Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 105

Appeal P18-00013

OFFICE OF THE DIRECTOR OF ARBITRATIONS

D.F. Appellant

and

WAWANESA MUTUAL INSURANCE COMPANY Respondent

BEFORE: Delegate Jeffrey Rogers

REPRESENTATIVES: Mr. Andrew Kerr, solicitor for D.F. Mr. Ian D. Kirby, solicitor for Wawanesa

HEARING DATE: No hearing. Appeal abandoned

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

This appeal is dismissed.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

May 17, 2018

Jeffrey Rogers Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

D.F. appealed the Arbitrator’s order of February 15, 2018. The Arbitrator denied D.F’s request for an adjournment, dismissed the application for arbitration and ordered D.F. to pay Wawanesa its expenses of the arbitration. D.F. submitted that the Arbitrator erred in refusing to grant the adjournment and in summarily dismissing the application, without notice. D.F. also submitted that the Arbitrator erred and the Commission denied natural justice by failing to provide time and resources to present the case. After filing the Notice of Appeal. D.F. did not participate further in the process.

II. BACKGROUND and ANALYSIS

D.F. was injured in an automobile accident on October 13, 2002. D.F. applied for arbitration in September, 2014, after mediation did not resolve disputes about accident benefits she claimed from Wawanesa. The only issue left to be determined in the arbitration is whether D.F. sustained a catastrophic impairment as a result of the accident. The hearing was scheduled to proceed for three days in December, 2017. Wawanesa was ready to proceed. D.F. was not.

D.F. sought an adjournment of the arbitration, without a fixed date, in order to seek expert opinions to rebut the opinion Wawanesa had delivered in early September, 2017. The experts Wawanesa retained had formed the opinion that D.F did not sustain a catastrophic impairment. The Arbitrator denied D.F’s request. He found that delaying the matter as proposed would be unfair to Wawanesa. He noted that D.F. knew of the issue in dispute in 2014, when the application was filed. He noted that there were no plans in place to obtain opinions. He noted that the prospect of obtaining opinions was “minimal” since there was no funding in place to obtain them. He noted that a motion to request an order requiring Wawanesa to fund the opinions could have been brought earlier, so that granting an adjournment to bring such a motion would itself lead to inordinate delay. He noted that the parties had for some time been aware of the winding up of the Dispute Resolution Group at the Commission and that the result of adjourning could be that there would be no arbitrator to hear the matter, when D.F. was finally able to proceed.

After the Arbitrator refused to grant the adjournment, D.F. had no evidence to present. Counsel for D.F conceded that there was no prospect of success. The Arbitrator therefore dismissed the application for arbitration.

D.F. appealed. I acknowledged the appeal on February 16, 2018. I set a timetable for delivery of the Response to Appeal and written submissions. I advised the parties that, unless persuaded otherwise, I intended to decide the matter on the record, without an oral hearing.

Wawanesa delivered its Response on March 2, 2018 and advised that it was content that the matter be decided on the record. I have still not received D.F’s written submissions, which were due on April 13, 2018.

I wrote to counsel for D.F. on April 18, 2018, asking when I might receive the submissions. I did not get an answer. I wrote again on April 27, 2018. I informed counsel that the appeal would proceed without D.F’s submissions, unless I received them, or an explanation justifying a further extension, no later than May 4, 2018. I did not get a response. I wrote again on May 5, 2018, advising that the appeal would be dismissed as abandoned, unless I was persuaded otherwise by correspondence received no later than May 15, 2018. I have not received a response.

I am satisfied that D.F. has abandoned this appeal. It is therefore dismissed.

III. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.