Christina Teves v. Aviva Insurance Company of Canada, 2017 ONFSCDRS 311

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 311

FSCO A16-003693

BETWEEN:

CHRISTINA TEVES

Applicant

and

AVIVA INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies

Heard: In person at ADR Chambers on November 2, 2017

Appearances: Ms. Christina Teves did not attend

Ms. Susannah Margison and Mr. Michael McChesney, legal counsel,

represented Aviva Insurance Company of Canada, as did Ms. Walters,

Litigation Specialist Adjuster

Issues:

The Applicant, Ms. Christina Teves, was injured in a motor vehicle accident on January 14, 2015 and sought accident benefits from Aviva Insurance Company of Canada (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Teves, 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 Motion are:

Should Ms. Christina Teves’ Application for Arbitration be dismissed?
Should expenses be awarded to Aviva?

Result:

Ms. Christina Teves’ Application for Arbitration is dismissed.
Expenses in the amount of $2,500.00 inclusive of HST are awarded to Aviva.

EVIDENCE AND ANALYSIS:

Chronology

An Application for Arbitration was filed on behalf of the Applicant on March 30, 2016. A Pre-Hearing discussion in this case was held on February 7, 2017. Ms. Teves did not participate but was represented by Mr. Pronay, legal counsel. Ms. Walters participated on behalf of Aviva. Ms. Margison, legal counsel, represented Aviva.

By way of a Notice of Intention to Act In Person dated February 24, 2017, Ms. Teves notified the Tribunal that she would be representing herself going forward. On June 1, 2017, Mr. Pronay was removed from the record.

After several requests for productions from the Applicant, on August 22, 2017, counsel for the Insurer requested a Motion for a dismissal of the Application for Arbitration on a with costs basis.

The Motion was scheduled for November 2, 2017 at 10:00 a.m. in person at the offices of ADR Chambers and the Applicant was notified of same by registered and regular mail.

The Dismissal

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

A Motion to dismiss Ms. Teves’ Application for Arbitration was to be heard on November 2, 2017 at 10:00 a.m. at the offices of ADR Chambers. As Ms. Teves had not attended by 10:30 a.m., the Motion proceeded in her absence.

The Insurer produced a copy of its Motion, Statement of Service on the Applicant, a copy of the delivery notice and e-mails sent to the Applicant in recent days.

It does not appear that Ms. Teves has participated in any of the arbitration proceedings and as a result, 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. Teves 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. Teves’ 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. Teves bears the onus of proving entitlement to the claimed benefits. Since she has not participated in the arbitration proceedings, this Application for Arbitration is dismissed.

EXPENSES:

Counsel for Aviva submitted a Bill of Costs in the amount of $3,588.44 in expenses for 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.

I find the expenses claimed to be reasonable and in accordance with the Expense Regulation and Rules 75 to 78 of the DRPC. But as the Insurer advised the Applicant on November 1, 2017, by e-mail, that the claim for expenses would be $2,500.00, I have awarded the Insurer that amount.

Ms. Teves is ordered to pay Aviva $2,500.00 inclusive HST in expenses for having to continually defend the Application for Arbitration in her absence. This amount is due and payable upon receipt of this order.

November 22, 2017

Janet Davies

Arbitrator

Date