Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 55

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BETWEEN:

GURVINDER BATH

Applicant

and

INTACT INSURANCE COMPANY

Insurer

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on December 13, 2016

Appearances: Mr. Gurvinder Bath did not participate Mr. Brian Murnaghan did not participate for Mr. Gurvinder Bath Mr. Vlad Stefanescu participated for Intact Insurance Company

Issues:

The Applicant, Mr. Gurvinder Bath, was injured in a motor vehicle accident on April 22, 2013 and sought accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Bath, 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. Bath’s Application for Arbitration be dismissed?
Should Intact be entitled to its expenses for this Arbitration?

Result:

Mr. Bath’s Application for Arbitration is dismissed.
Mr. Bath shall pay forthwith Intact’s expenses for this Arbitration in the amount of $750.00 (inclusive of fees, disbursements and HST) as set out in the Order.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on September 28, 2016, at which Mr. Bath failed to appear.

On September 28, 2016, I sent a letter by registered and regular mail to Mr. Bath at his last known address to advise him of the missed Pre-Hearing discussion. The letter provided Mr. Bath with an Attendance Notice, setting a date of December 13, 2016 at Noon, to hear the issues identified in the Application for Arbitration. The letter also advised Mr. Bath that if he fails to attend, the Hearing may proceed in his absence, his Application for Arbitration may be dismissed and the Insurer’s expenses for this Arbitration proceeding may be awarded against him.

On December 13, 2016 at Noon, I telephoned Mr. Murnaghan’s office and spoke with him to inquire why both he and Mr. Bath were not present for the Hearing. Mr. Murnaghan stated Mr. Bath was out of the country. Mr. Murnaghan also stated he was not available for the Hearing which had been scheduled.

The Dismissal

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

As of December 13, 2016, Mr. Bath had not contacted ADR Chambers and had not participated in any of the Arbitration proceedings. The Applicant’s legal counsel, Mr. Murnaghan, did not contact ADR Chambers prior to December 13, 2016 to advise that he and Mr. Bath would not be attending the Hearing on December 13, 2016.

I am satisfied that Mr. Bath 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 Arbitration Hearing proceeded in his absence.

Mr. Bath 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 Application for Arbitration is dismissed.

EXPENSES:

Mr. Bath shall pay forthwith to Intact $750.00 (inclusive of fees, disbursements and HST) for expenses concerning this Application for Arbitration. This amount must be paid in full to Intact prior to any other claims being commenced against Intact with respect to the motor vehicle accident of April 22, 2013.

February 13, 2017

Kimberly Parish Arbitrator

Date