Neutral Citation: 1997 ONICDRG 212
OIC A96-001183
ONTARIO INSURANCE COMMISSION
BETWEEN:
NATALIE E. SZYTYNSKI
Applicant
and
PROGRESSIVE CASUALTY INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Natalie E. Szytynski, was injured in a motor vehicle accident on December 14, 1993. She applied for and received statutory accident benefits from Progressive Casualty Insurance Company ("Progressive"), payable under the Statutory Accidents Benefits Schedule - Accidents On or Between June 22, 1990 and December 31, 1993 ("the Schedule").1 Ms. Szytynski received weekly income benefits from December 21, 1993 until August 12, 1994 when they were terminated. The parties were unable to resolve their disputes through mediation, and Ms. Szytynski applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8 as amended.
The issues in this hearing are:
Was there a settlement of Ms. Szytynski claims pursuant to Regulation 9.1 under the Insurance Act?
Is Ms. Szytynski entitled to receive weekly income benefits from August 12, 1994 and ongoing, pursuant to sections 12(1) and 12(5) of the Schedule?
Ms. Szytynski also claims interest on any amounts owing and her expenses incurred in the hearing.
Result:
Ms. Szytynski's claim was not settled pursuant to Regulation 9.1, under the Insurance Act.
Ms. Szytynski is not entitled to further weekly income benefits.
Ms. Szytynski is not entitled to her expenses incurred in respect of this arbitration.
Background:
The records in this case indicates that at a pre-hearing discussion held on November 27, 1996, the parties advised the arbitrator that they had settled the case, subject to the Settlement Regulation.
At that time, Ms. Szytynski was represented by Mr. Alden Dychtenberg. Mr. Van Moorlehem acted for Progressive. On January 30, 1997, Mr. Dychtenberg wrote to the Commission advising that Ms. Szytynski had rescinded the settlement. He requested a resumption of the pre-hearing.
A resumption of the pre-hearing discussion was held on March 10, 1997 in the presence of Ms. Szytynski, her counsel and Progressive's representative, Mr. Van Moorlehem. Progressive took the position that the case had been settled following the pre-hearing of November 27, 1996.
Following the second pre-hearing, the arbitrator sent a letter to the parties confirming the issues in the arbitration, the production undertakings and the date set for the arbitration. The time, place and other details of the hearing were confirmed by a Notice of Hearing and an Amended Notice of Hearing, sent to the parties on March 12, 1997 and April 1, 1997, respectively. Both Notices of Hearing stated the hearing dates as December 2, 3 and 4, 1997.
On November 5, 1997, Mr. Dychtenberg sent a letter to the Commission stating as follows:
It appears that, unfortunately, we have lost contact with our client. A significant number of letters and telephone calls have gone unanswered. We have indicated to Ms. Szytynski that, in the circumstances, we are unable to continue acting on her behalf.
Mr. Dychtenberg's motion to be removed as counsel of record for Ms. Szytynski was heard by an arbitrator on November 26, 1997, by a telephone conference. Ms. Szytynski was not available; however, the arbitrator heard submissions from Mr. Dychtenberg and Mr. Van Moorlehem, and granted the motion. The arbitrator communicated his decision to Ms. Szytynski by a letter dated November 26, 1997.
Reasons for Decision:
The hearing in this matter was convened at 10:00 a.m, on December 2, 1997, as scheduled. Mr. Van Moorlehem attended representing Progressive; however, Ms. Szytynski did not attend. No one appeared at the hearing on her behalf. She had filed no medical or other documents.
I adjourned the hearing for half an hour, to wait for her. Upon resumption, Ms. Szytynski did not attend. Mr. Van Moorlehem submitted that I proceed with the hearing in Ms. Szytynski's absence.
Rule 34.5 of the Dispute Resolution Practice Code ("the Code”) states:
Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party's absence or without the party's participation, as the case may be, and the party is not entitled to any further notice of the proceeding.
I have heard no evidence to suggest that Ms. Szytynski was unable to attend at the hearing due to sickness or other personal emergency. There is no indication in the file that any of the letters and Notices of Hearing sent to Ms. Szytynski had not been received by her. No request for an adjournment on her behalf has been received. I was satisfied that Ms. Szytynski was duly served with notice of this hearing. I proceeded with the hearing in her absence.
At the outset of the hearing, Mr. Van Moorlehem withdrew the issue of whether the matter had been settled, conceding that Ms. Szytynski can proceed with her application. Mr. Van Moorlehem filed six exhibits, including correspondence to Ms. Szytynski requesting production of records. He advised that he has not received a response from Ms. Szytynski.
Mr. Van Moorlehem outlined the reasons for the termination of Ms. Szytynski's benefits. He submitted that Ms. Szytynski has not discharged the onus of proof, and requested that I dismiss her arbitration, and deny her any expenses she may have incurred in this arbitration. However, he did not request that I consider an award against Ms. Szytynski for the return of the Insurer's filing fee, under section 282(11.2) of the Act.
The onus is on Ms. Szytynski to pursue her claim with due diligence and to present evidence supporting her claim. She has done neither in this case. Accordingly, I dismiss her application. She is not entitled to her expenses incurred in respect of the arbitration.
Order:
Ms. Szytynski is not entitled to further weekly income benefits.
Ms. Szytynski is not entitled to her expenses incurred in respect of the arbitration.
December 18, 1997
Asfaw Seife Arbitrator
Date
Appendix A
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on December 2, 1997, before me, Asfaw Seife, Arbitrator.
Present at the Hearing:
Neither the Applicant nor her representative appeared.
Ms. Camela Chimienti-Jakob attended on behalf of Progressive, represented by Mr. Casey Van Moorlehem.
Witness: There were no witnesses
Documents before the arbitrator:
Report of Mediator dated April 10, 1996.
Application for Arbitration dated July 30, 1996
Response by Insurer dated August 19, 1996
Pre-hearing letter from the Commission to the parties, dated December 11, 1996
Letter from Mr. Alden Dychtenberg to the Commission, dated January 30, 1997
Pre-hearing letter from the Commission to the parties, dated March 26, 1997
Letter from Mr. Van Moorlehem to Mr. Alden Dychtenberg and the Commission dated April 3, 1997.
Letter from Mr. Alden Dychtenberg to the Commission dated November 5, 1997.
Letter from Arbitrator Guy Jones to Mr. Alden Dychtenberg and Ms. Szytynski, dated November 26, 1997.
Notice of Hearing March 12, 1997.
Amended Notice of Hearing dated April 1, 1997.
The following exhibits were filed by Mr. Van Moorlehem:
Exhibit 1
Letter dated November 20, 1997 from Mr. Van Moorlehem to Ms. Szytynski
Exhibit 2.
Letter dated July 24, 1997 from Mr. Van Moorlehem to Alden Dychtenberg, Barrister and Solicitor.
Exhibit 3.
Letter dated July 23, 1997 from Mr. Alden Dychtenberg to Mr. Van Moorlehem counsel for Progressive .
Exhibit 4.
Investigation Report of King-Reed and Associates Ltd., dated October 22, 1997.
Exhibit 5.
Letter dated June 13, 1997 from Mr. Van Moorlehem to Mr. Allen Dychtenberg.
Exhibit 6.
Medical Report dated March 20, 1996 by Dr. H. Cameron.
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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.