Neutral Citation: 1996 ONICDRG 101
ONTARIO INSURANCE COMMISSION
BETWEEN:
DENIS LAVERDIERE
Applicant
and
CUMIS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Denis Laverdiere, was injured in a motor vehicle accident on December 19, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 The Insurer paid Mr. Laverdiere a weekly income benefit under section 12(1) of the Schedule at the rate of $600.00 per week, between December 26, 1991 and December 19, 1994. Mr. Laverdiere claimed that he was entitled to receive weekly income benefits on an ongoing basis. The Insurer alleged that there was no medical evidence which supported Mr. Laverdiere's claim, and disputed his claim for further benefits. 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.
The issues in this hearing are:
Is Mr. Laverdiere entitled to benefits under section 12(5)(b) of the Schedule after December 19, 1994?
Is the Insurer entitled to an award in respect of its expenses under section 282(11.2) of the Insurance Act?
The Applicant claimed interest on overdue benefits and his expenses in respect of the arbitration.
Result:
The arbitration is dismissed. Mr. Laverdiere is not entitled to benefits under section 12(5)(b) of the Schedule after December 19, 1994.
Mr. Laverdiere is not entitled to his expenses in respect of the arbitration under section 282 (11) of the Insurance Act.
The Insurer is entitled to an award in the amount of $2,000 in respect of its expenses under section 282(11.2) of the Insurance Act.
Hearing:
The hearing was held in North York, Ontario, on May 13, 1996, before me, Suesan Alves, arbitrator.
Present at the Hearing:
The Applicant, Denis Laverdiere, did not appear at the hearing, nor did any representative appear on his behalf.
Insurer's
Mr. T. Hanrahan
Representative:
Barrister and Solicitor
Insurer's Officer:
Ms. L. Wilson
Witnesses:
No witnesses testified at the hearing
Exhibits:
One exhibit was filed at the hearing. That exhibit and the other documents before the arbitrator are set out in Appendix A.
Evidence and Findings:
The arbitration hearing commenced, as scheduled, on May 13, 1996 at 10:00 a.m. The Applicant did not attend at the hearing, nor did anyone attend on his behalf. Mr. Laverdiere had been represented by counsel at the pre-hearing. By letter dated March 6, 1996, the Applicant's counsel advised the Commission that he no longer represented Mr. Laverdiere, and that he had informed
Mr. Laverdiere of the hearing dates. In that letter, counsel for the Applicant also provided the Commission with Mr. Laverdiere's last known address. It is the same address as set out in the Application for Arbitration.
The Notice of Hearing, dated February 19, 1996, indicates that it was forwarded to Mr. Laverdiere at that same address. There is no indication in the arbitration file that correspondence directed to Mr. Laverdiere has been returned to the Commission. The Notice of Hearing states in part: "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." I am satisfied that the Notice of Hearing complied with the requirements of section 6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended.
After the hearing commenced at 10:00 a.m., the hearing was recessed. During the recess, I asked the case administrator to telephone the Applicant. I was informed that she made three attempts to telephone Mr. Laverdiere, and that on each of the three occasions she heard a recording which indicated that the Applicant's telephone number was no longer in service.
The hearing resumed at 10:20 a.m. Counsel for the Insurer, Mr. Hanrahan, advised that he forwarded the documents which were to be produced by the Insurer to the Applicant at the same address as set out in the Application for Arbitration and that none of the correspondence had been returned to him. Counsel for the Insurer further advised that he had received none of the Applicant's productions. Mr. Hanrahan also advised that he had attempted to reach the Applicant by telephone in follow up, without success. As of two weeks before the hearing, Mr. Laverdiere's telephone rang, but was not answered. A week before the hearing, the telephone number was answered with a recording stating that the telephone number was no longer in service. Counsel for the Insurer advised that he had contacted the Applicant's former employer and learned that the employer had experienced similar difficulty in attempting to reach Mr. Laverdiere.
I was satisfied on the basis of the information outlined above that Mr. Laverdiere received notice of the hearing. Section 7 of the Statutory Powers Procedure Act provides that where notice of an oral hearing has been given to a party in accordance with the provisions of that Act, and the party does not attend at the hearing, the tribunal may proceed in the absence of the party, and the party is not entitled to any further notice in the proceeding. I proceeded with the hearing in Mr. Laverdiere's absence.
1. The claim for section 12(5)(b)benefits
Mr. Laverdiere was injured in a motor vehicle accident on December 19, 1991. The principal issue in this arbitration was his entitlement to weekly income benefits after December 19, 1994 under section 12(5)(b) of the Schedule. In order to succeed in his claim for these benefits, Mr. Laverdiere must establish that his injury continuously prevents him from engaging in any occupation for which he is reasonably suited by education, training or experience.
As the Applicant in this arbitration, Mr. Laverdiere had the onus of establishing his entitlement to further weekly income benefits. No evidence was tendered on his behalf.
The Insurer alleged that Mr. Laverdiere had returned to work as a roofer in May 1992. Counsel for the Insurer tendered into evidence a statement from "The Roofing Connection", Mr. Laverdiere's former employer, which set out his earnings between March 7, 1991 and April 10, 1996. This documentation established that between March 7, 1991 and December 20, 1991, prior to the accident, Mr. Laverdiere was paid $13,076.30. After the accident, between May 1992 and October 30, 1992, Mr. Laverdiere earned $5,066.00. According to the statement, Mr. Laverdiere was not employed by The Roofing Connection between November 1, 1992 and December 31, 1995. However on January 12, 1996, he earned $300.00, and on April 10, 1996, he earned $100.00.
This evidence by itself does not assist me in determining the merits of Mr. Laverdiere's claim for weekly income benefits under section 12(5)(b) of the Schedule. There appears to be a significant difference in Mr. Laverdiere's earnings from the same employer before and after the accident.. However, there was no evidence which established the nature and extent of his duties before and after the accident, or his education training and work experience.
At the arbitration hearing, I ruled that Mr. Laverdiere failed to meet his burden of proof. Having concluded that Mr. Laverdiere had not met his burden of proof, I dismissed the arbitration. Since Mr. Laverdiere is not entitled to further weekly income benefits, it follows that there are no overdue benefits which would attract interest under section 24(4) of the Schedule.
2. Expenses
(a) The Applicant's claim
Mr. Laverdiere claimed expenses of the arbitration. An arbitrator has a discretion under section 282(11) of the Insurance Act, to grant such expenses. I considered the need to facilitate applicants' access to the arbitration process, the circumstances of this case and the submissions of counsel for the Insurer. In the circumstances of this case, I exercised my discretion to deny Mr. Laverdiere his expenses based on his non-attendance at a hearing, which he requested. It would have been a simple matter for Mr. Laverdiere to advise the Insurer and the Commission that he no longer wished to participate in the hearing.
(b) The Insurer's claim
The Insurer claimed an award in respect of its expenses under section 282 (11.2) of the Insurance Act on the basis that this arbitration application was frivolous, vexatious, or an abuse of process. Counsel for the Insurer submitted that the Insurer had been put to the expense of paying a $2,000.00 assessment in order to respond to Mr. Laverdiere's arbitration application.
In my view, this proceeding was an abuse of process. Mr. Laverdiere commenced an arbitration by filing an application in which he requested an oral hearing. He failed to produce any documentary or other evidence to support his claim and then failed to attend the hearing. He did not notify the Insurer or the Commission that he wished to withdraw his application or that he did not plan to attend the hearing. I therefore award the Insurer the amount of $2,000 in respect of its expenses, to be paid by Mr. Laverdiere, pursuant to section 282(11.2) of the Insurance Act.
Order:
Mr. Laverdiere's application for arbitration is dismissed.
Mr. Laverdiere is not entitled to further weekly income benefits.
Mr. Laverdiere is not entitled to his expenses incurred in respect of the arbitration.
Mr. Denis Laverdiere shall pay CUMIS General Insurance Company the amount of $2,000 in respect of its expenses.
June 17, 1996
Suesan Alves
Arbitrator
Date
Appendix A
Exhibits
Exhibit 1 Statement of Mr. Laverdiere's earnings from 836933 Ontario Ltd., operating as The Roofing Connection for the period from March 7, 1991 to April 10, 1996
Other documents before the Arbitrator
Report of Mediator dated June 30, 1995
Application for Arbitration dated August 14, 1995
Response to Application for Arbitration dated September 5, 1995
Notice of Hearing dated February 19, 1996
Pre-hearing letter dated May 2, 1996