Neutral Citation: 1996 ONICDRG 194

OIC A-010205

ONTARIO INSURANCE COMMISSION

BETWEEN:

JAMAL ABDULBAKI

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issue:

The Applicant, Jamal Abdulbaki claimed that he was injured in a motor vehicle accident on October 25, 1992. He applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended, and claimed weekly income benefits, supplementary medical and rehabilitation benefits and interest from Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672¹. He also claimed a special award and his expenses in respect of the arbitration. Royal disputed all of Mr. Abdulbaki's claims.

Following a pre-hearing which concluded on March 30, 1995, an arbitration hearing was scheduled for four days in June 1995. The hearing was adjourned on consent, and further dates were scheduled in September and October 1995. The Applicant alleged that on September 15, 1995, shortly before the hearing, a binding and enforceable agreement was reached, when his lawyer accepted the Insurer's offer to settle, made on September 14, 1995. He alleged that the Insurer's purported rescission on September 18, 1995, on the basis of fraud, was of no effect.

At the request of the Applicant, a hearing was held to determine whether a binding agreement had been reached. Arbitrator Palmer found that while there had been an offer and acceptance, there had not been compliance with the requirements of the settlement regulation.² She therefore concluded that no enforceable settlement had been achieved by the parties.³

Since the release of that decision, in December 1995, the Applicant has taken no further steps with respect to the arbitration. Royal sought an Order dismissing the arbitration.

The issue in this hearing is:

Should Mr. Abdulbaki's claims be dismissed?

Result:

Mr. Abdulbaki's claims are dismissed.

Evidence and Findings:

Since the release of Arbitrator Palmer's decision on December 12, 1995, the Applicant has taken no further steps to bring this arbitration to a hearing or other conclusion. On April 3, 1996, counsel for the Insurer wrote to the Registrar, requesting the scheduling of a further pre-hearing or, in the alternative, confirmation that Mr. Abdulbaki would be abandoning the arbitration.

The Registrar in turn wrote to counsel for the Applicant on April 18, 1996, to determine Mr. Abdulbaki's intentions in relation to the arbitration. In his letter, the Registrar noted that he had received no response to his telephone messages in this regard. He also informed counsel for the Applicant that failing such advice, by April 25, 1996, he would assume that Mr. Abdulbaki had abandoned the arbitration. The case administrator closed the file on May 7, 1996.

Royal then requested an Order dismissing the arbitration. The Registrar's office issued a Notice of Hearing, dated June 4, 1996, returnable on September 23, 1996 at 10:00 a.m to determine the Insurer's motion for an Order dismissing the arbitration. On June 6, 1996, counsel for the Applicant, Mr. Huclack wrote to the Registrar and advised that he was attempting to obtain instructions from his client, Mr. Abdulbaki with respect to the arbitration.

The hearing commenced, as scheduled, on September 23, 1996 at 10:00 a.m. Counsel for the Insurer, Mr. Aikins, was present. Neither the Applicant, nor anyone acting on his behalf was present. Mr. Aikins advised that he had spoken to Mr. Huclack, who had represented the Applicant since September 1995. Mr. Aikins relayed Mr. Huclack's advice that he would not be attending the hearing, as he had no instructions.

Mr. Abdulbaki had attended the pre-hearing and had been represented by counsel. He had also been represented by counsel at the hearing of the preliminary issue. I recessed the hearing for 15 minutes to allow for the possibility that the Applicant was simply late. I resumed at 10:15 a.m. Mr. Aikins alone was in attendance.

The Notice of Hearing, dated June 4, 1996, indicates that it was forwarded to Mr. Abdulbaki at the same address as the pre-hearing letter and the decision on the preliminary issue in this arbitration. There was no indication in the arbitration file that the Notice of Hearing or other mail directed to Mr. Abdulbaki 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 was 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.

I was satisfied on the basis of the information outlined above that Mr. Abdulbaki 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. Accordingly, I proceeded with the hearing in Mr. Abdulbaki's absence.

The arbitration process is designed to be expeditious. The Applicant took no steps to request a hearing date or to bring his case to a conclusion, since December 1995. I find that the Applicant has been provided with ample time and opportunity to request a hearing date or to take steps to bring his case to a conclusion during the past nine months, but took no steps to do so. Mr. Abdulbaki did not attend to oppose Royal's motion for dismissal of the arbitration. I conclude that given the history and circumstances of this case, Mr. Abdulbaki has abandoned this arbitration.

Section 282(3) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, requires that I determine the issues before me on the merits. Section 35.4 of the Dispute Resolution Practice Code - August 1, 1995 release, prevents me from making an Order against Mr. Abdulbaki simply on the basis that he failed to attend or participate at the hearing.

In this arbitration, Mr. Abdulbaki claimed weekly income benefits under section 12 of the Schedule, supplementary medical and rehabilitation benefits under section 6 of the Schedule, and interest on overdue benefits under section 27 of the Schedule. He claimed a special award and his expenses in respect of the arbitration under the provisions of the Insurance Act.

As the Applicant, Mr. Abdulbaki has the burden of proof with respect to the claims he advanced. He provided me with no evidence in relation to his claims. I find that he failed to satisfy his burden of proof, and therefore dismiss Mr. Abdulbaki's claims for weekly income benefits, supplementary medical and rehabilitation benefits, interest on overdue benefits and for a special award. I also dismiss Mr. Abdulbaki's claim for expenses in respect of the arbitration, except for expenses as awarded by Arbitrator Palmer, on December 12, 1995.

Order:

Mr. Abdulbaki's claim for weekly income benefits is dismissed.
Mr. Abdulbaki's claim for supplementary medical and rehabilitation benefits is dismissed.
Mr. Abdulbaki's claim for interest is dismissed.
Mr. Abdulbaki's claim for a special award is dismissed.
Mr. Abdulabki's claim for his expenses in respect of the arbitration, except for expenses as awarded by Arbitrator Palmer, on December 12, 1995, is dismissed.

November 12, 1996

Suesan Alves Arbitrator

Date

Appendix A

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 23, 1996, before me, Suesan Alves, Arbitrator.

Present at the Hearing:

The Applicant, Jamal Abdulbaki, did not appear at the hearing, nor did any representative appear on his behalf.

Royal's Representative: John Aikins Barrister and Solicitor

Witnesses: No witnesses testified at the hearing

Exhibits: Six exhibits were filed at the hearing.

Exhibit 1 Letter dated January 11, 1996

Exhibit 2 Letter dated April 3, 1996

Exhibit 3 Letter dated April 18, 1996

Exhibit 4 Letter dated May 28, 1996

Exhibit 5 Letter dated June 6, 1996

Exhibit 6 Notice of Hearing dated June 4, 1995

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.
Ontario Reg. 780/93
Abdulbaki and Royal Insurance Company of Canada (December 12, 1995), OIC A-010205

Jamal Abdulbaki v. Royal Insurance Company of Canada, 1996 ONICDRG 194

Case Summary