Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 40

FSCO A16-004881

BETWEEN:

PATRICIA ALONZI

Applicant

and

TD GENERAL INSURANCE COMPANY.

Insurer

REASONS FOR DECISION

Before: Arbitrator Alan G. Smith

Heard: By teleconference on February 9, 2018

Appearances: Ms. Timothea Leung participated for TD General Insurance Company

Ms. Alonzi participated

Issues:

The Applicant, Ms. Alonzi was injured in a motor vehicle accident on December 1, 2012 and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Alonzi, through his representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this motion hearing:

Should Ms. Alonzi’s Application for arbitration be dismissed?

Result:

Ms. Alonzi’s Application for arbitration is dismissed.

EVIDENCE AND ANALYSIS:

Background

The following facts are not disputed by the parties.

The Application for Arbitration was filed with FSCO on March 31, 2016.

The Applicant failed to attend and participate in a pre-hearing discussion held on November 23, 2016 before Arbitrator Hirsch. The matter was therefore adjourned to February 9, 2017. The Applicant again failed to attend and participate in the rescheduled pre-hearing discussions held on February 9, 2017 before Arbitrator Lee. As a result, the Application was scheduled to be heard on its merits on August 8, 9 and 10, 2017.

On July 12, 2017, Applicant's counsel, Howie Sacks & Henry, advised that they anticipated being removed as counsel of record in the matter. Concomitantly, by order of Arbitrator Robinson, dated July 21, 2017, the arbitration hearing was adjourned to October 17, 18 and 19, 2017. On July 25, 2017, Howie Sacks & Henry wrote to the Applicant confirming a conversation with her on July 12, 2017 in which she advised she no longer wished the firm to represent her. On July 25, 2017, Howie Sacks & Henry advised FSCO and the Insurer that they were formally requesting a motion for removal as counsel of record pursuant to Rule 9.7 of the Dispute Resolution Practice Code. On October 2, 2017, Howie Sacks & Henry, served the Applicant, Insurer and FSCO with a Motion Record, returnable on October 12, 2017, requesting removal as counsel of record.

On October 2, 2017, the Applicant emailed FSCO and the Insurer advising that she was in the process of obtaining new legal representation.

The Applicant did not attend the Motion for Removal on October 12, 2017. On hearing the motion, Arbitrator Snider was satisfied that the Applicant had been made aware of the motion and ordered the removal of Howie, Sacks & Henry as counsel of record in the matter. Arbitrator Snider also ordered that the arbitration hearing scheduled for October 17, 18 and 19, 2017 be cancelled and adjourned sine die. The Arbitrator also made the following Order:

…Patricia Alonzi must, by no later than 12:00 noon on Friday, November 17, 2017, which is slightly more than 30 days from the date of this order, confirm, in writing, to this commission and to all parties that she will be representing herself OR that she shall appoint a new representative and that representative shall contact this commission immediately and in any event by no later than November 17, 2017 at 12:00 noon to confirm that they will now represent Ms. Alonzi in this matter.

I further order that if Patricia Alonzi does not comply with this order then the Insurer shall have the immediate right to file a motion with this commission to dismiss this Arbitration proceeding.

Arbitrator Snider’s orders were subsequently noted in a pre-hearing letter dated October 12, 2017. During the present motion hearing the Applicant confirmed that she had received the pre-hearing letter and was aware of Arbitrator Snider’s orders contained in it.

On the morning of November 17, 2017, FSCO received email correspondence from the Applicant. Subsequently, the Insurer received a copy of that correspondence. In her email the Applicant acknowledged that she had not obtained new legal representation. She requested further time to retain a new lawyer. Nowhere in the email did the Applicant state that she intended to represent herself in the proceedings.

Analysis

Dismissal of the Application for Arbitration

I am also satisfied that the Applicant was properly notified that her failure to abide by Arbitrator Snider’s order, of October 12, 2017, would result in the Insurer bringing a motion to dismiss her Application for Arbitration.

It is apparent that Arbitrator Snider’s order was intended to prevent the continuing abuse of the arbitration process by the Applicant. I find that, given the Applicant’s failure to follow Arbitrator Snider’s order, the insurer is entitled to an order dismissing the accident benefit claims filed by the Applicant.

In making this order, I rely on Section 23 of the Statutory Powers Procedure Act,² which grants adjudicators, including arbitrators, a wide power, including dismissal, to control the arbitration process and prevent abuses of that process.

In the result, I find there is sufficient reason to dismiss the Application for Arbitration.

EXPENSES:

During the hearing the Insurer advised that it was not seeking its expenses in defending the Application. I therefore make no order in that regard.

February 16, 2018

Alan G. Smith

Arbitrator

Date

ARBITRATION ORDER