Neutral Citation: 2001 ONFSCDRS 114
FSCO A00-001000
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HERANE SIBHATU
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
John Wilson
Heard:
May 14, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No-one appearing for Ms. Sibhatu
Jamie Pollack for Kingsway General Insurance Company
Issues:
The Applicant, Herane Sibhatu, was injured in a motor vehicle accident on July 24, 1999. She applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.1 Kingsway terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Ms. Sibhatu 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:
Is Ms. Sibhatu entitled to receive a weekly income replacement benefit?
Is Ms. Sibhatu entitled to receive a medical benefit for physiotherapy and chiropractic treatments she received at the Spine Clinic?
Is Ms. Sibhatu entitled to receive a medical benefit for massage therapy received from Philip de Barros?
Is Kingsway liable to pay a special award pursuant to subsection 282(10) of the Act ?
Is Kingsway liable to pay Ms. Sibhatu's arbitration expenses in this matter?
Is Ms. Sibhatu liable to pay Kingway's arbitration expenses in this matter?
Result:
Ms. Sibhatu's claims are dismissed.
Ms. Sibhatu is liable to pay Kingsway's arbitration expenses in this matter.
EVIDENCE AND ANALYSIS:
Neither Ms. Sibhatu, nor anyone representing her, appeared at the Commission on the hearing date of May 14, 2001.
The Commission file contains a pre-hearing letter, signed by Arbitrator Novick, addressed to both Ms. Sibhatu and her counsel, setting the hearing date of May 14, and a Notice of Hearing. The file also contains a letter from Mr. Michael Rotondo, Ms. Sibhatu's counsel, dated February 12, 2001, requesting that he be permitted to withdraw from the file, as well as Arbitrator Novick's reply, dated February 21, 2001, confirming Mr. Rotondo's withdrawal as counsel. Both letters show that they were "copied" to Ms. Sibhatu. Arbitrator Novick's letter reiterates that "The arbitration hearing is scheduled to commence on May 14, 2001, approximately three months from now."
The Commission file shows numerous telephone contacts made by the case administrator, in which Ms. Sibhatu acknowledged having received notice of the hearing. Ms. Sibhatu advised that a "friend" would be representing her, but refused to give the case administrator the name of the person.
On the scheduled hearing date, as noted, no-one showed up for Ms. Sibhatu. In addition there was no response when she was telephoned at the number given by her on the file.
After waiting one hour, the hearing proceeded in her absence. The onus in this matter is upon the Applicant to prove her claims on the balance of probabilities. Having heard no evidence from Ms. Sibhatu, and having received nothing from the Insurer that might be construed as evidence capable of supporting any of Ms. Sibhatu's claims, I find that she has failed to meet the burden of proving her claims. They are, therefore, dismissed.
EXPENSES:
The Insurer made submissions as to its claim for expenses in this matter. Ms. Sibhatu, having failed to appear on this matter, and having failed on every issue, is clearly disentitled to expenses, and I so find. I find, as well that the Insurer is entitled to its reasonable expenses in the arbitration of this matter. Having heard its submissions, I fix this amount at $1,800, payable by Ms. Sibhatu.
July 26, 2001
John Wilson
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 114
FSCO A00-001000
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HERANE SIBHATU
Applicant
and
KINGSWAY GENERAL 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:
Ms. Sibhatu's claims are dismissed.
Ms. Sibhatu shall pay $1,800 as fixed expenses to Kingsway General Insurance.
July 26, 2001
John Wilson
Arbitrator
Date
Footnotes
- The 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.