had not shown up for examinations under oath on two occasions. I stood the matter down for thirty minutes to allow the Applicant further time to appear in person or through a representative. At 10:35 a.m. no one had appeared for her and she did not come to the Hearing.
I am satisfied that the Applicant was given notice of all of the proceedings related to her Arbitration at her last known address. The letter of Arbitrator Parish, Exhibit 2, indicates that it was sent both registered and ordinary mail, and neither letter has been returned as undeliverable. Clear notification was given to the Applicant by Arbitrator Parish that her failure to appear at the Hearing at its commencement on October 16, 2017 could result in dismissal of her Application for Arbitration.
Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in her absence.
The Applicant bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.
EXPENSES:
Aviva requested an award of expenses and presented a Costs Outline which was marked Exhibit 1. The Costs Outline sets out a claim of $7,552.39 including legal fees calculated at the Legal Aid rate. It included disbursements only for the court reporter but such disbursements are not properly recoverable. On considering the history of the file as set out in the letter of Arbitrator Parish, Exhibit 2, and on reviewing the Application for Arbitration and the Response filed by Aviva, I find that this was not a complex claim. Aviva has, however, been put to the expense of preparing for a two day Hearing on two occasions. I therefore find that a reasonable expenses award in this matter is $1,500.00. The Applicant is liable to pay to Aviva its expenses in the amount of $1,500.00.
November 8, 2017
Lynda Tanaka
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 292
FSCO A13-003190
BETWEEN:
PAMELA ALEXANDER
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended (“Act”), it is ordered that:
The Applicant’s Application for Arbitration is dismissed.
The Applicant is liable to pay the expenses of Aviva in respect of the Arbitration in the amount of $1,500.00.
November 8, 2017
Lynda Tanaka
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.