Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 156

Appeal P17-00062 and P17-00063

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MURALITHARAN KANAGASABAI and KALAIAYARASI NANTHAKUMAR

Appellants

and

UNIFUND ASSURANCE COMPANY

Respondent

BEFORE:

Edward Lee

REPRESENTATIVES:

Darren Kirupa for Mr. Kanagasabai and Ms. Nanthakumar

Jonathan Schrieder for Unifund

HEARING DATE:

September 20, 2018

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:

The appeals are 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.

Edward Lee Director’s Delegate

December 4, 2018

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–2010.¹

This is an appeal from a decision of Arbitrator Parish (“the Arbitrator”) who conducted a joint arbitration hearing, and then issued a joint order dismissing the applications of Muralitharan Kanagasabai and Kalaiayarasi Nanthakumar (“the Appellants”) on August 14, 2017.

The Appellants did not attend at their arbitration hearing on July 17, 2017. In their absence, the Arbitrator ruled that no evidence was presented in regard to their claims, and accordingly, she dismissed their applications.

The Appellants now appeal that order, arguing that they had not received proper notice of the hearing.

For reasons that follow, I am dismissing the appeals.

II. BACKGROUND

The Appellants alleged they were injured in a motor vehicle accident on September 16, 2012, and sought accident benefits from Unifund Assurance Company (“Unifund”). Disputes arose and the Appellants, through their 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 Appellants attended the pre-hearing discussion in this matter when an arbitration date was initially scheduled for September 20-23, 2016. This initial date was later adjourned on consent, and the hearing was rescheduled to take place on July 17-20, 2017.

The hearing took place on July 17, 2017. On that date, the Arbitrator heard from the Appellants’ former legal representative who informed her that on July 13, 2017, one of the Appellants advised him that the Appellants no longer wished to be represented by him. The former representative stated he had another conversation with the same Appellant on July 14, 2017.

The former representative stated he then sent a hand-delivered letter to the Appellants’ address, reiterating their conversations with regard to his continuing to be their representative. This letter informed the Appellants that they were both “required to attend the Arbitration Hearing scheduled to commence on July 17-21, 2017 and the consequences which could result should they fail to attend.”²

The former representative then requested to be removed from the record. The Arbitrator allowed him to be removed as solicitor of record for the Appellants.

At that point, the Arbitrator turned to the applications of the Appellants. She determined that the Appellants had been provided notice of the hearing.³ She found both Appellants had failed to attend at the hearing, and they bore the onus of proving their claims. Since they did not appear and no evidence was presented to support their claims, the applications for arbitration were dismissed.

III. ANALYSIS

The Appellants argue the Arbitrator erred in law when she determined the Appellants had received notice of the hearing that took place on July 17, 2017. Because notice had not been given, the Arbitrator further erred when she applied Rule 37.9 of the Dispute Resolution Practice Code, which states as follows:

37.9 Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

To prove their case, the Appellants filed a number of affidavits as part of their appeal materials.⁴ These materials include affidavits from persons who had interviewed administrative personnel of FSCO, the Licensing Appeals Tribunal, and ADR Chambers (where this hearing was conducted). Also included were affidavits from the Appellants’ themselves, attesting to their medical status on June 17, 2017, and a copy of the letter sent to them by the Appellants’ former representative in which the date of the Appellants’ hearing was set out as July 16, 2017.

None of this evidence was presented to the Arbitrator at the hearing. Rule 50.1 of the DRPC, reads as follows:

50.1 A party to an arbitration may appeal an order of an arbitrator to the Director only on a question of law.

The Arbitrator’s determination that the Appellants had received notice of the hearing was a finding of fact. Findings of fact, may on occasion, amount to errors of law when there is absolutely no evidence to support them, but this is not the situation here. The Arbitrator had evidence from the Appellants’ former counsel that he had informed them of the hearing, and he had even sent a letter confirming that. At the time he sent the letter, he was still acting as their legal representative. There was thus ample evidence to support the Arbitrator’s finding that the Appellants had received notice of the hearing.

On appeal, my jurisdiction is limited to questions of law. Findings of fact made by an arbitrator, when there is evidence to support them, are not within my purview. Nor am I to admit new evidence, generally speaking, or to weigh and make my own findings of fact. The evidence the Appellants seek to adduce in this proceeding might be relevant or admissible in a variation or revocation proceeding (Rule 61 of the DRPC), but not in the context of this appeal.

Accordingly, I find the Arbitrator made no error of law in her determination that the Appellants had notice of the hearing. Further, she made no error of law when she dismissed the applications pursuant to Rule 37.9 of the DRPC.

The appeals are dismissed.

IV. 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.