Asad Hersi v. American Home Assurance Company, 1999 ONFSCDRS 26

Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 26

FSCO A97-001405

Between:

Asad Hersi Applicant

and

American Home Assurance Company Insurer

Reasons for Decision

Before: Shemin Manji

Heard: December 7, 1998, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Terence James Collier for American Home Assurance Company. Mr. Hersi did not appear and no one appeared on his behalf.

Issues:

The Applicant, Asad Hersi, was injured in a motor vehicle accident on June 15, 1996. He applied for statutory accident benefits from American Home Assurance Company ("American"), payable under the Schedule.¹ American refused to pay any benefits. The parties were unable to resolve their dispute through mediation, and Mr. Hersi 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. Hersi entitled to weekly income replacement benefits from June 22, 1996?
2. Is Mr. Hersi entitled to be paid for the treatments he received from Dixon Rehabilitation Clinic?
3. Is Mr. Hersi entitled to be paid for the cost of a medical report dated June 20, 1996, prepared by Dr. A. Berih?
4. Is Mr. Hersi entitled to interest on any amounts owing?
5. Is American liable to pay Mr. Hersi's expenses in respect of the arbitration?
6. Is Mr. Hersi liable to pay American's expenses in respect of the arbitration?

Result:

1. Mr. Hersi is not entitled to weekly income replacement benefits.
2. Mr. Hersi is not entitled to be paid for the treatments he received from Dixon Rehabilitation Clinic.
3. Mr. Hersi is not entitled to be paid for the cost of Dr. Berih's medical report.
4. Mr. Hersi is not entitled to his expenses incurred in this arbitration proceeding.
5. Mr. Hersi is ordered to pay American $1,000.

Evidence and Analysis:

1. History of Proceedings:

Mr. Hersi was involved in a motor vehicle accident on June 15, 1996. He was one of four occupants of a vehicle driven by a Mr. Abdikadir Mohamoud. The vehicle was rented from Thrifty Canada Ltd. Mr. Hersi was seated in the right front passenger seat. Mr. Mohamoud was driving the vehicle westbound on the Brantford Southern Access, in the Municipality of Brantford, in Brant County. Mr. Mohamoud alleges that a vehicle travelling eastbound crossed into the westbound lane as he entered a relatively gentle left-hand curve. In order to avoid a collision, Mr. Mohamoud veered to his right. The right side of his vehicle struck the guardrail on the north side of the Access.

Mr. Hersi claims that he was injured in the accident and applied for statutory accident benefits. Benefits were denied by American.

Mr. Hersi applied for mediation of his dispute with American. At mediation, he claimed entitlement to weekly income replacement benefits in the amount of $200.87 ongoing from June 22, 1996. He also claimed $6,735 toward the cost of the rehabilitation treatments he received at Dixon Rehabilitation Clinic and $75 toward the cost of a medical report from Dr. Berih dated June 20, 1996.

According to the Report of Mediator dated June 18, 1997, the dispute was not resolved. Mr. Hersi then applied for arbitration of the dispute.

On December 12, 1997, a pre-hearing discussion was held at the Financial Services Commission of Ontario. Mr. Hersi was notified of the pre-hearing discussion, but did not attend; however, he was represented by Mr. Jeffrey Gauze. Ms. Norma Jones attended on behalf of American, represented by Mr. Collier.

At the pre-hearing, a question was raised as to whether Mr. Hersi intended to proceed with the arbitration. A deadline of January 30, 1998 was set for Mr. Gauze to advise American and this Commission as to whether Mr. Hersi intended to proceed. Based on the assumption that the arbitration was going to proceed, the issues in dispute were identified at the pre-hearing and the pre-hearing arbitrator made orders for the production by Mr. Hersi of certain records requested by American. The production of these documents was deferred until January 30, 1998, pending Mr. Hersi determining whether he intended to proceed with the arbitration. The arbitration hearing was scheduled for December 7, 8 and 9, 1998.

The pre-hearing letter dated January 9, 1998, a copy of which was sent to Mr. Hersi at the address on the Application for Arbitration, confirmed the discussions at the pre-hearing, including the production orders, and also confirmed that the arbitration hearing was scheduled for December 7,