Neutral Citation: 2001 ONFSCDRS 184
FSCO A00-000671
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GUIDO DIMUZIO
Applicant
and
GUARDIAN INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
John Wilson
Heard:
July 9, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No-one for Mr. DiMuzio
David Murray for Guardian Insurance Company of Canada
Issues:
The Applicant, Guido DiMuzio, was injured in a motor vehicle accident on July 5, 1998. He applied for and received statutory accident benefits from Guardian Insurance Company of Canada ("Guardian"), payable under the Schedule.1 Guardian terminated weekly income . The parties were unable to resolve their disputes through mediation, and Mr. DiMuzio 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 is:
- Is Mr. DiMuzio entitled to Income Replacement Benefits?
Result:
Mr. DiMuzio is not entitled to Income Replacement Benefits.
Guardian is entitled to its expenses in this matter.
EVIDENCE AND ANALYSIS:
On the first day of the scheduled hearing, neither Mr. DiMuzio, nor anyone representing him showed up for the hearing. After waiting for some time, calls were placed to the Applicant, and his last known representative. A message was also left with Mr. David Sookram, who had represented Mr. DiMuzio in discussions with the Insurer.
The Commission received no response from Mr. DiMuzio, nor from any person acting on his behalf.
The Commission file contains a Notice of Hearing directed to Mr. Guido DiMuzio, at his home address in Toronto. A pre-hearing letter, dated January 23, 2001, indicates that Mr. DiMuzio was present at the pre-hearing when the dates for the hearing were set. A further April 2, 200l letter, reflecting a resumption of the pre-hearing also indicates that Mr. DiMuzio and his solicitor were both present. The second pre-hearing letter, which reiterates the hearing dates, is addressed to both Mr. DiMuzio and his solicitor.
I find that Mr. DiMuzio was provided with clear notice of the date of the hearings, and had knowledge that a hearing was to take place, commencing July 9, 2001.
As required by the Statutory Powers and Procedures Act (SPPA) R.S.O. 1990, c. 22, the notice of hearing contained the following notice:
If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.
After waiting more than one hour, and having heard no response, I advised the Insurer that the hearing could proceed in the absence of Mr. DiMuzio. Guardian indicated that it wished to proceed and that it would call evidence.
In an arbitration proceeding, the onus is on an applicant to produce credible evidence in support of his or her claim. Mr. DiMuzio has produced no evidence.
However, instead of calling no evidence, and relying on the Applicant's non-appearance, the Insurer presented its case, filing a document brief, surveillance reports and tapes, as well as calling its adjuster as a witness.
As Latchford, C.J. noted in Martin v. Canadian Pacific Railway 1931 CanLII 138 (ON CA), [1932] O.R. 571:
It is, I think, quite true, that the evidence of the plaintiff might not of itself have been sufficient to warrant these findings. When counsel for the defendant company failed in an application for the dismissal of the action, at the close of the plaintiff's evidence, he did not rest his case as he might have done, but proceeded to call evidence. He thus elected, as doubtless advised, to further weaken the effect of her evidence. The unexpected result, however, was that evidence for the defence materially strengthened it. In the circumstances, the evidence taken as a whole warranted, in my opinion, the findings of the jury.
Notwithstanding Mr. DiMuzio's failure to submit evidence in support of his claim, I have examined the evidence as a whole, submitted by the Insurer, to see if it supports any elements of Mr. DiMuzio's claim.
The document brief contains the notes of Dr. C.N. Rathe, several medical reports as well as the disability DAC report of Dr. M.K. Joseph Kwok. All of this evidence is before me, and may be taken into consideration in the making of any decision.
The briefs submitted by the Insurer contained Mr. DiMuzio's application for benefits and supporting medical information, as well as descriptions of the motor vehicle accident. As well, the brief contains insurer's medical reports, created at the request of the Insurer.
Based on the limited material before me, I have no hesitation in finding that Mr. DiMuzio was involved in an accident. As a result of the accident, he apparently suffered some soft tissue injuries that restricted his ability to carry on working at his plumbing business.
I find, as well, based on the reports of Drs. Kwok and Deegan, that Mr. DiMuzio suffered some soft tissue injuries of some nature, resulting from the accident.
Mr. DiMuzio's claim is based upon his allegation that the soft tissue injuries were of a nature that interfered, on an ongoing basis, with his ability to carry on the essential tasks of his employment as a plumber. As noted, Mr. DiMuzio did not present any evidence in support of this assertion, and I find in the other documentary evidence no convincing proof that Mr. DiMuzio was unable to carry on his work as a plumber, or plumbing contractor.
The Insurer also presented surveillance videos and supporting reports that appear to show Mr. DiMuzio present at work sites in his capacity as a plumber or plumbing contractor. While surveillance videos can often be both misleading and irrelevant, these, if taken at face value, appear to cast into doubt Mr. Dimuzio's claim to be unable to work at his pre-accident job. At the very least, the video surveillance evidence is of a nature that calls out for a response or an explanation from Mr. DiMuzio. As noted, Mr. DiMuzio did not see fit to respond. I infer from this lack of response that he may well have been able to work at times when he alleged to the Insurer that he was incapacitated.
I find that Mr. DiMuzio has not established, on the balance of probabilities, that his injuries sustained in the motor vehicle accident of July 5, 1998 kept him from performing the essential tasks of his pre-accident employment. Consequently, he is not entitled to income replacement benefits as claimed in his application for arbitration.
Expenses:
As previously noted, neither Mr. DiMuzio, nor his counsel chose to turn up for the arbitration hearing. The Insurer attended for the hearing, and presented evidence. I find that it is both inappropriate and an abuse of process for a party to abandon its claim without notice to the Commission or to the opposite party, and to so compel the unnecessary preparation and attendance of counsel for the Insurer.
Subsection 12(2) of Ontario Regulation 664, as amended provides that an arbitrator may award expenses to an insurer or an insured person based on, inter alia, a party's success in the outcome of the proceeding, and conduct that tended to prolong, hinder or obstruct the proceeding, or was an abuse of process.
I find that Mr. DiMuzio's abandonment of his claim, without notice, or compliance with the Commission's Dispute Resolution Practice Code was an abuse of process, and unnecessarily prolonged this matter. In light of his lack of success at the hearing, and the above findings, I award the Insurer its expenses against Mr. DiMuzio, which I fix at the amount of $2,500, payable forthwith.
December 12, 2001
John Wilson
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 184
FSCO A00-000671
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GUIDO DIMUZIO
Applicant
and
GUARDIAN INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. DiMuzio is not entitled to an Income Replacement Benefit.
Guardian is entitled to its expenses.
December 12, 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.