Neutral Citation: 1993 ONICDRG 82
File No. A-004485
ONTARIO INSURANCE COMMISSION
BETWEEN:
DUNG NGOC NGUYEN
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Dung Ngoc Nguyen, was injured in a motor vehicle accident on October 7, 1992. He received accident benefits from Allstate Insurance Company of Canada (Allstate), payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
Mr. Nguyen received weekly benefits until November 25, 1992, at which time they were terminated. Mr. Nguyen claims weekly benefits from this date until March 9, 1993. The issue in this arbitration is:
Is Mr. Nguyen entitled to weekly benefits for the period from November 25, 1992 to March 9, 1993, under section 13 of the No-Fault Benefits Schedule?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Nguyen is not entitled to weekly benefits for the period claimed.
Mr. Nguyen is not entitled to his expenses related to the arbitration.
Hearing:
The hearing was held in North York, Ontario, on December 22, 1993, before me, Susan Naylor, Senior Arbitrator.
Present at the Hearing:
Applicant's agent:
Thanh (David) Gian
Insurer's
Joanne Chadwick
Representative:
Barrister and Solicitor
Insurer's
Michael Sobie
Agent:
Casualty Claims Manager
An interpreter in the Vietnamese language was present. Mr. Nguyen was not present at the hearing.
Exhibits:
There were no exhibits filed at the hearing.
The following documents were before the arbitrator:
Report of Mediator, dated June 1, 1993
Application for Appointment of an Arbitrator, filed September 9, 1993
Notice of Pre-Hearing Discussion, dated September 30, 1993
Response of Insurer, filed October 4, 1993
Letter, dated November 8, 1993, confirming the pre-hearing discussion that took place on November 8, 1993
Notice of Hearing, dated November 8, 1993
Letters, dated November 9, November 11 and December 14, 1993 from Ms. Chadwick, the Insurer's representative, to Mr. Gian, agent for the Applicant, and letter dated December 8, 1993, to Arbitrator Palmer.
Reasons for the Decision:
Mr. Nguyen was involved in an automobile accident on October 7, 1992. His insurer, Allstate, paid disability benefits for the period from October 14, 1992 to November 25, 1992. According to the Insurer's Response, Allstate discontinued benefits because it was not satisfied that Mr. Nguyen was substantially unable to perform his essential tasks after that date. Mr. Nguyen claimed benefits until March 9, 1993.
Mediation was unsuccessful in resolving the dispute between the parties. The documentation before me indicates that Mr. Gian acted as Mr. Nguyen's agent during the course of the mediation. Mr. Gian filed an Application for Appointment of an Arbitrator on behalf of Mr. Nguyen, on September 9, 1993. Allstate, in turn, filed its Response on October 4, 1993.
A pre-hearing discussion was held on November 8, 1993 at offices of the Ontario Insurance Commission. The discussion was chaired by Arbitrator Palmer. Ms. Palmer confirmed the substance of the discussions in a letter, of the same date, which was sent to both parties and to their representatives. The letter indicated that Mr. Gian was present at the pre-hearing; however, Mr. Nguyen did not attend. Mr. Gian was late for the pre-hearing, and told the arbitrator that he had been waiting for his client several blocks away from the Commission. However, Mr. Nguyen had not appeared. At the pre-hearing, Mr. Gian undertook on behalf of his client to obtain certain documentation, including the family physician's notes. At the pre-hearing, the hearing was scheduled, in consultation with the representatives present, for Wednesday, December 22, 1993, commencing at 10:00 a.m., at the offices of the Ontario Insurance Commission. A Notice of Hearing dated November 8, 1993 confirming these details was sent to the parties and their representatives.
Following the pre-hearing, Ms. Chadwick wrote on several occasions to Mr. Gian, in relation to his undertakings. On December 8, 1993, Ms. Chadwick wrote to Ms. Palmer stating that Mr. Gian had not produced the documentation agreed to and that she had been attempting to contact Mr. Gian, without success, to determine his client's intentions with regard to the hearing. Although the letter did not indicate, on its face, that it was copied to Mr. Gian, at the hearing Mr. Gian confirmed that he had received all of the letters sent by Ms. Chadwick. On December 14, 1993, Ms. Chadwick wrote again to Mr. Gian, stating:
Please advise me as to whether your client intends to arbitrate this matter on December 22, 1993.
Mr. Gian confirmed that he did not respond to the correspondence or attempt to contact Ms. Chadwick in any way prior to the hearing on December 22, 1993.
Mr. Nguyen did not attend the hearing on December 22, 1993. Mr. Gian attended on his behalf. He requested an adjournment of the hearing on the basis that he had been unable to contact his client. He stated that he had not been in contact with Mr. Nguyen since meeting with his client several days before the pre-hearing on November 8, 1993. The Insurer objected to the adjournment.
I declined to adjourn the hearing. Mr. Gian presented no reasonable grounds for an adjournment. There was no suggestion that Mr. Nguyen had not received the Notice of Hearing or the pre-hearing letter, setting out the date and time of the hearing. I note that Mr. Nguyen also had not appeared for the pre-hearing discussion, although he apparently received notice of it and had met with his agent several days beforehand.
Mr. Gian requested an adjournment because his client had not contacted him and he was unaware of Mr. Nguyen's immediate whereabouts. However, it must be said that Mr. Gian's efforts to communicate with Mr. Nguyen prior to the hearing were, at best, desultory. He advised that, although he had not communicated with Mr. Nguyen since early November, he felt it was sufficient to try to reach him by placing a couple of telephone calls to his last known address and speaking to an acquaintance. He did not write to Mr. Nguyen.
Mr. Gian also made no effort to contact counsel for Allstate, to advise her of the situation. He did not respond to Ms. Chadwick's letters and did not advise her or the Commission in advance of the hearing that he intended to request an adjournment of the hearing. The explanation he advanced for this singular lack of courtesy - that he hoped his client would show up on the day - was simply inadequate.
Accordingly, after waiting a reasonable length of time, I proceeded with the hearing. Mr. Gian was invited to file any documents in his possession in support of Mr. Nguyen's claim. He did not file any documents and called no evidence on behalf of Mr. Nguyen. No documents had been previously filed with the Commission. The Insurer called no evidence.
In the circumstances, there is no evidence to support Mr. Nguyen's claim for benefits for the period in issue. I therefore dismiss his claim.
I conclude that this is not an appropriate case to award Mr. Nguyen his expenses related to the arbitration.
Order:
Mr. Nguyen is not entitled to weekly benefits for the period claimed.
Mr. Nguyen is not entitled to his expenses related to the arbitration.
December 30, 1993
Susan Naylor
Senior Arbitrator
Date