ONTARIO INSURANCE COMMISSION
Neutral Citation: 1995 ONICDRG 113 OIC A-002392
BETWEEN:
DOUGLAS POLUS Applicant
and
ROYAL INSURANCE COMPANY Insurer
DECISION
Issues:
The Applicant, Douglas Polus, was injured in a motor vehicle accident on June 8, 1991. He applied for and received accident benefits from the Insurer payable under Ontario Regulation 6721.
Weekly income benefits were paid until February 4, 1994, when they were terminated.
The issues in this hearing are:
Is Mr. Polus entitled to receive weekly income benefits under section 12(1) of the Schedule from February 4, 1994 onwards? If so, what is the correct amount of the benefits?
Is the Applicant entitled to a special award?
Is the Insurer entitled to a repayment of benefits paid pursuant to section 27(1) of the Schedule?
Mr. Polus also claims interest on any outstanding amounts owing, and his expenses incurred in the arbitration.
Result:
Mr. Polus is not entitled to additional weekly income benefits.
Mr. Polus is not entitled to expenses incurred in respect of this arbitration.
Mr. Polus is ordered to pay the Insurer $1,000.00, being the amount of assessment the Insurer was required to pay in respect of this arbitration.
Hearing:
The hearing was held in North York, Ontario, on Monday, June 19, 1995, before me, Asfaw Seife, Arbitrator.
Present at the Hearing:
Insurer's Representative:
Stanley Tessis Barrister and Solicitor
Documents before the Arbitrator:
Report of Mediator, dated May 16, 1994.
Application for Appointment of an Arbitrator, dated July 5, 1994.
Response by Insurer, dated July 27, 1994.
Notice of pre-hearing discussion, dated August 17, 1994.
Letter dated December 19, 1994, confirming the pre-hearing discussion that took place on December 15, 1994.
A "Pre-hearing Discussion Brief" filed by the Insurer on December 14, 1994.
Notice of Hearing, dated December 21, 1994.
Letter dated June 8, 1995, from Mr. Altor Shields, Barrister and Solicitor, to the Ontario Insurance Commission.
Letter dated June 13, 1995, from Mr. Stanley Tessis, the Insurer's counsel, to the Ontario Insurance Commission.
Notes of the pre-hearing arbitrator, dated June 15, 1995.
Reasons for Decision:
Mr. Polus was paid weekly income benefits of $384.00 until February 4, 1994. Royal Insurance Company ("Royal") terminated his benefits on the basis that he no longer suffers from a substantial inability to perform the essential tasks of his employment.
Mr. Polus applied for mediation of his dispute with the Insurer. During the mediation, he claimed ongoing entitlement to weekly income benefits, in the amount of $384.00 per week. The Insurer claimed repayment of benefits paid to Mr. Polus.
According to the Report of Mediator, dated May 16, 1994, the dispute was not resolved.
On December 15, 1994, a pre-hearing discussion was held at the Ontario Insurance Commission. Mr. Polus was notified of the pre-hearing discussion, but did not attend; however, he was represented by Mr. Shields. Mr. Tessis represented Royal.
The pre-hearing arbitrator sent a letter to both parties, dated December 19, 1994, confirming the discussion. The letter indicates that the issues in dispute were identified and that the pre-hearing arbitrator made orders for the production of certain medical and financial documents and records by Mr. Polus, at Royal's request. The letter also advised that a preliminary issue raised by the Insurer concerning Mr. Polus' failure to attend a medical examination required by the Insurer under section 23(2) of the Schedule would be dealt with at the hearing.
The pre-hearing letter confirmed that the arbitration hearing was scheduled for June 19, 20, and 21, 1995, at 10:00 a.m., at the Ontario Insurance Commission.
The Ontario Insurance Commission sent a formal Notice of Hearing to the parties, dated December 21, 1995. The Notice of Hearing states that an arbitration hearing will take place on June 19, 20, 21, 1995, 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.
On June 9, 1995, the Ontario Insurance Commission received a letter, dated June 8, 1995 from Mr. Shields advising that he was unable to contact his client, Mr. Polus, and that he had received no instructions from him to proceed with the arbitration.
On June 13, 1995, the Ontario Insurance Commission received a letter from Mr. Tessis, the Insurer's counsel, advising that the Applicant had not complied with production undertakings made at the pre-hearing. Mr. Tessis also indicated that he was verbally advised by Mr. Shields that Mr. Shields was unable to locate his client and that it was doubtful that his client would be attending the arbitration. Mr. Tessis requested a further pre-hearing to deal with these issues.
A telephone discussion was held with the pre-hearing arbitrator, Mr. Tessis and Mr. Shields on June 15, 1995. The notes of the pre-hearing arbitrator summarizing the telephone discussion indicate that Mr. Tessis advised that if Mr. Polus failed to attend at the hearing, he would ask for the dismissal of the arbitration. Mr. Shields was unable to confirm whether or not Mr. Polus would be attending the hearing. No arrangements were made regarding production of documents by Mr. Polus.
The hearing was held on June 19, 1995, at 10:00 a.m, as previously scheduled. Mr. Polus did not attend.
Mr. Shields appeared briefly at the hearing. He advised that he had attempted to locate Mr. Polus, without success. He has received no instructions from him and had nothing to present on his behalf at this arbitration. Mr. Shields advised he was therefore not able to represent Mr. Polus in the arbitration, and requested to be struck from the record. I granted Mr. Shield's request and he left the hearing room.
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. Polus had not received the Notice of Hearing. In addition, there was no indication that he did not receive the pre-hearing letter. After waiting a reasonable length of time, I proceeded with the hearing.
Mr. Tessis asked me to dismiss the arbitration as the burden of proof to substantiate the claim lies on the Applicant. He stated that the Applicant presented no evidence to support his case. Mr. Tessis advised that in light of previous arbitration decisions, the Insurer had decided to withdraw its claim for repayment of benefits.
Mr. Tessis submitted that Mr. Polus' application for arbitration is vexatious, frivolous and an abuse of process. Mr. Tessis sought an order against Mr. Polus for the payment of the assessment fee of $1,000.00, which the Insurer was required to pay in respect of this arbitration.
In the absence of any evidence or submissions from Mr. Polus, I am unable to grant his claim. Mr. Polus failed to produce the medical and financial documentation ordered, or to present any other information to support his claim. I conclude, therefore, that his claim must be dismissed.
Section 282 of the Insurance Act, R.S.O. 1990, c.I.8., as amended, by section 33 of the Insurance Statute Law Amendment Act, S.O. 1993, c.10, which provides:
282.-(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.
Under section 282(11) of the Act, the arbitrator has discretion to award to an insured person his or her expenses incurred in respect of an arbitration proceeding. The arbitrator's discretion is exercised taking into account the individual circumstances of each case, and having regard to the intent and purpose of the dispute resolution scheme of the Act.
The dispute resolution scheme is designed to facilitate the applicant's access to relatively inexpensive, speedy and informal adjudication of disputes. The abuse of this process seriously undermines the effectiveness of the process, and must be discouraged.
I find Mr. Polus' use of the arbitration system to advance a claim which he is not prepared to pursue to be vexatious and an abuse of process. The Insurer has had to incur considerable expenses in order to defend the claim.
Accordingly, I order Mr. Polus to pay Royal $1,000.00 pursuant to section 282.-(11.2) of the Insurance Act, being the amount assessed against Royal in respect of this arbitration.
Mr. Polus is not entitled to his expenses incurred in the arbitration.
Order:
Mr. Polus is not entitled to any additional benefits.
Mr. Polus is not entitled to his expenses related to the arbitration.
Mr. Polus must pay Royal $1,000.00, being the amount of assessment the Insurer paid in respect of this arbitration.
August 18, 1995
Asfaw Seife Arbitrator
Date