Quy Van Ngo v. Zurich Insurance Company, 1999 ONFSCDRS 156

Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 156 FSCO A97-001857

BETWEEN:

QUY VAN NGO Applicant

and

ZURICH INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Frederika Rotter

Heard: July 19, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Joseph J. Faust for Mr. Ngo Walter J. Scodeller for Zurich Insurance Company

Issues:

The Applicant, Quy Van Ngo, was injured in a motor vehicle accident on March 6, 1997. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits on September 5, 1997. The parties disagreed about the amount of the weekly income benefit payable and Zurich claimed that it is entitled to a repayment of benefits. The parties were unable to resolve their disputes through mediation and Mr. Ngo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Ngo entitled to receive an income replacement benefit under section 4 of the Schedule, and if so, what is the amount of the weekly benefit?

2. Is Zurich entitled to a repayment of benefits under section 47 of the Schedule?

3. Is either party entitled to its expenses of the arbitration proceeding?

Result:

1. Mr. Ngo's arbitration is dismissed.

2. I make no order as to the repayment of benefits.

3. Mr. Ngo shall pay Zurich its expenses of the arbitration proceeding, in the amount of $1,157.35.

EVIDENCE AND ANALYSIS:

Mr. Ngo was involved in a motor vehicle accident on March 6. 1997. He applied for accident benefits to Zurich, claiming that he had been working for Proline Auto Collision from March 3, 1997 to March 6, 1997. Based on Mr. Ngo's representations, Zurich paid him a weekly income benefit of $71.63.

Mr. Ngo filed for arbitration after the unsuccessful mediation of his claim that his benefits should be higher than $71.63 weekly. He did not participate in the pre-hearing discussion, but was represented by his legal counsel.

It appears from the pre-hearing letter that, at the pre-hearing, Mr. Ngo's counsel put forward the argument that Mr. Ngo's weekly income replacement benefits should be calculated based on an extrapolation of his earnings in the three days before the accident. In order to resolve this question expeditiously, the pre-hearing arbitrator ordered that each party prepare and file, prior to the hearing, written submissions on the issue of whether Mr. Ngo's income should be extrapolated for the purpose of determining his net weekly income, and hence his weekly income replacement benefits.

Zurich took the position at the pre-hearing that Mr. Ngo did not provide sufficient evidence to confirm his employment and accordingly claimed repayment of all benefits paid.

Zurich prepared and filed submissions regarding extrapolation, as ordered by the pre-hearing arbitrator, which the Commission received on July 16, 1999. No submissions were received from Mr. Ngo.

At the hearing, counsel for Mr. Ngo indicated that he had not seen his client in more than one year and thus was not able to get instructions from him. He indicated that his client had moved, without advising him of a new address or telephone number, and he had no way to contact him.

Zurich requested an order dismissing the arbitration, with an order for expenses and an award in the amount of its assessment, submitting that the arbitration was frivolous, vexatious and an abuse of process, which Mr. Ngo had commenced and then abandoned.

Section 34.5 of the Dispute Resolution Practice Code and section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, authorize an arbitrator to proceed with a hearing in the absence of a party where notice of the hearing has been given. In this case, notice was sent both to Mr. Ngo and his counsel over one year ago. Mr. Ngo's counsel submitted that the matter should simply be dismissed, without expenses or any other penalty being imposed.

Since I have no evidence with respect to the merits of Mr. Ngo's case, I find it should be dismissed. Similarly, Zurich presented no evidence to support its claim for the repayment of benefits, and accordingly I make no finding or order in this regard.

Counsel for Mr. Ngo argued that in the circumstances of this case it could not be said that Mr. Ngo had abandoned his claim. I do not agree. Mr. Ngo moved without notifying either his counsel or the Commission as to his whereabouts, failed to attend the pre-hearing and did not appear for the hearing of this matter. I find that his conduct amounts to abandonment or a constructive withdrawal of his claim.²

However, I am not prepared to find that Mr. Ngo's claim was frivolous, vexatious or an abuse of process based only on the fact of the abandonment. Zurich advanced no other evidence which would show that this matter, when it was commenced, was frivolous, vexatious or abusive.

EXPENSES:

Zurich is entitled to its expenses. Since Mr. Ngo provided no notice of his whereabouts or that he wished to discontinue his claim, the Commission, counsel for Zurich and his own counsel have wasted time and resources on this matter.

Counsel for Zurich claimed 36 hours at $140 per hour, plus disbursements. However, counsel did not submit dockets or other documentation to substantiate the hours claimed. I find that 36 hours is excessive in light of the facts in this case. I allow 15 hours at the $67 hourly rate established under the Legal Aid Act, R.S. O. 1990, c. L.9, pursuant to section 76.1 of the Dispute Resolution Practice Code, as I heard no evidence or submissions that the hourly rate should be adjusted to include the experience allowance. Accordingly, Zurich is entitled to $1,005 for legal fees plus $70.35 for GST, for a total of $1,075.35. I also allow the disbursements of $82 claimed by Zurich, for a total award of expenses of $1,157.35.

August 16, 1999

Frederika Rotter Senior Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 156 FSCO A97-001857

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

QUY VAN NGO Applicant

and

ZURICH INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Ngo's arbitration is dismissed.

2. Mr. Ngo shall pay Zurich its expenses of the arbitration proceeding, in the amount of $1,157.35.

August 16, 1999

Frederika Rotter Senior Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2See Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, June 11, 1996) and Dubajic and State Farm Mutual Automobile Insurance Company, (OIC A96 -001133, October 21, 1997).