Neutral Citation: 1998 ONFSCDRS 107
FSCO A96-000422
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SANDEEP SRIVASTAVA
Applicant
and
COACHMAN INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Sandeep Srivastava, was injured in a motor vehicle accident on June 11, 1994. He applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule1 Coachman initially paid the Applicant a weekly income replacement benefit of $305.49, but reduced that amount by 50 percent after November 12, 1994 in accordance with section 73 of the Schedule as a result of his non-attendance at a physiotherapy treatment program. The Applicant's weekly income replacement benefits were terminated on May 5, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Srivastava applied for arbitration at the Financial Services Commission of Ontario2 under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Despite being properly served with a Notice of Hearing, the Applicant did not appear at the hearing held on September 8, 1998.
The issues in this hearing are:
Should the application be dismissed?
Is the Insurer entitled to be reimbursed for the $2,000 assessment fee it paid out?
Result:
The application is dismissed.
The Insurer is not entitled to be reimbursed for the $2,000 assessment fee.
Present at the Hearing:
Coachman's
Ivan Luxenberg
Representative:
Barrister and Solicitor
Coachman's Officer:
Shafik Daudji
Facts and Findings:
In early February 1998, approximately eight months after the pre-hearing in this matter, Applicant's counsel requested to be removed from the record claiming that he had lost contact with his client and was not able to locate him. This request was granted. The Registrar subsequently sent a letter to the Applicant in which he informed him of this and advised that if he did not hear from him within three weeks, his application would be deemed to have been abandoned.
The Applicant responded promptly by letter, indicating his willingness to proceed to a hearing. He appeared not to understand that his counsel was no longer representing him. The Registrar subsequently wrote to the Applicant and asked to be advised whether he had retained new counsel or planned to represent himself at the hearing, and received no response.
The hearing was scheduled to commence at 10:00 a.m. on Tuesday, September 8, 1998. Neither the Applicant nor any representative appeared at the appointed time, and after waiting the customary one-half hour, the hearing proceeded in his absence. There was no indication that Mr. Srivastava had not received the Notice of Hearing. The Insurer referred to medical evidence contained in the brief it had filed, and outlined its reasons for terminating the Applicant's benefits. Counsel requested that the application be dismissed and that the Applicant be ordered to reimburse the Insurer the $2,000 assessment fee that had been levied after the application for arbitration was filed.
Counsel also requested that in the event that the Applicant attempted to resurrect his application at some future point, that he not be permitted to do so unless he paid Coachman the $2,000 assessment fee.
As the Applicant did not appear at the hearing, no evidence was led in support of his position that he was entitled to further income replacement benefits. The onus is on the Applicant to prove his case and as he has failed to do so, I dismiss his application.
Subsection 282(11.2) of the Insurance Act gives an arbitrator the authority to order an insured person to pay an amount up to the amount of the assessment fee levied on the insurer, if he or she "commences an arbitration that...is frivolous, vexatious or an abuse of process." In this case, Coachman has paid a $2,000 assessment fee. It alleges that the Applicant's failure to appear at the hearing shows a total disregard for the process and renders his application either frivolous, vexatious or an abuse of process.
In my view, the fact that the Applicant failed to appear at the hearing does not automatically lead to the conclusion that his application was entirely devoid of merit, as is suggested by the words "frivolous or vexatious," or that it constitutes an abuse of the process. While it appears that Mr. Srivastava was less than fully cooperative throughout the process, I agree with the views expressed in Richard and Lombard General Insurance (FSCO A97-001526, April 29, 1998) that subsection 282(11.2) of the Act is designed to address extreme cases where an applicant commences an application that is entirely without merit or is, in and of itself, an abuse of the process. On the facts before me, I am not prepared to conclude that this is one of those cases.
Finally, given that the application has been dismissed, as opposed to having been withdrawn by the Applicant, there is no need to impose the condition suggested by Insurer's counsel in the event of the application being resurrected.
Order:
The application is hereby dismissed.
The Insurer is not entitled to be reimbursed for the $2,000 assessment fee it has paid out.
Shari L. Novick
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
- Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.