Neutral Citation: 1995 ONICDRG 170
ONTARIO INSURANCE COMMISSION
BETWEEN:
NUR MOHAMED YUSUF
Applicant
and
PROGRESSIVE CASUALTY INSURANCE COMPANY
Insurer
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Nur Mohamed Yusuf, was injured in a motor vehicle accident on April 3, 1993. He applied for and received statutory accident benefits from the Progressive Casualty Insurance Company ("Progressive"), payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on June 12, 1993. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Mr. Yusuf also applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm") in respect of the same motor vehicle accident. State Farm refused to pay accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Yusuf applied for arbitration under the Insurance Act.
The issue in this hearing is:
- Is Mr. Yusuf entitled to receive weekly income benefits under section 12(1) of the Schedule from June 12, 1993 and ongoing?
The Applicant also claims a special award, interest on any amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Yusuf is not entitled to any additional benefits or his expenses related to the arbitration.
Mr. Yusuf must pay Progressive $2,000, being the amount of assessment the Insurer paid in respect of this arbitration.
Mr. Yusuf must pay State Farm $2,000, being the amount of assessment the Insurer paid in respect of this arbitration.
Hearing:
The hearing was held in North York, Ontario, on November 14, 1995, before me, Joyce Miller, arbitrator.
Present at the Hearing:
Progressive's Representative:
Mark Sones
Barrister and Solicitor
Insurer's Officer:
Tim Christie
State Farm's Representative:
Eric Grossman
Barrister and Solicitor
Background:
Mr. Yusuf was involved in a motor vehicle accident on April 3, 1993. He applied for accident benefits from Progressive and was paid weekly income benefits of $240 from April 10, 1993 until June 12, 1993.
Progressive terminated Mr. Yusuf's benefits on the basis that he had made a material misrepresentation to it. According to Progressive, the car Mr. Yusuf was driving at the time of the accident was not the model he had contracted with them to insure.
Mr. Yusuf applied for mediation, and as noted in the Report of Mediator dated March 28, 1994, mediation failed.
On May 13, 1994, Mr. Yusuf applied for accident benefits from State Farm, the Insurer of the other automobile involved in the accident. State Farm refused to pay benefits on the basis that under the priority rules set out in the Insurance Act, it was not liable to pay benefits. Also, Mr. Yusuf had not provided State Farm with any proof of his claim.
Mr. Yusuf applied for mediation, and as noted in the Report of Mediator dated January 12, 1995, mediation failed.
On January 11, 1995, Mr. Yusuf applied for two arbitrations: one with Progressive, the other with State Farm.
A pre-hearing discussion was held on June 15, 1995. Mr. Yusuf did not attend. He was represented by Mr. Altor Shields.2 At this pre-hearing, it was agreed to exchange documents, and an arbitration date was set.
On June 21, 1995, a Notice of Hearing was sent to Mr. Yusuf informing him that an arbitration hearing would take place on November 14 and 15, 1995, at 10:00 a.m., at the Commission. The Notice of Hearing includes the following paragraph which reflects the provisions of section 7(1) of the Statutory Powers Procedure Act ("SPPA ")3 and section 35 of the Dispute Resolution Practice Code ("Practice Code").
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 July 6, 1995, a pre-hearing letter was sent to Mr. Yusuf noting the medical and financial documentation he was required to produce.
On October 8, 1995, Mr. Shields wrote to the Commission stating that he was no longer representing Mr. Yusuf, because he had not been able to obtain instructions from him.
On November 7, 1995, Mr. Jim Malcolm, the Registrar of the Commission, wrote to Mr. Yusuf stating that unless the Commission heard from him by noon on November 10, 1995, it would be assumed that Mr. Yusuf intended to abandon his applications. Mr. Malcolm enclosed a copy of section 66 of the Practice Code, which states:
66.1 An applicant may seek permission to withdraw all or part of an application:
(a) by serving on the parties a request to withdraw the application that is signed by the applicant or the applicant's representative; and
(b) by filing the request to withdraw the application together with a Statement of Service in FORM D; or
(c) at the hearing
66.2 The adjudicator may permit an applicant to withdraw all or part of an application if the other parties agree.
66.3 Where a party does not agree to the withdrawal, the adjudicator may:
(a) permit the applicant to withdraw on such terms as the adjudicator considers appropriate;
(b) where the applicant is the insured person, require the applicant to pay the insurer an amount not more than the amount the insurer is required to pay the Commission to participate in the hearing, if the adjudicator decides that the withdrawal is an abuse of process.
Mr. Yusuf did not contact the Commission, nor did he appear at the hearing. There was no evidence that Mr. Yusuf had not received the Notice of Hearing. Neither was there any indication that he had not received the pre-hearing letter. In accordance with section 7 of the SPPA and section 35 of the Practice Code, I proceeded with the hearing.
Submissions
Mr. Sones, on behalf of Progressive, and Mr. Grossman, on behalf of State Farm, submitted that I should dismiss the arbitrations and award the Insurers their costs pursuant to section 282(11.2) of the Insurance Act.
Section 282(11.2) of the Insurance Act provides as follows:
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.
Mr. Sones and Mr. Grossman both concurred in their submissions as to why the arbitration should be dismissed and why the Insurers should be awarded costs.
They submitted that, except for a medical Form 4 and an Employer's Confirmation of Income form, Mr. Yusuf did not present any supporting documents for his claim for accident benefits. Moreover, Mr. Yusuf did not respond to any of the production requests that were listed in the pre-hearing letter, in particular the medical and financial documentation requested.
They submitted that Mr. Yusuf had abused the process by starting an arbitration without pursuing it. Mr. Yusuf had not provided any proof of his disability or of his income. For this reason, counsel submitted that Mr. Yusuf's claims should be dismissed, his expenses denied, and that he be required to repay the Insurers' filing fees of $2,000.
To support their submissions, counsel relied on a number of cases.4 They noted that in Tallis, Arbitrator Manji held that the failure of the applicant to carry out the undertakings and comply with production orders amounts to an abuse of the arbitration process. In the case of Polus, a fact situation similar to the present case, Arbitrator Palmer dismissed the applicant's claim for failure "...to produce the medical and financial documentation ordered, or to present any other information to support his claim." Moreover, she found that the applicant's "...use of the arbitration system to advance a claim which he is not prepared to pursue to be vexatious and an abuse of process." She noted that the insurer had been forced to incur considerable expenses in order to defend the claim, and accordingly, she ordered the applicant to pay the insurer its filing fee.
Findings
According to section 35 of the Practice Code, an order cannot be made against a party solely because he or she fails to attend at the hearing. However, the onus is on the party to prove his or her claim.
I find that Mr. Yusuf has not proven his claim. Further, Mr. Yusuf failed to provide any medical and financial documentation to support his claim. I therefore conclude that his claim must be dismissed.
I find that by not producing the documents ordered and by not taking any other steps to pursue this arbitration process, Mr. Yusuf has abused the arbitration process. I agree with Arbitrator Palmer's comments in PoJus5 where she states:
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.
Accordingly, I find that Mr. Yusuf must pay to both Progressive and State Farm $2,000 each, pursuant to section 282(11.2) of the Insurance Act, being the amount assessed against both Insurers in respect of this arbitration.
Order:
Mr. Yusuf is not entitled to any additional benefits.
Mr. Yusuf must pay Progressive $2,000, being the amount of the assessment the Insurer paid in respect of this arbitration.
Mr. Yusuf must pay State Farm $2,000, being the amount of the assessment the Insurer paid in respect of this arbitration.
November 24, 1995
Joyce Miller
Arbitrator
Date
Footnotes
- Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule” will be used to refer to Regulation 672.
- Mr. Christie attended on behalf of Progressive, represented by Mr. Gray, and Mr. von Kannen attended on behalf of State Farm, represented by Mr. Grossman.
- R.S.O. 1990, c.S.22, as amended
- Ashley and Alissa Chapman and State Farm Mutual Automobile Insurance Company and Wellington Insurance Company, April 22, 1994, OIC File Nos. A-001897 and A-001898 (appeal decision dated October 6, 1994); John Gouliaeff and Commercial Union Assurance Company of Canada, July 24, 1995, OIC File No. A-003996; Alija Mesihovic and Canadian Surety Company, May 18, 1995, OIC File No. A-009579; Douglas Polus and Royal Insurance Company, August 18, 1995, OIC File No. A-002392; Gus Tallis and Royal Insurance Company of Canada, May 1, 1995, OIC File No. A-007109; and Joao Vieira and Commercial Union Assurance Company of Canada, June 19, 1995, OIC File No. A-009200
- Supra (note # 4)