Neutral Citation: 1998 ONICDRG 57, 1998 ONFSCDRS 57

FSCO A97-001111

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LONG VAN PHAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

In his Application for Arbitration, the Applicant, Long Van Pham, alleged he sustained injuries in a motor vehicle accident on June 2, 1996. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule¹ State Farm denied benefits on the ground that the Applicant was not a passenger in a motor vehicle involved in an accident on June 2, 1996 and is not an insured person as defined in the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Pham applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues for the hearing were identified at the pre-hearing discussion on December 1, 1997 as follows:

1. Is Mr. Pham entitled to receive a weekly income replacement benefit from August 16, 1996, and ongoing, at the rate of $248.50, pursuant to section 7 of the Schedule on the basis that he suffers a substantial inability to perform the essential tasks of his employment?

2. Is Mr. Pham entitled to supplementary medical expenses for treatment by Dr. Raghunan (for invoice #00198012 dated January 30, 1998 in the amount of $2,580 and ongoing treatment) claimed pursuant to paragraphs 36(1)(b) and (h) of the Schedule?

3. Is Mr. Pham entitled to a payment in the amount of $75 for a report from Dr. Talangbayan dated October 28, 1997, pursuant to section 57 of the Schedule?

4. Is Prudential liable to pay Mr. Pham's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

5. Is Mr. Pham liable to pay Prudential's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Mr. Pham also claimed interest on any amounts owing.

Result:

1. Mr. Pham was not a passenger in a motor vehicle involved in an accident on June 2, 1996 and is not, therefore, an insured person as defined in the Schedule.

2. Mr. Pham is not entitled to statutory accident benefits or expenses, as claimed in paragraphs 2 through 5 above, or interest thereon, in respect of an alleged motor vehicle on June 2, 1996.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on October 13, 1998, before me, David Leitch, Arbitrator.

Present at the Hearing:

State Farm's

W. Casey Van Moorlehem

Representative:

Barrister and Solicitor

State Farm's

Joseph Marcellino

Officer:

There were no exhibits submitted or witnesses present at the Hearing.

Disposition:

The Applicant did not appear at the time, date and place set for the hearing nor at any time in the hour following. The Insured requested that the Application be dismissed.

The time, date and place of hearing were set at the pre-hearing on December 1, 1997. The Pre-hearing report confirms that the Applicant was present at the pre-hearing and that he was represented by counsel, Mr. L. Brent Vickar. The Insurer was also represented by counsel at the pre-hearing, Mr. W. Casey Van Moorlehem, the same counsel who appeared on the Insurer's behalf at the hearing. Mr. Van Moorlehem informed me at the hearing that his notes of the pre-hearing indicate that an interpreter was present to assist the Applicant to understand the discussion. The fact that a Vietnamese interpreter was requested for the pre-hearing is also reflected in the Commission's records.

Following the pre-hearing, a Notice of Hearing dated January 19, 1998 was sent to all parties. On September 24, 1998, Mr. Vickar wrote to the Commission, with a copy to the Insurer, advising that "despite repeated attempts, we have been unable to locate the above-noted Long Van Pham" and that he, Mr. Vickar, would not be appearing on the Applicant's behalf at the hearing. On receipt of this letter, the Commission wrote to the Applicant on September 28, 1998, enclosing a copy of Mr. Vickar's letter, and requesting that the Applicant indicate "how you intend to proceed for the upcoming hearing." The Commission received no response from the Applicant.

The pre-hearing report, the Notice of Hearing dated January 19, 1998 and the Commission's letter of September 28, 1998 were all sent to the Applicant at 384 Oakwood Avenue, Toronto M6E 2W3. This was the address shown as the Applicant's personal address on the Application for Arbitration. At the hearing, the Insurer produced an unsworn Statement of Service indicating that the Applicant was also served with the Insurer's Arbitration Brief on October 2, 1998 at that address. There was no indication before me that any of this material was returned, undelivered.

The relevant portions of sections 6 and 7 of the Statutory Powers Procedure Act read as follows:

6. (1) The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.

(2) A notice of a hearing shall include a reference to the statutory authority under which the hearing will be held.

(3) A notice of an oral hearing shall include,

(a) a statement of the time, place and purpose of the hearing, and

(b) a statement that if the party notified does not attend at the hearing, the tribunal may proceed in the party's absence and the party will not be entitled to any further notice in the proceeding.

7. Where notice of an oral hearing has been given to a party to a proceeding in accordance with this 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.

Likewise, Rule 34.5 of the Dispute Resolution Practice Code reads as follows:

34.5 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 find that the Notice of Hearing dated January 19, 1998 complied with the content requirements of section 6 of the Statutory Powers and Procedure Act and that this Notice was sent to the Applicant at the address provided as his personal address on his Application for Arbitration. In the circumstances of this case, I further find that this Notice constituted "reasonable notice of the hearing" as required by section 6(1) of the Statutory Powers and Procedure Act. The circumstances to which I refer are:

1. the absence of any indication that the Applicant changed his address during the relevant period or that, if he did, he made any effort to inform either the Commission or his own lawyer;

2. the absence of any indication that the Notice was returned, undelivered, to the Commission;

3. the fact that the Applicant was present at the Pre-hearing when the hearing dates were set and had available to him the assistance of both an interpreter and his own lawyer.

I, therefore, proceeded with the hearing in the Applicant's absence and found no evidence in support of his claim for statutory accident benefits, expenses and interest. The onus was, of course, on the Applicant to supply such evidence. The claim was, therefore, dismissed at the hearing. The Insurer made no claim for expenses.

Order:

1. Mr. Pham was not a passenger in a motor vehicle involved in an accident on June 2, 1996 and is not, therefore, an insured person as defined in the Schedule.

2. Mr. Pham is not entitled to statutory accident benefits or expenses, as claimed, or interest thereon, in respect of an alleged motor vehicle on June 2, 1996.

October 20, 1998

David Leitch Arbitrator

Date

¹ 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.

² 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.