Carlo Scarcello v. Certas Direct Insurance Company, 2017 ONFSCDRS 80

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 80

FSCO A15-005133

BETWEEN:

CARLO SCARCELLO

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: October 31, 2016, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. Scarcello did not appear

Harley Kruger for Certas Direct Insurance Company

Issues:

The Applicant, Carlo Scarcello, was injured in a motor vehicle accident on December 29, 2010. He applied for statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Scarcello 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:

Is Mr. Scarcello entitled to payment for the cost of examinations at Alliance Diagnostics and Treatments Inc. as follows:

$1,341.60 for an in-home assessment
$1,980 for a neurological assessment?

Is Certas liable to pay Mr. Scarcello’s expenses in respect of the arbitration?
Is Mr. Scarcello liable to pay Certas’ expenses in respect of the arbitration?
Is Mr. Scarcello entitled to interest for the overdue payment of benefits?

Result:

Mr. Scarcello’s Application for Arbitration is dismissed.
Mr. Scarcello shall pay Certas’ expenses of the arbitration, fixed at $500, inclusive of all fees, disbursements and any applicable taxes.

BACKGROUND:

Mr. Carlo Scarcello attended at the pre-hearing of his case on November 16, 2015.

On September 13, 2016, at 10:00 a.m., Mr. Scarcello’s then representatives, D’Angela Fox Vanounou LLP brought a motion seeking to withdraw from this proceeding. Despite having been notified of the motion, Mr. Scarcello did not appear. Based on the breakdown in the relationship between Mr. Scarcello and D’Angela Fox Vanounou LLP, Arbitrator Mutch permitted them to withdraw as Mr. Scarcello’s representatives, based on Rule 9 of the Dispute Resolution Practice Code (Fourth Edition, January 2014) (the Code).

On September 13, 2016, Arbitrator Mutch wrote a letter to the parties stating, in part, as follows:

After hearing submissions from Mr. Kruger, I have decided to convert the scheduled hearing to a resumed pre-hearing, commencing October 31, 2016 at 10 a.m. at the offices of the Financial Services Commission of Ontario. At that time, Mr. Scarcello may advise the presiding arbitrator of his intentions with regards to the arbitration of his claims and whether he has intends to retain new counsel.

If Mr. Scarcello does not attend the resumed pre-hearing, the presiding arbitrator may dismiss his claims, pursuant to Rule 68 of the Code. Rule 68 provides for the dismissal of a proceeding without a hearing. If Mr. Scarcello objects to the dismissal of his claims, he may do so by providing written submissions to that effect, serve them on Certas’ counsel and file them within 20 days of the date of this letter, or in the alternative, he may appear in person on October 31st to make his objections.

Mr. Scarcello should consider this notion [sic] of the intention to dismiss these proceedings.

The presiding arbitrator may also consider submissions regarding any expense claims by Certas on October 31, 2016.

This letter was not returned to the Commission as undeliverable.

Dismissal of Proceeding without a Hearing:

On October 31, 2016, at 10:00 a.m., Mr. Kruger and Ms. Robyn Pounder, adjuster, attended at the Commission on behalf of Certas.

By 10:30 a.m., Mr. Scarcello had still not appeared at the offices of the Commission.

Pursuant to Rule 68 of the Code, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith, provided that all parties have received written notice of the intention to dismiss the proceeding.

I find that Mr. Scarcello received written notice of the intention to dismiss this proceeding, and did not provide written submissions objecting to the dismissal of his claims. In addition, I find that he did not appear in person on October 31, 2016 to make his objections orally, as offered by Arbitrator Mutch. As a result, I find that I have the authority to dismiss Mr. Scarcello’s claims on the basis that the proceeding is frivolous, vexatious or is commenced in bad faith. As Mr. Scarcello has not taken the required steps to maintain his claims in this case, I now dismiss them.

EXPENSES:

On hearing submissions of counsel for Intact, I find that Intact is entitled to its expenses of the arbitration fixed at $500, inclusive of all fees, disbursements and any applicable taxes.

March 15, 2017

Anne Sone

Arbitrator

Date