Neutral Citation: 2017 ONFSCDRS 98

FSCO A14-007522

BETWEEN:

CAROL MARCELLA

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person in Cambridge, Ontario on December 6, 2016 and by written submissions due February 17, 2017

Appearances:

Mr. Gordon Harris for Ms. Carol Marcella Ms. Kerry Figliomeni for Guarantee Company of North America

Issues:

The Applicant, Ms. Carol Marcella, was injured in an accident on April 7, 2011 and sought accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Marcella, through her 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. Gordon Harris of Graves Richard Harris LLP be permitted off-the-record as legal representative for the Applicant?
Should the Applicant's Application for Arbitration be dismissed?
Should the Insurer be granted costs or expenses in respect of the Application for Arbitration?

Result:

Mr. Gordon Harris of Graves Richard Harris LLP is permitted off-the-record as legal representative for the Applicant.
The Applicant's Application for Arbitration is dismissed.
The Insurer is granted $500.00 in expenses in respect of the Application for Arbitration.

EVIDENCE AND ANALYSIS:

The Arbitration Hearing in this matter was scheduled for December 6, 2016 in Cambridge, Ontario. Ms. Kerry Figliomeni, counsel for Guarantee, attended. Mr. Gordon Harris attended on behalf of the Applicant. The Applicant failed to attend.

Mr. Harris stated that he had lost contact with his client despite diligent efforts to contact her by telephone, in writing and in person. The Applicant's counsel requested to be removed as counsel of record due to a breakdown of the client solicitor relationship.

DECISION

Removal of Counsel of the Applicant

At the Hearing, the Applicant's counsel stated that he had trouble reaching the Applicant leading up to the Hearing; however, Mr. Harris stated that the Applicant was notified about the Hearing. Based on the evidence provided, I am satisfied that the Applicant was notified of the Hearing and all proceedings to date since the Pre-Hearing. I'm also satisfied that the Applicant knew that she must attend, but chose otherwise. She also knew, through her representative, that failing to attend the Hearing could result in Guarantee bringing a Motion to dismiss the Application for Arbitration on a for cost basis. As a result, I have ordered that Mr. Harris be removed as counsel for the Applicant.

Motion to Dismiss the Application for Arbitration

The Insurer brought forward a Motion to dismiss the Applicant's Application for Arbitration. The onus of proof is on the Applicant to establish her entitlement to the benefits in dispute listed in her Application for Arbitration. Accordingly, her failure to attend means that she has failed to meet this onus. In order to give the Applicant an opportunity to comment on this Motion, I reserved my decision on dismissal until 45 days from the date of the Hearing. If I did not receive a response in writing to a letter sent to the Applicant within 45 days of the Hearing, I would then proceed to dismiss the Applicant's Application for Arbitration on a for cost basis.

The Applicant failed to respond to my letter, dated December 21, 2016, therefore, I am dismissing the Applicant's Application for Arbitration with costs awarded against the Applicant. The awarded costs against the Applicant must be paid within 180 days of this Decision to the Insurer. Further, the Applicant cannot file or commence any future claims against the Insurer until the outstanding amounts have been paid.

EXPENSES:

The Insurer has requested expenses in this matter as a result of the dismissal of the Applicant's Application for Arbitration. A Bill of Costs was submitted in the amount of $5,363.55 in accordance with the provisions of the Dispute Resolution Practice Code and Section 282(11) of the Insurance Act. After careful consideration, I am prepared to grant the Insurer its expenses in the amount of $500.00 rather than $5,363.55 based on compassionate grounds due to the Applicant's advanced age at the time of the Hearing.

April 3, 2017

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario