Neutral Citation: 2002 ONFSCDRS 201

FSCO A02-000097

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TOT THI NGUYEN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran

Heard: December 16, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one appeared for Ms. Nguyen

Gordon L. Robson for Economical Mutual Insurance Company

Issues:

The Applicant, Tot Thi Nguyen, was injured in a motor vehicle accident on June 25, 2000. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ Economical terminated weekly income replacement benefits on December 28, 2000. The parties were unable to resolve their disputes through mediation, and Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At a pre-hearing discussion in this case held on May 23, 2002, at 2:00 p.m., by telephone conference call, the issues in dispute were identified and agreed to as follows:

Is Ms. Nguyen entitled to receive weekly caregiver benefits, pursuant to section 13 of the Schedule?
Is Ms. Nguyen entitled to receive a medical benefit for various medical expenses, including transportation costs, claimed pursuant to section 14 of the Schedule?
Is Ms. Nguyen entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Economical liable to pay Ms. Nguyen's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Ms. Nguyen entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Economical appeared at the hearing in this matter on Monday, December 16, 2003. Neither Ms. Nguyen nor a representative appeared on her behalf. I delayed the hearing until 11:40 a.m. and was unsuccessful in my attempts to reach either Ms. Nguyen or her representative.

I conducted the hearing in the absence of Ms. Nguyen and added a preliminary issue for my consideration.

The preliminary issue is:

Is Ms. Nguyen entitled to have this hearing reopened?

Result:

Ms. Nguyen may file submissions with me by Monday, January 13, 2003 with respect to reopening this hearing. I will then issue a decision about reopening the hearing. If Ms. Nguyen fails tofile submissions, I will issue a decision based on the evidence from the hearing conducted on December 16, 2002.

EVIDENCE AND ANALYSIS:

When I began the hearing, I heard submissions from Economical about the background to this case. Ms. Nguyen did participate in a pre-hearing discussion on May 23, 2002 and agreed to the hearing dates of December 16, 17, 18 and 19, 2002. However, there are a number of troubling aspects to the file. First, it is not clear who Ms. Nguyen's representative is. Also, although a Notice of Hearing was sent to Ms. Nguyen's address in May, 2002, I received information about a new address for Ms. Nguyen. Another consideration is that Ms. Nguyen only speaks and reads Vietnamese and not English. As well, I am not confident that Ms. Nguyen is aware of the potential cost consequences which may result from her non-appearance.

The Notice of Hearing from the Financial Services Commission specifies: "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." Although I allowed Economical to present its evidence on December 16, 2002, Mrs. Nguyen may file submissions with me until January 13, 2003 to reopen the hearing, in recognition of the concerns listed above.

Should Mrs. Nguyen file submissions by January 13, 2003, I will issue a decision with respect to the issue of reopening the hearing. If I do not receive any submissions by January 13, 2003, I will issue a decision based on the evidence presented to me at the hearing conducted on December 16, 2003. At the same time, I will issue a decision on expenses.

EXPENSES:

I will issue a decision on expenses at the conclusion of this hearing.

December 17, 2002

Judith Killoran Arbitrator

Date