The Estate of Delia Arnold v. Cumis General Insurance Company, 2017 ONFSCDRS 336

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 336

FSCO A15-001092

BETWEEN:

THE ESTATE OF DELIA ARNOLD

Applicant

and

CUMIS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies

Heard: By written submissions completed on December 1, 2017

Appearances: Ms. Marni Miller, legal counsel for Cumis General Insurance Company

No one appeared for the Estate of Ms. Delia Arnold

Issues:

The Applicant, Ms. Delia Arnold, was injured in a motor vehicle accident on December 13, 2013 and sought accident benefits from Cumis General Insurance Company (“Cumis”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Arnold, through her legal counsel, 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 Delia Arnold’s Application for Arbitration be dismissed?

Result:

Delia Arnold’s Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

Chronology

An Application for Arbitration was filed on behalf of Ms. Arnold on February 19, 2015.

On September 19, 2017, Sokoloff Lawyers brought a motion to be removed from the record as Ms. Arnold’s legal counsel as she had passed away and they were unable to proceed without instructions from an Estate Trustee. A notice of the motion was sent to the parties on September 20, 2017, and in an abundance of caution, a notice was also sent to Ms. Arnold’s son, Donald J.W. Arnold, at his last known address. The motion was heard on October 23, 2017, by telephone conference call. Sokoloff Lawyers were subsequently removed as counsel of record. No one participated on behalf of the Estate of Ms. Arnold.

During the motion, counsel for the Insurer raised a motion of their own to dismiss the claim. The motion was to be heard in writing and the following schedule for written submissions was set out as follows:

Cumis will file and serve its material by November 8, 2017.
Ms. Arnold’s Estate must file and serve their response by November 24, 2017.
Cumis will reply, if necessary by December 1, 2017.

The Dismissal

For the reasons that follow, Ms. Arnold’s Application for Arbitration is dismissed on a without costs basis.

In its written submission, the Insurer states that as there has not been any response from any party for the Estate of Ms. Arnold, Cumis seeks to have the matter dismissed. It claims that since her passing in late 2016, neither an Estate Trustee nor an Administrator has been appointed, and it has been unable to receive a response from a family member to proceed with this claim.

As such, the Insurer requested that the Application for Arbitration be dismissed, on a without cost basis, as being frivolous, vexatious and an abuse of process pursuant to Rule 68(1) of the Dispute Resolution Practice Code (“DRPC”), as there is no Applicant to proceed with the dispute.

I was satisfied that notice of the proceeding had been sent to the last known address for Ms. Arnold, contained in the records of the Dispute Resolution Group pursuant to Rule 5.7(b) of the DRPC as well as her son, Mr. Donald J.W. Arnold, at his last known address.

While I have no direct evidence about the situation surrounding the commencement of this Arbitration, or about the factual foundation of Ms. Arnold’s claim, there are grounds to consider that the continuation of this arbitration, where one party clearly cannot participate, would be an abuse of process pursuant to Rule 75.2 (d) and (e) of the DRPC.

Since there has been no response from anyone on behalf of Ms. Arnold in these proceedings, the Application for Arbitration is dismissed on a without cost basis.

December 20, 2017

Janet Davies

Arbitrator

Date