Neutral Citation: 1997 ONICDRG 208
OIC A96-001606
ONTARIO INSURANCE COMMISSION
BETWEEN:
ILE BEROS
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Ile Beros, was injured in a motor vehicle accident on February 13, 1996. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada payable under the Schedule1 Allstate terminated weekly income replacement benefits on April 23, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Beros applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
At the hearing of a preliminary issue heard on August 12 and September 3, 1997, Arbitrator Sapin ordered that Mr. Beros was not precluded from proceeding to arbitration because of his failure to attend medical examinations scheduled by Allstate pursuant to section 65 of the Schedule. She also ordered that the arbitration proceed on December 2, 1997.
The issues in this hearing are:
What is the correct amount of weekly income replacement benefit that Mr. Beros is entitled to receive pursuant to section 10 of the Schedule?
Is Mr. Beros entitled to receive weekly income replacement benefits after April 23, 1996 pursuant to Part II of the Schedule?
Is Allstate liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Beros?
Is Allstate entitled to the return of its assessment pursuant to 282(11.2) of the Insurance Act?
Allstate withdrew its claim under section 70 of the Schedule for a repayment.
Mr. Beros also claims interest on any amounts owing and his expenses incurred in the arbitration proceeding.
Result:
The correct amount of weekly income replacement benefit is $185.
Mr. Beros is not entitled to weekly income replacement benefits after April 23, 1996.
Mr. Beros is not entitled to a special award.
Allstate is not entitled to the repayment of its assessment.
Mr. Beros is not entitled to expenses.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on December 2, 1997.
Present at the Hearing:
Mr. Beros's
Kevin Doan
Representative:
Barrister and Solicitor
Allstate's
Todd J. McCarthy
Representative:
Barrister and Solicitor
Allstate's
Doug Morgan
Officer:
Preliminary Issues:
Mr. Beros did not appear at the hearing. At the outset of the hearing Mr. Doan applied pursuant to section 9.5 of the Dispute Resolution Practice Code for an order permitting him to withdraw.
Section 9.5 provides as follows:
A representative who wishes to withdraw from an adjudicative proceeding shall notify the Commission and the parties, in writing. Where the party represented consents to the withdrawal, the Registrar shall permit the withdrawal. Otherwise, an adjudicator may permit the representative to withdraw subject to such terms as the adjudicator considers appropriate.
I heard no sworn evidence. The matter proceeded by way of submissions.
A member of Mr. Doan's firm first interviewed Mr. Beros on May 27, 1996 and Mr. Beros retained the firm to represent him at mediation and arbitration. Mr. Beros attended at the firm around July 4, 1996 to have a cheque, to be used as evidence, certified. Other than those two attendances, Mr. Beros has not communicated with Mr. Doan's firm.
In the fall of 1996, Mr. Doan's firm represented Mr. Beros at mediation. Mr. Beros did not attend. Mediation failed and on October 8, 1996 the firm applied for arbitration on behalf of Mr. Beros. Allstate scheduled an insurer's medical examination for Mr. Beros for October 11, 1996. Mr. Beros did not attend the medical examination. A pre-hearing discussion was scheduled for April 7, 1997. Although Mr. Doan's firm wrote and telephoned Mr. Beros to schedule an interview before the pre-hearing, Mr. Beros did not respond and did not attend the pre-hearing. The pre-hearing arbitrator scheduled the hearing of a preliminary issue concerning Mr. Beros' failure to attend the insurer's medical examination. After the pre-hearing, Mr. Doan's firm hired an investigator to search and determine whether Mr. Beros still lived at the Mississauga address he had given the firm. The investigator reported back that Mr. Beros no longer lived there. Around the same time, Allstate hired an investigator who reported that Mr. Beros still lived at the Mississauga address. Neither counsel provided any information on which I could determine which investigative report was more reliable.
On July 29, 1997, Mr. Doan's firm advised Allstate for the first time that it could not locate Mr. Beros and asked for an adjournment of the hearing of the preliminary issue. The adjournment request was denied. Mr. Beros did not attend the hearing of the preliminary issue.
Mr. Doan notified the Commission and the Insurer by letter dated October 14, 1997 that he no longer represented Mr. Beros. He took no steps to notify Mr. Beros.
Section 9.5 of the Dispute Resolution Practice Code requires the representative to notify the "parties," which includes his own client, of his wish to withdraw as representative. Mr. Doan did not notify Mr. Beros of his wish to withdraw as his representative.
As well, I found that Mr. Doan was remiss in waiting until July 1997 before notifying Allstate that he had lost contact with Mr. Beros. As a result of this delay, Allstate was put to unnecessary expense in responding to Mr. Beros' application for arbitration. By October 11, 1996, the date of the first insurer's medical examination, it was clear that Mr. Doan's firm has lost contact with Mr. Beros. At that time, Mr. Doan should have made better efforts to locate Mr. Beros and if he could not locate him, either apply to adjourn the proceedings or withdraw from the proceedings. His delay put Allstate to the unnecessary expense of attending at the pre-hearing and following up on production agreements.
For these reasons, I denied Mr. Doan's request to withdraw from the proceedings.
Notice of hearing:
Subsection 6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, (as amended) provides as follows:
The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.
Mr. Beros, through his counsel, provided the Commission with his mailing address. The Commission mailed notice of this hearing to that address and to Mr. Doan's counsel on April 8, 1997. I am satisfied that Mr. Beros was given reasonable notice of the hearing.
Adjournment:
Mr. Doan asked that the hearing be adjourned. He said that Mr. Beros travelled back and forth between Canada and Croatia and he was hopeful that Mr. Beros would contact him. Mr. Doan has not heard from Mr. Beros for over one year. I heard little evidence of efforts Mr. Doan made to locate Mr. Beros. I found that Mr. Doan did not make reasonable efforts to locate Mr. Beros or that he intends to make reasonable efforts to locate him. I was satisfied that Mr. Beros had a reasonable opportunity to attend or to explain why he could not attend. I was not satisfied that Mr. Beros would attend if the proceedings were adjourned and considering that an adjournment would further delay these proceedings and cause additional expense to Allstate, I declined Mr. Doan's request for an adjournment.
Amount of benefit:
Mr. Doan submitted a completed Employer's Confirmation of Income form which showed gross income of $6,400 in the four weeks before the accident. Allstate submitted a form from the employer which indicated that Mr. Beros was a sub-contractor and that his income in each of the four weeks before the accident was $1,400, $1,400, $1,800 and $1,800 for a total of $6,400. I heard no other evidence on the amount of benefit.
I find that Mr. Beros was self-employed at the time of the accident. Even if he started the self-employment four weeks before the accident,2 section 83 of the Schedule requires that I deduct business expenses from his gross income to calculate his income from self-employment. I heard no evidence of his business expenses and therefore I cannot calculate his income from self-employment. Accordingly, the amount of income replacement is the minimum income replacement benefit of $185 per week.
Entitlement to income replacement benefits:
Mr. Doan argued that Allstate failed to comply with section 64 of the Schedule when it stopped payment of weekly benefits. He argued that Allstate could not stop weekly benefits until it complied with section 64. Section 64 applies where the insurer stops payment of weekly benefits on the grounds that the insured no longer suffers from a disability. I find that section 64 does not apply in this case because Allstate terminated benefits because Mr. Beros failed to provide it with evidence of his business income and expenses prior to the accident.
I heard no evidence concerning Mr. Beros' entitlement to income replacement benefits and accordingly, he is not entitled to income replacement benefits after April 23, 1996.
Special Award:
I heard no evidence on this issue. The claim is therefore denied.
Return of assessment:
Pursuant to subsection 282(11.2) of the Insurance Act, I can order the return of the $2,000 assessment fee paid by Allstate if I find that Mr. Beros commenced an arbitration that was frivolous, vexatious or an abuse of process. I heard no evidence of why Mr. Beros commenced this arbitration and then failed to pursue it. Accordingly, I do not find that the application was frivolous, vexatious or an abuse of process.
Expenses:
The application for arbitration was without merit. Mr. Beros is not entitled to expenses pursuant to subsection 282(11) of the Insurance Act.
Order:
The correct amount of weekly income replacement benefit is $185.
Mr. Beros is not entitled to weekly income replacement benefits after April 23, 1996.
Mr. Beros is not entitled to a special award.
Allstate is not entitled to the return of its assessment pursuant to section 282(11.2) of the Insurance Act.
Buros is not entitled to expenses.
December 16, 1997
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
- Pursuant to subsections 7(3) and 9(3) of the Schedule, Mr. Beros could not elect the four week period prior the accident for the purpose of calculating his income replacement benefit unless he started his self-employment four weeks before the accident.