Neutral Citation: 2001 ONFSCDRS 42

FSCO A99-000789

BETWEEN:

ENRIQUE TORRES

Applicant

and

PAFCO INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

January 8, 2001, at the Offices of the Financialc Services Commission of Ontario in Toronto.

Appearances:

William M. Sproull for Pafco Insurance Company Limited

No one appeared for Mr. Torres.

Issues:

The Applicant, Enrique Torres, was injured in a motor vehicle accident on October 24, 1997. He applied for and received statutory accident benefits from Pafco Insurance Company Limited ("Pafco"), payable under the Schedule.¹ Pafco terminated weekly income replacement benefits on June 13, 1998. The parties were unable to resolve their disputes through mediation, and Mr. Torres 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, as stated in the pre-hearing letter of February 15, 2000, are listed below. Mr. Torres did not appear at the hearing, however, at the commencement of the hearing counsel for Pafco advised that issues 1 and 3 had been settled on October 12, 2000 and that Pafco was withdrawing issue 5.

Is Mr. Torres entitled to receive a weekly income replacement benefit from June 14, 1998, and ongoing, including beyond October 24, 1999, pursuant to section 4 of the Schedule?
Is Mr. Torres entitled to receive a medical benefit for Injuries Assessment Rehab Centre in the amount of $5,190.92 as of August 31, 1999; and Target Rehab Centre in the amount of $12,554.34 as at July 6, 1999, claimed pursuant to section 14 of the Schedule?
Is Mr. Torres entitled to receive prescription expenses in the amount of $204.83; and travel expenses in the amount of $850, pursuant to section 14 of the Schedule?
Is Mr. Torres entitled to payments for the cost of examinations from Deahy Medical Assessments in the amount of $4,066; and from Dr. Gerald Young in the amount of $251.25, pursuant to section 24 of the Schedule?
Is Mr. Torres liable to repay Pafco the benefits he received from Pafco, pursuant to section 47 of the Schedule?
Is Pafco liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Torres?
Is Pafco liable to pay Mr. Torres' expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Torres liable to pay Pafco's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Mr. Torres also claims interest on any amounts owing.

Result:

Mr. Torres is not entitled to receive payment of Injuries Assessment Rehab Centre's account of $5,190.92 or Target Rehab Centre's account of $12,554.34.
Mr. Torres is not entitled to receive payments of Deahy Medical Assessments' account of $4,066; or Dr. Young's account of $251.25.
Pafco is not liable to pay a special award.
Pafco is not liable to pay Mr. Torres' expenses in respect of the arbitration.
Mr. Torres is liable to pay Pafco's expenses in the amount of $2,864.25 plus GST for its legal expenses and $100 for its disbursements in respect of the arbitration.

BACKGROUND:

The hearing commenced as scheduled on January 8, 2001 at 10:00 a.m. Mr. Torres did not attend the hearing, nor did a representative appear on his behalf.

Mr. Sproull, counsel for Pafco, stated that he had received a letter by facsimile transmission earlier in the morning, just before 8:30 a.m., from Mr. G. Jonathan Franko, Mr. Torres' former representative. The letter had outlined a settlement proposal for the outstanding issues.

The hearing was delayed for a half hour and when neither Mr. Torres nor his representative appeared, an attempt was made to contact Mr. Torres by phone. No one answered the phone.

Mr. Franko's office was also contacted. Although he was in his office, the receptionist said he was busy and could not respond to the call. A message was left explaining that it was important that he call the Commission within a half hour and that the hearing would proceed as scheduled if he did not.

Mr. Franko did not call back. I reconvened the hearing at 11 a.m. Pafco requested an order dismissing the arbitration and a further order that Mr. Torres pay Pafco's expenses for the arbitration.

FINDINGS:

The Notice of Rescheduled Hearing sent to the parties on September 11, 2000 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 the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.

This notice incorporates the provisions of Rule 34.5 of the Dispute Resolution Practice Code (3rd Edition, April 15, 1997), and Section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ("SPPA").

Section 7 of the SPPA gives an adjudicator the authority to proceed with a hearing in a party's absence where the adjudicator is satisfied that proper notice of the hearing has been given to the party in accordance with the SPPA.

I am satisfied that Mr. Torres received a notice of this hearing both verbally and in writing.²

Mr. Torres was present on July 31, 2000 when he asked for an adjournment of the arbitration and was granted the adjournment to this date, on terms. The terms for the adjournment included that the new hearing date was peremptory and that if Mr. Torres changed his residence prior to the new hearing he was required to advise the Commission of his new address within five days of the change.

There is no indication in the file that Mr. Torres changed his residence or that he made any effort to inform the Commission that he would not appear.

The fact that an applicant does not appear at an arbitration hearing does not mean that an arbitrator can dismiss the arbitration solely on the applicant's failure to attend the hearing. However, the onus is on the applicant to prove his or her entitlement to benefits. In this case, there was no evidence provided regarding the merits of Mr. Torres' claim for benefits. Accordingly, I find that his claims should be dismissed.

EXPENSES:

Pafco claims its expenses for this arbitration, pursuant to subsection 282(11) of the Insurance Act. Pafco submits that Mr. Torres has abused the arbitration process. Pafco submits that at the pre-hearing on February 14, 2000 Mr. Torres agreed to provide 13 productions prior to the first arbitration date set for July 31, 2000. Pafco submits that Mr. Torres did not comply with this agreement.

On July 31, 2000, Mr. Torres appeared with Mr. G. Jonathan Franko, an agent, as his representative, and asked for an adjournment because he wanted to find a lawyer to represent him. The presiding Arbitrator, David Leitch, granted the adjournment, but with terms. These terms included: that Mr. Torres was required to provide Pafco with authorizations to obtain the outstanding productions; that Mr. Torres was required to pay Pafco $500 for costs thrown away and $458.10 for disbursements expended in having to issue summonses to obtain productions which Mr. Torres had failed to produce; that all communications between counsel for Pafco and Mr. Torres were to be forwarded to Mr. Franko's office until such time as Mr. Torres retained a lawyer; and as noted above, that the new hearing date was peremptory on Mr. Torres and that Mr. Torres was required to notify the Commission of any change in his residence.

Pafco submits that except for signing the authorizations on July 31, 2000, Mr. Torres has shown a complete disregard for Arbitrator Leitch's orders. As well, Pafco submits that Mr. Torres has caused Pafco a "tremendous expense" in preparation for both the July 31, 2000 and the January 8, 2001 hearing dates, for which the full cost to Pafco could never be recovered.

Pafco submitted that in addition to Arbitrator Leitch's order that Mr. Torres pay Pafco $500 for costs thrown away and $458.10 for disbursements, Mr. Torres should be ordered to pay Pafco its legal expenses and its disbursements in the arbitration.

Pafco submitted that in preparation for the arbitration its counsel had to prepare for every contingency, such as settlement, withdrawal, abandonment or that the case might proceed on the remaining issues.

Pafco presented a Statement of Account from its counsel showing 24.2 hours spent from August 2, 2000 to January 5, 2001 preparing this case for arbitration. In addition, Pafco submitted that its counsel spent at least 10 hours on January 7 and 8, 2001, for last-minute preparation, including dealing with Mr. Franko's offer to settle and attendance at the hearing.

For the time spent in preparation for the arbitration and attendance by its counsel Pafco requests that I award it expenses in the amount of $2,864.25 (34.2 hours x $83.75) plus GST.

Pafco submitted that it was also put to the expense of pursuing the requested 13 productions and that once these productions were received the productions were copied and sent to Mr. Franko ten days prior to the hearing. Pafco asked that it be awarded $100 for disbursements that included correspondence to various persons seeking the productions, mailing, photocopying, faxing and for various sundries.

I agree with Pafco's submission that Mr. Torres' failure to pursue his claims has caused both Pafco and the Commission to expend needless time and resources on this proceeding and that according to the Schedule to the Expense Regulation,³ this failure amounts to an abuse of the arbitration process. Therefore, pursuant to subsection 282(11), I do not hesitate to award Pafco its expenses in this arbitration hearing.

I find that the expenses claimed by Pafco to be reasonable in the circumstances of this case and accordingly, in addition to the expense order made by Arbitrator Leitch on July 31, 2000, I award Pafco the amount of $2,864.25 (34.2 hours x $83.75) plus GST for its legal expenses and $100 for its disbursements.

March 15, 2001

Joyce Miller Arbitrator

Date