Neutral Citation: 2017 ONFSCDRS 312 FSCO A10-002652

BETWEEN:

JENNIFER ANGELICA BAGLIONE Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

PRE-HEARING DECISION

Before: Anne Sone Heard: Final submissions were received by telephone call on August 16, 2017 Appearances: Alon Rooz and Lisa Bishop for Ms. Baglione J. Claude Blouin and Jennifer H. McGlashan for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Jennifer Angelica Baglione, was injured in a motor vehicle accident on May 29, 2009. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Baglione 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 are:

Is Ms. Baglione entitled to receive a medical benefit for $3,474.16 for massage therapy and TENS treatment provided by Osler Rehabilitaiton Centre, claimed pursuant to section 14 of the Schedule?
Is Ms. Baglione entitled to attendant care benefits at the rate of $836.57 per week from May 29, 2009 to date and ongoing, pursuant to section 16 of the Schedule?
Is Ms. Baglione entitled to payments for housekeeping and home maintenance services at the rate of $100 per week from May 29, 2009 to date and ongoing, pursuant to section 22 of the Schedule?
Is Wawanesa liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act, because it unreasonably withheld or delayed payments to Ms. Baglione?
Is Wawanesa liable to pay Ms. Baglione's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Baglione liabler to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Baglione entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Baglione's claims are dismissed.
If the parties are unable to resolve the issue of expenses, a hearing in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) may be requested within 30 days.

EVIDENCE AND ANALYSIS:

At the pre-hearing in this case held on May 2, 2011, Ms. Baglione failed to attend, and I made the following order:

Ms. Baglione has failed to attend numerous assessments without a reasonable excuse. Unless and until Ms. Baglione attends a section 44 In-Home Assessment regarding caregiver, housekeeping and attendant care benefits, organized by Wawanesa, on reasonable notice, on or before May 29, 2011, no hearing date may be set.

A resumption of pre-hearing in this case was held on June 30, 2017, at 2:00 p.m., by teleconference call arranged by the Financial Services Commission of Ontario. Ms. Bishop, legal counsel, represented Ms. Baglione. Ms. McGlashan, legal counsel, represented Wawanesa Mutual Insurance Company (Wawanesa).

The Commission sent a notice of this resumption of pre-hearing to Ms. Baglione's last known address. This notice was not returned to the Commission. Under Rule 9.1(c) of the Dispute Resolution Practice Code (the "Code"), a party is obliged to advise the Commission in writing of any change of address, and the Commission is entitled to rely on the last known address contained in its records. Ms. Baglione has not notified the Commission of any change of address. I am satisfied that the Commission was entitled to rely on Ms. Baglione's last known address contained in its records, which was the address to which all correspondence was previously sent.

Her counsel also confirmed that the Applicant had notice of the resumption of pre-hearing. Despite this, she was not available when attempts were made to contact her during the resumption of pre-hearing.

Wawanesa indicated that since the original pre-hearing, production requests have been made to the Applicant's counsel with a view to arranging an In-Home assessment, but all requests have been ignored.

As a result, Wawanesa has asked that this case be dismissed.

Counsel for the Applicant asked for 15 days to obtain instructions from the Applicant.

On July 12, 2017, I sent a letter to the parties stating the following:

Under Rule 68.1 of the Dispute Resolution Practice Code, I have jurisdiction to dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

Under Rule 68.2, before dismissing a proceeding under this Rule, I must deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1. Under Rule 68.3, where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

(a) Provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and

(b) Serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

I then will consider any written objections or submissions received and may make an order on such terms as I consider just.

On August 16, 2017, Mr. Rooz, on behalf of the Applicant, contacted the Commission by telephone to advise that he had no response to my letter dated July 12, 2017. There was no other response to my letter dated July 12, 2017, which had constituted Notice under Rule 68.2 of the Code.

Based on the Applicant's failure to respond or engage in any meaningful way in this arbitration, under Rule 68.1 of the Code, I dismiss this proceeding without a hearing. Since the Applicant has not taken the required steps to pursue her claim, I conclude that the proceeding is frivolous, vexatious or was commenced in bad faith.

EXPENSES:

If the parties are unable to resolve the issue of expenses, a hearing in accordance with Rule 79 of the Code may be requested within 30 days.

November 22, 2017

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario