Filippazzo v. Allstate Insurance Company of Canada, 2000 ONFSCDRS 203

Financial Services Commission of Ontario

Neutral Citation: 2000 ONFSCDRS 203

FSCO A99-000932

BETWEEN:

CALOGERO FILIPPAZZO Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: June 22, 2000, at the Offices of the Financial Services Commission of Ontario In Toronto.

Appearances: John D. Dean for Allstate Insurance Company of Canada

Issues:

The Applicant, Calogero Filippazzo, was denied statutory accident benefits under the Schedule¹ by Allstate Insurance Company of Canada ("Allstate"), arising out of an April 15, 1997 accident. The parties were unable to resolve their disputes through mediation, and Mr. Filippazzo 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. Should the June 22, 2000 hearing be adjourned at Mr. Filippazzo's request?
2. Is Mr. Filippazzo entitled to non-earner disability benefits after the accident under Part III of the Schedule?
3. Alternatively, is Mr. Filippazzo entitled to weekly income replacement benefits after the accident under Part II of the Schedule?
4. Is Mr. Filippazzo entitled to interest on any overdue benefits under section 46 of the Schedule?
5. Is Mr. Filippazzo entitled to his expenses of the arbitration?
6. Is Allstate entitled to its expenses of the arbitration and assessment fee?

Result:

1. The hearing is not adjourned.
2. Mr. Filippazzo is not entitled to non-earner disability benefits under Part III of the Schedule.
3. Mr. Filippazzo is not entitled to weekly income replacement benefits under Part II of the Schedule.
4. Mr. Filippazzo is not entitled to interest on overdue benefits under section 46 of the Schedule.
5. Mr. Filippazzo is not entitled to his expenses of the arbitration.
6. Allstate is not entitled to its expenses of the arbitration or its assessment fee.

EVIDENCE AND ANALYSIS:

Adjournment and conduct of the hearing:

Mr. Filippazzo did not attend the hearing nor did he send a representative. At the commencement of the hearing, I asked the arbitration caseworker to telephone Mr. Filippazzo to inquire if he was going to be late for the hearing and to inform him that the matter would proceed in his absence if he did not appear. The caseworker informed me that she left Mr. Filippazzo a message.

After the hearing concluded, the caseworker told me that Mr. Filippazzo returned her telephone call. He requested that another date be set because he had not received any notice of the hearing and wanted to retain legal counsel. Four days after the hearing, Mr. Filippazzo sent the Commission a letter stating the same request. It was received on June 28, 2000.

The evidence establishes that Mr. Filipazzo had prior knowledge of the time and place of the hearing. He appeared without counsel at the February 24, 2000 pre-hearing, and the arbitrator who conducted the proceeding sent him a letter a day later. This letter sets out the hearing date, place and issues to be decided. The letter does not indicate Mr. Filippazzo sought to retain counsel or that he objected to June 22, 2000 as the hearing date. It was mailed to the same address Mr. Filippazzo listed on his application and was not returned to the Commission by postal authorities.

The Commission also mailed Mr. Filippazzo a separate Notice of Hearing on the same day that the pre-hearing letter was mailed to him. The notice informed him of the hearing time, place, purpose and states:

You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of your case in your absence and you will not be entitled to further notice of the arbitration proceedings.

The post office did not return the notice to the Commission's office. Mr. Flippazzo has not notified the Commission of any address change.

Mr. Filippazzo's claim that he did not know about the hearing is contradicted by his personal presence at the pre-hearing, where the date was set. There is no evidence to support his allegation that he did not receive the formal hearing notice or the pre-hearing letter. On the contrary, I find delivery of the pre-hearing letter and hearing notice is established on the fact that both were not returned by postal authorities from Mr. Filippazzo's address.

Mr. Filippazzo did not file a timely adjournment request before the hearing in accordance with Commission policy. The adjournment policy sent to Mr. Filippazzo with the prehearing letter states that requests should be sent to the Director of Arbitrations at least seven days prior to the hearing. I find that Mr. Filipazzo never filed an adjournment