Neutral Citation: 2003 ONFSCDRS 141
FSCO A02-000642
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHERIDON F. FORBES
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
September 15, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Forbes did not appear
Jeffrey A. Gauze for TTC Insurance Company Limited
Issues:
The Applicant, Sheridon F. Forbes, claimed that he was injured in a motor vehicle accident on March 31, 2000. He applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.1 TTC refused to pay. The parties were unable to resolve their disputes through mediation, and Mr. Forbes applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The arbitrator who conducted the pre-hearing reported the issues in this hearing as follows:
Was Mr. Forbes involved in an "accident" within the meaning of section 2 of the Schedule?
Is Mr. Forbes entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule? I did not understand Mr. Forbes to be claiming IRBs beyond the two-year mark.
What is the amount of weekly income replacement benefit that Mr. Forbes is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Forbes entitled to receive a medical benefit of $3,985 for physiotherapy received from Advanced Rehab Centre, and $1,813.65 for a psychological assessment and report prepared by Dr. Giddens, claimed pursuant to section 14 of the Schedule? Mr. Forbes also claims $225 for the cost of a Disability Certificate.
Is Mr. Forbes liable to pay an amount to TTC that does not exceed the amount assessed against TTC in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because he commenced an arbitration that is frivolous, vexatious or an abuse of process?
Is TTC liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Forbes?
Is TTC liable to pay Mr. Forbes's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Forbes liable to pay TTC's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Forbes entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
The Application for Arbitration is dismissed.
Mr. Forbes shall pay TTC $3,000 pursuant to subsection 282(11.2) of the Insurance Act.
Mr. Forbes shall pay TTC $500 plus GST of $35 for its expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act.
EVIDENCE AND ANALYSIS:
The hearing was scheduled to start at 10:00 a.m. Mr. Forbes did not attend and I concluded the hearing at 10:30 a.m.
The pre-hearing took place on February 12, 2003. Mr. Forbes and Mr. Gauze participated and the hearing was scheduled to commence on May 26, 2003. Mr. Forbes did not comply with production orders and on April 30, 2003, the pre-hearing arbitrator resumed the pre-hearing and again ordered Mr. Forbes to produce certain documents or sign authorizations so that TTC could request the documents. The arbitrator granted TTC's request for an adjournment of the hearing and left it to the Case Administrator to contact the parties to arrange a new hearing date.
The Case Administrator contacted the parties to arrange a new hearing date and in a letter dated May 27, 2003, she thanked Mr. Forbes for providing her with his new address. In that letter she advised Mr. Forbes that the hearing was rescheduled to commence September 15. With that letter she provided Mr. Forbes with a new Notice of Hearing setting out the new hearing dates.
I am satisfied that the Commission served Mr. Forbes with notice of this hearing. Since he did not present evidence, he did not satisfy the onus on him of establishing entitlement to the benefits he claimed. Accordingly, his Application for Arbitration is dismissed.
Mr. Forbes put TTC to the expense of responding to a claim and, without notice to TTC, failed to follow through with his claim. In my view, he commenced an arbitration which was an abuse of process and frivolous. Accordingly, pursuant to subsection 282(11.2) of the Insurance Act, I award TTC $3,000, which is the amount it paid the Commission to respond to Mr. Forbes's Application for Arbitration.
EXPENSES:
The criteria I should consider in awarding expenses, and the amount of fees I may award, are set out in Sections 3 and 12 of Ontario Regulation 664, R.R.O. 1990 as amended by Ontario Regulation 464/96. Having regard to those criteria, I award TTC $500 as its expenses of the arbitration proceeding together with $35 G.S.T.
September 17, 2003
William J. Renahan
Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 141
FSCO A02-000642
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHERIDON F. FORBES
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Application for Arbitration is dismissed.
Sheridon F. Forbes shall pay TTC Insurance Company Limited $3,535 pursuant to subsections 282(10) and 282(11.2) of the Insurance Act, R.S.O. 1990, C. I.8.
September 17, 2003
William J. Renahan
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, 303/98, 114/00 and 482/01.