Neutral Citation: 1998 ONFSCDRS 60
FSCO A96-001528
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
AL PHUONG LE
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION
Al Phuong Le claimed to have been injured in a motor vehicle accident on May 10, 1996. She applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule1 Dominion denied payment of any benefits to Ms. Le, on the ground that she was not involved in an accident as alleged.The parties were unable to resolve their disputes through mediation, and Ms. Le applied for arbitration at the Financial Services Commission of Ontario2 under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The arbitration hearing was initially scheduled for November 26 and 27, 1997, but was adjourned by Arbitrator Blackman at the opening of the hearing, at Ms. Le's request, so that she could retain a new representative. Ms. Le had suddenly found herself without a lawyer willing to represent her the day before the hearing was scheduled to begin. Arbitrator Blackman ordered the new hearing date peremptory to Ms. Le.
On October 20, 1998 the arbitration resumed before me. Ms. Le was not present, nor was anyone on her behalf. In the interim period of 11 months, the insurer's counsel had not been contacted by Ms. Le, either personally or by a representative, nor had the Commission. The Commission had mailed a Notice of Rescheduled Hearing to Ms. Le on November 26, 1997. After waiting several minutes for Ms. Le to appear, I placed a telephone call to the number on file for Ms. Le. A professional interpreter engaged by the Commission, Mr. Minh Tran, spoke in Vietnamese with a woman who answered. The woman stated Ms. Le had moved in the last month and had left no forwarding address or telephone number.
I proceeded with the hearing, since I was satisfied that a proper notice had been sent to Ms. Le, months before, in accordance with section 34.3 of the Dispute Resolution Practice Code (Third Edition - April 15, 1997). The Code, at section 34.5, specifically provides that hearings may proceed in such circumstancees. No material was filed before me on behalf of the Applicant and Dominion's counsel, Ms. Janice Duggan, presented no evidence. After delivering oral reasons, I dismissed the arbitration.
Dominion's counsel made submissions with respect to expenses. Ms. Le's application for arbitration was received on September 19, 1996, before amendments to the Act that changed the basis on which expenses can be awarded.3 I find that, in such circumstances, an insured person should not ordinarily be compelled to pay an insurer's expenses, as might be ordered for cases received after November 1, 1996. Dominion's counsel did not assert that Ms. Le should pay Dominion's assessment fee, as permitted by section 11.2 of the Act, because she commenced a proceeding that was frivolous, vexatious, or an abuse of process.
If Ms. Le had commenced this arbitration after November 1, 1996 I would have awarded expenses to Dominion. However, for the reasons expressed in the cases cited, I dismiss the application for arbitration, without expenses.
Order:
- This arbitration is dismissed, without expenses to either party.
October 26, 1998
K. Julaine Palmer
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.
- 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.
- See Worthman and AXA Insurance, (OIC A96-000486, January 30, 1997) and Pinto and General Accident Insurance Company, (OIC A96-001246, April 10, 1997), upheld on appeal (OIC P97-00031, November 26, 1997).