Neutral Citation: 1993 ONICDRG 62
File No. A-003817
ONTARIO INSURANCE COMMISSION
BETWEEN:
IBRAHIM SAID
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Ibrahim Said, was injured in a motor vehicle accident on June 18, 1991. He applied for and received accident benefits from Allstate Insurance, payable under the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8).
Allstate took the position that Mr. Said was a full-time student at the time of the accident and, therefore, his claim was considered under section 13 of the No-Fault Benefits Schedule. Allstate paid Mr. Said weekly benefits of $185 for eight weeks. Allstate terminated his benefits on the grounds that he was no longer substantially unable to perform his essential tasks.
Mr. Said claims that at the time of his accident, he was a self-employed renovator/construction worker and, therefore, is entitled to claim weekly income benefits under section 12 of the No-Fault Benefits Schedule. He also claims that he continues to be eligible for weekly income benefits because he is substantially unable to perform the essential tasks of his pre-accident occupation or employment.
The parties participated in mediation, but the dispute was not resolved. Mr. Said then applied for arbitration. The issues raised in this arbitration are:
Should Mr. Said's claim for weekly benefits be considered under section 12 or section 13 of the No-Fault Benefits Schedule?
For what period is Mr. Said entitled to weekly benefits under section 12 or 13 of the No-Fault Benefits Schedule, whichever is determined to be the appropriate section?
If Mr. Said is entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule, what is the proper amount of those benefits?
Should Allstate be required to pay a special award under section 282(10) of the Insurance Act because it unreasonably withheld or delayed payment of any benefits?
Mr. Said also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Said is not entitled to any additional weekly benefits, or interest.
Allstate Insurance is not required to pay a special award.
Mr. Said is not entitled to his expenses related to the arbitration.
Hearing:
The hearing was held in North York, Ontario, on October 12, 1993, before me, David R. Draper, arbitrator.
Present at the Hearing:
Insurer's
James Flaherty
Representatives:
Barrister and Solicitor
Patricia Martinolich
Law Clerk
Insurer's
Raj Teli
Agent:
Senior Casualty Claims Consultant
Interpreter:
Dawit Tseggai, Global Translations & Interpreters Services (Amharic)
Court Reporter:
Marcia Williams
Exhibits:
Exhibit 1
A photocopy of a letter, dated October 6, 1993, to Mr. Said from Mr. Flaherty, the lawyer acting for Allstate.
Exhibit 2
A letter, dated September 14, 1993, to the Ontario Insurance Commission from Mr. Said's former lawyer.
Exhibit 3
A photocopy of the report of Dr. Bayer, dated July 23, 1991.
Exhibit 4
A photocopy of the report of J. Michael Lacroix Consultants, dated October 20, 1992.
Exhibit 5
A photocopy of the report of Dr. Lloyd, dated January 29, 1993.
Exhibit 6
A photocopy of a "Summary of Investigation Information".
In addition to the exhibits, the following documents were before the arbitrator:
Report of Mediator, dated March 1, 1993.
Application for Appointment of an Arbitrator, dated March 28, 1993.
Letter, dated July 21, 1993, confirming the pre-hearing discussion that took place on July 20, 1993.
Notice of Hearing, dated July 21, 1993.
Reasons for Decision:
Mr. Said was involved in an automobile accident on June 18, 1991. He applied to his insurer, Allstate Insurance, for no-fault benefits. Allstate took the position that at the time of the accident, Mr. Said was a full-time student and, therefore, his claim should be considered under section 13 of the No-Fault Benefits Schedule. Mr. Said was paid weekly benefits of $185 for eight weeks, starting on June 25, 1991. Allstate terminated his benefits on the basis that he was no longer substantially unable to perform his essential tasks.
Mr. Said took the position that at the time of his accident, he was a self-employed renovator/construction worker. He submitted that, as such, he was entitled to claim weekly income benefits under section 12 of the No-Fault Benefits Schedule. He maintained that based on his pre-accident income, he was entitled to the maximum amount of $600 per week. Finally, he claimed that he continued to be eligible for weekly income benefits because he was substantially unable to perform the essential tasks of his pre-accident occupation or employment.
Mr. Said applied for mediation of his dispute with Allstate. During the mediation, he was represented by a lawyer. According to the Report of Mediator, dated March 1, 1993, the dispute was not resolved. On March 28, 1993, Mr. Said's lawyer completed an Application for Appointment of an Arbitrator. Allstate filed its Response, dated April 22, 1993.
On July 21, 1993, a pre-hearing discussion was held at the Ontario Insurance Commission. Mr. Said was present and was represented by his lawyer. Mr. Flaherty represented Allstate. The pre-hearing arbitrator sent a letter, dated July 21, 1993, confirming the discussion. The letter indicates that the issues were clarified and each side agreed to produce certain documents. The letter also confirmed that the arbitration hearing was scheduled for October 12, 13 and 14, 1993, at 10:00 a.m., at the Ontario Insurance Commission. Mr. Said and his lawyer were each sent a copy of this letter.
The Ontario Insurance Commission sent a formal Notice of Hearing, dated July 21, 1991, to the parties and their lawyers. The Notice of Hearing states that an arbitration hearing will take place on October 12, 13 and 14, at 10:00 a.m., at the Ontario Insurance Commission. The Notice of Hearing also includes the following paragraph:
You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.
The Ontario Insurance Commission received a letter, dated September 14, 1993, from Mr. Said's lawyer, indicating that he no longer represented Mr. Said. On October 6, 1993, Mr. Flaherty sent a letter to Mr. Said by courier. The letter states that the arbitration hearing is scheduled for October 12, 13 and 14, 1993, and that he had not yet received various documents that Mr. Said was required to obtain. Mr. Flaherty asked Mr. Said to contact him, either directly or through his new lawyer, if he had retained one. Mr. Flaherty indicated that he did not receive any response to this letter.
Mr. Said did not attend the hearing on October 12, 1993. The Dispute Resolution Practice Code of the Ontario Insurance Commission provides:
15.3 (a) Where a Notice has been given to a party and the party does not attend at the hearing, the arbitrator may proceed with the arbitration in the absence of the party and he or she is not entitled to any further notice in the proceedings.
(b) An arbitration order shall not be made against a party solely on the failure of a party to attend at the hearing.
There was no indication that Mr. Said had not received the Notice of Hearing. In addition, there was no indication that he did not receive the pre-hearing letter, or Mr. Flaherty's letter, both of which set out the hearing dates. After waiting a reasonable length of time, I proceeded with the hearing.
In my opinion, the reports of Dr. Bayer, J. Michael Lacroix Consultants and Dr. Lloyd, and the summary of the investigation evidence (Exhibits 3 - 6) provide reasonable support for Allstate's position. In the absence of contradictory evidence, I am unable to grant any of Mr. Said's claims. I do not have any evidence that he was working as a self-employed renovator/ construction worker at the time of the accident, or that his income was sufficient to support his claim for weekly income benefits of $600 a week. I also have no evidence to support his claim that he continued to be eligible for weekly income benefits for more than eight weeks. I conclude, therefore, that Mr. Said's claims must be dismissed.
Filing Fee
When an applicant applies for arbitration, the insurer must pay of fee of $1,000 if it wishes to participate in the arbitration proceedings. It was submitted on behalf of Allstate that it should be entitled to the return of its $1,000 fee. I am unable to agree.
The Director of Arbitrations has adopted a "Filing Fees and Assessments Policy" which states that "[a]rbitration assessments shall only be refunded to an insurer before the Response due date." The insurer, therefore, is not entitled to the return of its fee simply because it is eventually determined that its position was correct. The fee relates more to the use of the dispute resolution process.
In this case, the dispute was not resolved at an early stage and proceeded to a hearing. In the circumstances, I conclude that it would not be appropriate for me to order the return of Allstate's fee.
Order:
Mr. Said is not entitled to any additional weekly benefits, or interest.
Allstate Insurance is not required to pay a special award.
Mr. Said is not entitled to his expenses related to the arbitration.
October 18, 1993
David R. Draper
Arbitrator
Date