Venkadeswaran Mageswaran v. Aviva Canada Inc., 2017 ONFSCDRS 53

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 53

FSCO A15-007865

BETWEEN:

VENKADESWARAN MAGESWARAN

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Thérèse Reilly

Heard: By telephone conference on December 14, 2016

Appearances: Mr. Venkadeswaran Mageswaran did not participate

Ms. Amanda Faulkner participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Venkadeswaran Mageswaran, was injured in a motor vehicle accident on January 3, 2014 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 his representative, 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 Mr. Venkadeswaran Mageswaran’s Application for Arbitration be dismissed?
Is the Applicant or the Insurer entitled to its expenses of the Arbitration?

Result:

Mr. Venkadeswaran Mageswaran’s Application for Arbitration is dismissed.
The Insurer is entitled to expenses in the amount of $750.00, inclusive of all costs, disbursements and interest.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on February 22, 2016. The Applicant participated as did his representative. A Hearing date for the Arbitration was set for December 14, 15 and 16, 2016 to address all issues in the Arbitration.

Subsequent to the Pre-Hearing, however, the Applicant has failed to attend any further proceedings in this matter which includes a Motion brought by his representative to be removed from the record which was heard on November 7, 2016 at 11:00 a.m. by telephone conference call arranged by ADR Chambers. The representative advised at that time that despite her repeated efforts to contact the Applicant, she was unable to do so. The representative was removed from the record due to a breakdown in the solicitor-client relationship by Order, dated November 9, 2016. As a result, the Applicant became self-represented.

On November 9, 2016, a letter was sent to the Applicant to his last known address by registered and regular mail. The letter confirmed the date of the Arbitration Hearing, which was scheduled to proceed on December 14, 2016, but would proceed at 10:00 a.m. by telephone conference call arranged by ADR Chambers. The letter stated that it served as Notice of the Hearing.

The letter further advised the Applicant that he or his legal representative must contact ADR Chambers prior to the Hearing and should he or his representative not contact our office or participate in any further proceedings, the Arbitrator would dismiss his Application for Arbitration and consider the Insurer’s request for expenses. The Applicant or his new representative was to contact ADR Chambers by no later than 5:00 p.m. on December 13, 2016.

The Dismissal

On December 14, 2016 at 10:00 a.m., the Hearing proceeded by telephone conference arranged by ADR Chambers. On December 14, 2016, I was unable to contact the Applicant. The Applicant did not contact ADR and no representative on his behalf contacted ADR Chambers as requested.

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

I am satisfied that the Applicant was given notice of all of the proceedings related to his Application for Arbitration at his last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“the DRPC”), the Arbitration Hearing proceeded in his absence.

The Applicant bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Arbitration is dismissed. I also find under Rule 68 of the DRPC that the Applicant, by his failure to attend the proceedings in this Arbitration subsequent to the Pre-Hearing, has abandoned his Application for Arbitration. For this additional reason, the Applicant’s Application for Arbitration is dismissed.

EXPENSES:

The Insurer is the successful party and is entitled to its expenses. The Insurer requested costs in the amount of $750.00, which I find is reasonable. The Insurer is entitled to costs in the amount of $750.00, inclusive of all fees, disbursements and interest.

February 13, 2017

Thérèse Reilly

Arbitrator

Date