FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 40
FSCO A01-000789
BETWEEN:
MOHAMED DIRIE
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON EXPENSES
Before:
Fred Sampliner
Heard:
Insurer made written submissions.
The Applicant did not make written submissions.
Appearances:
No one appeared for Mr. Dirie
Rose Bilash for Guarantee Company of North America
Issues:
On January 11, 2002, I dismissed the claims of the Applicant, Mohamed Dirie, for statutory accident benefits under the Schedule1 because he was not injured in a motor vehicle accident on December 31, 2000. Guarantee claims that Mr. Dirie should pay $4,997.27 for its expenses of the arbitration and the $3,000 assessment fee.
Is Guarantee entitled to recover its arbitration expenses from Mr. Dirie?
Is Guarantee entitled to its assessment fee from Mr. Dirie?
Result:
Guarantee is entitled to recover $3,388.50 for its expenses of the arbitration from Mr. Dirie.
Guarantee is entitled to recover its $3,000 assessment fee from Mr. Dirie.
EVIDENCE AND ANALYSIS:
At the hearing of this matter, Mr. Dirie did not cross-examine Guarantee's witness, and did not provide any evidence to contradict the accident reconstruction expert. His evidence, consisting of his own brief statement that an accident occurred, was devoid of any details about the accident, and completely failed to challenge any element of Guarantee's evidence and position.
This establishes that Mr. Dirie knew he was not entitled to claim accident benefits under the Schedule. I find that he falsely represented that there was an accident and that he was injured, and knowingly pursued his fraudulent claims in arbitration.
Mr. Dirie appeared for the preliminary issue at noon on the hearing day. The hearing notice mailed to him indicates a 10:00 a.m. start time.
On his arrival at the hearing, Mr. Dirie explained that he was present in the building complex earlier that morning, but decided to shop in the mall downstairs. Guarantee had concluded all of its evidence by the time Mr. Dirie appeared, necessitating the repetition of the evidence from the accident reconstruction expert after a lunch break. I find that Mr. Dirie's inexcusable tardiness demonstrates a cavalier disregard for this Tribunal's process and caused a three hour delay in the hearing, a factor I have considered in the award of expenses.2
Mr. Dirie was completely unsuccessful3, his conduct lengthened the proceeding4, his position was manifestly unfounded and he abused this process by filing an arbitration that he knew was fraudulent.5 I have no hesitation in awarding Guarantee its expenses of the arbitration.
I am prepared to accept as reasonable the 15.5 hours at the $67 legal aid rate for Guarantee's legal counsel in this proceeding. However, the claimed $172 for 4 hours of travel time represents a $43 hourly rate that is not compensable under the allowable mileage rate in the Expense Regulation,6 and I do not allow it.
Guarantee presented no evidence to substantiate the $500 photocopy charge. There were minimal productions and Guarantee filed one relatively modest brief. I allow $50 for photocopying.
The $2,200 fee for the report of Guarantee's accident reconstruction expert is subject to a maximum $1,500 under the Expense Regulation.7 I allow Guarantee $1,500 for its expert report.
Guarantee seeks $1,086.33 for attendance fees of its expert witness. The Expense Regulation allows $200 per hour. I allow Guarantee $800 for the 4 hours of hearing time that the witness attended.
I find that Guarantee is entitled to $3,388.50 for its expenses of the arbitration. I further find that Mr. Dirie commenced this arbitration with the knowledge that his claim was fraudulent, and that this constitutes an abuse of process. Guarantee is therefore entitled to recover its $3,000 assessment fee.8
March 17, 2003
Fred Sampliner
Arbitrator
Date
FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 40
FSCO A01-000789
BETWEEN:
MOHAMED DIRIE
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Dirie shall pay Guarantee $3,388.50 for its expenses of the arbitration.
Mr. Dirie shall pay Guarantee $3,000 for its arbitration assessment fee.
March 17, 2003
Fred Sampliner
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.
- Rule 75.2(f) of the Dispute Resolution Practice Code
- Rule 75.2(a) of the Dispute Resolution Practice Code
- Rule 75.2(b) of the Dispute Resolution Practice Code
- Rule 75.2(c) of the Dispute Resolution Practice Code
- Section F - 6(1) and 6(2) of the Dispute Resolution Practice Code
- Section F - 5(5) of the Dispute Resolution Practice Code
- Subsection 282(11.2) of the Insurance Act