Neutral Citation: 1995 ONICDRG 75
File No. A-009200
ONTARIO INSURANCE COMMISSION
BETWEEN:
JOAO VIEIRA
Applicant
and
COMMERCIAL UNION ASSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Joao Vieira, claimed he was injured in a motor vehicle accident on September 22, 1993. The Insurer paid him weekly income benefits under section 12 of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the "Schedule1") for 32 weeks, until May 12, 1994. The Applicant disputed the amount he was paid. The parties were unable to resolve their dispute through mediation, and Mr. Vieira applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").
The issues in this hearing are:
To what amount of weekly income benefit is Mr. Vieira entitled?
Is the Insurer entitled to a repayment of benefits?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is entitled to weekly income benefits totalling $1,022.90 between September 29, 1993 and May 12, 1994. These benefits have already been received by the Applicant.
The Insurer is entitled to repayment in the amount of $4,916.30, together with interest, as set out in section 27(4) of the Schedule.
The Insurer is awarded its assessment, in the sum of $1,000, to be paid by the Applicant, according to the provisions of section 282(11.2) of the Act.
The Applicant is not entitled to his expenses of the arbitration.
Hearing:
The hearing was held in North York, on May 10, 1995, before me, K. Julaine Palmer, arbitrator. Neither the Applicant nor his representative was present at the hearing. The Applicant's representative had sent a letter to the Commission and the Insurer's lawyer earlier that day. Mary Kelly, supervisor of the accident benefits unit, attended on behalf of the Insurer, as did Guy Farrell, barrister and solicitor. Two witnesses testified: Mary Kelly and Ann Smith.
Evidence and Findings:
The only issue in dispute between the parties is the amount of weekly income benefits to which the Applicant is entitled.
Neither the Applicant nor his representative appeared at the hearing, although his representative had sent a letter to the Insurance Commission in the early morning of the hearing. The hearing proceeded in their absence, according to the provisions of section 15.3(a) of the Dispute Resolution Practice Code and section 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended. Section 7(1) provides:
7(1) Where notice of an oral hearing has been given to a party to any proceedings in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in his absence and he is not entitled to any further notice in the proceedings.
I am satisfied that the proper notice was given to the Applicant. The Notice of Hearing directed by the Commission to both Mr. Vieira and his representative states as follows:
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.
[emphasis added]
Part of the letter from the Applicant's representative reads as follows:
Our forensic accountant, Steve Silverberg C.A. of Miller Bernstein & Associates was stymied in the preparation of his report, because he as I, had difficulty obtaining proper documentation from Mr. Vieira, and his accountant...Nevertheless, what information he did obtain allowed him to conclude that the findings of Hayes Smith seem to be correct. That being the case, and assuming that we are dealing herein with the period outlined, we are now instructed by are [sic] client not to proceed with the Arbitration hearing of May 10, 1995.
Based on that admission, I accept the figures contained in the Hayes Smith report, dated January 13, 1995 and filed as exhibit 3.7.
However, I do not permit the Applicant, in this situation, to withdraw from the arbitration, if that is what his representative intended by his letter. I refer the parties to the Director of Arbitrations' order in the case of Ashley and Alissa Chapman and Allstate Insurance Company of Canada and Wellington Insurance Company, October 6, 1994, Commission File No. P-001897 & P-001898, where she states, at page 6:
The Commission tribunals have an inherent power to control their own processes, and as such, are not bound to accept a withdrawal as putting an end to a case without further orders or consequences.
I accept Mr. Vieira's representative's letter only as an admission of the correctness of the Insurer's accounting evidence.
Mary Kelly, supervisor of the accident benefits unit of the Insurer, testified that the Insurer had paid Mr. Vieira benefits for 32 weeks at $185.60, for a total of $5,939.20, covering the period from one week after the accident until May 12, 1994.
Ann Smith, manager of the claims department, Toronto Mutual Life Insurance Company also testified. She stated that the Applicant received $1,600 in benefits from a collateral policy of accident insurance which he held with her company. This amount was paid for the month September 22 to October 22, 1993.
When the $1,600 from Toronto Mutual Life is taken into account, following the provisions of section 12(4)(b) of the Schedule, I find the Insurer is entitled to repayment in the sum of $4,916.30. Mr. Vieira should have received only $1,022.90 in weekly income benefits over the period September 29, 1993 to May 12, 1994.
Expenses:
I exercise my discretion in this matter under section 282(11) of the Act to deny the Applicant his expenses incurred in respect of this arbitration proceeding. I find that there was no real issue between the parties which should have been brought to arbitration. In addition, the Applicant's conduct has unreasonably prolonged the proceedings.
The Insurer also requests that under the provisions of section 282(11.2) of the Act I award it the amount of the assessment which it has paid under section 14 of the Act. In this case, the assessment amounts to $1,000.
A pattern of nondisclosure and failure to cooperate, which amounts to an abuse of the arbitration process, is clearly shown by the documents filed by the Insurer as exhibits 1 and 2. Exhibit 2, in particular, is a series of letters, dating from October 1993, which trace the course of this matter. In addition, based on my findings with respect to the outcome of this proceeding, I find that the arbitration as commenced was frivolous and vexatious. Accordingly, I award the Insurer payment of its assessment of $1,000.00 by the Applicant, under section 282(11.2) of the Insurance Act.
Order:
The Applicant is entitled to weekly income benefits totalling $1,022.90 between September 29, 1993 and May 12, 1994. These benefits have already been received by the Applicant.
The Insurer is entitled to repayment in the amount of $4,916.30, together with interest, as set out in section 27(4) of the Schedule.
The Insurer is awarded its assessment, in the sum of $1,000, to be paid by the Applicant, according to the provisions of section 282(11.2) of the Act.
The Applicant is not entitled to his expenses of the arbitration.
June 19, 1995
K. Julaine Palmer Arbitrator
Date