Neutral Citation: 2019 ONFSCDRS 19

FSCO A16-000397

BETWEEN:

NEAL RYAN Applicant

and

INTACT INSURANCE COMPANY Insurer

REASONS FOR DECISION IN A PRELIMINARY ISSUE HEARING

Before: Anne Sone Heard: January 16, 2019, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one for Mr. Ryan John P. Desjardins for Intact Insurance Company

Issues:

The Applicant, Neal Ryan, alleged that he was injured in a motor vehicle accident on January 19, 2015. He applied for statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Ryan 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 preliminary issue hearing are:

Did the incident which occurred on January 19, 2015 constitute an “accident” within the meaning of subsection 3(1) of the Schedule?
Is Neal Ryan or Intact Insurance Company liable for the expenses of this proceeding?

Result:

The incident which occurred on January 19, 2015 did not constitute an “accident” within the meaning of subsection 3(1) of the Schedule.
Neal Ryan is liable to Intact Insurance Company for the expenses of this proceeding in the amount of $1,500.

EVIDENCE AND ANALYSIS:

An Application for Arbitration was filed at the Commission on or about January 21, 2016. Mr. Ryan attended a pre-hearing before Arbitrator Hirsh on July 7, 2016. Mr. Ryan brought a motion on May 1, 2017 to remove Regan Desjardins LLP as counsel for Intact. In a decision dated August 24, 2018, Arbitrator Idemudia dismissed this motion. Director’s Delegate Evans ruled that an appeal from this motion decision was premature.

On October 31, 2018, the Commission sent a Notice of Hearing for the Preliminary Issue Hearing in this matter. The Notice of Hearing stated that the hearing will be held on January 16, 18, 21, and 25, 2019 at the Commission.

In a letter dated January 15, 2019, the Applicant’s representatives, Devry Smith Frank LLP advised that it intended to bring a Motion at the Preliminary Issue Hearing on January 16, 2019, seeking to remove itself as solicitor of record. It also wrote to Mr. Ryan regarding its inability to get instructions from him regarding this matter.

Based on their compliance with the requirements of Rules 9.7 and 9.8 of the Dispute Resolution Practice Code (Fourth Edition—Updated January 2014) (the “Code”), I permitted this firm to withdraw as Mr. Ryan’s representative in this proceeding.

I note that pursuant to section 9.1(c) of the Code, parties must provide the Dispute Resolution Group (DRG) with written notice of any change of their address, and that the DRG is entitled to rely upon the last known address contained in its records. Mr. Ryan did not provide the DRG with any notice of a change in his address.

On January 16, 2019, Mr. Desjardins, counsel for Intact, appeared before me. Despite waiting until 11:00 a.m., Mr. Ryan never appeared before me. Intact requested that this Application be dismissed.

Either Mr. Ryan received notice of this hearing or he failed to provide the DRG with written notice of any change of his address. Accordingly, the DRG is entitled to rely upon the last known address contained in its records.

The onus is on Mr. Ryan to prove his case. Since it appears that he has abandoned this matter, I dismiss it.

EXPENSES:

Intact requested its expenses of this proceeding. As it was entirely successful, I find Intact is entitled to its expenses. I note that Intact was also successful in the motion before Arbitrator Idemudia, and that Director’s Delegate Evans ruled that it was premature to appeal her motion decision. In her decision, Arbitrator Idemudia deferred any issues relating to expenses to the hearing arbitrator.

Intact asked for $3,000, in connection with its filing fee, without submitting a Bill of Costs. Since this case involved various motions prior to the hearing day, I find that Intact is entitled to $1,500 for its expenses in this case.

May 1, 2019

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario