Neutral Citation: 2003 ONFSCDRS 49

FSCO A02-000610

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GORDON COLEMAN

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

February 11, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one appeared for Mr. Coleman

Rita Urbonavicius for Certas Direct Insurance Company

Issues:

The Applicant, Gordon Coleman, was injured in a motor vehicle accident on September 3, 1999. He applied for and received statutory accident benefits from Certas Direct Insurance Company ("Certas"), payable under the Schedule.¹ Disputes developed between the parties which they were unable to resolve through mediation, and Mr. Coleman 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 are:

Is Mr. Coleman entitled to attendant care benefits pursuant to section 39 of the Schedule from February 9, 2000 to May 30, 2000?
Is Certas entitled to pre-hearing and hearing expenses?

Result:

Mr. Coleman is not entitled to attendant care benefits pursuant to section 39 of the Schedule from February 9, 2000 to May 30, 2000.
Certas is entitled to pre-hearing and hearing expenses in the amount of $1,000.

Reasons:

Mr. Coleman's Application for Arbitration was signed by both himself and his representative, Ms. Milva Prestia of Accident Injury Claims Ltd. The pre-hearing was scheduled to proceed at 10:00 a.m. on September 23, 2002 but at 9:42 a.m. that day, the Commission received a faxed letter from Mr. Raymond Umanzor of Accident Injury Claims Ltd. stating that Ms. Prestia was "unable to attend due to medical illness." Mr. Coleman was also absent at the pre-hearing. Ms. Cara Lee Phillips and Ms. Rita Urbonavicius attended on behalf of Certas.

Undeterred by the absence of Mr. Coleman and his representative, the pre-hearing Arbitrator telephoned Mr. Umanzor. The pre-hearing letter dated September 26, 2002 stated that as a result of this telephone call "all agreed that it was expeditious to set the hearing dates for April 2003 and resume face-to-face discussions on November 22, 2002." Accordingly, on September 24, 2002, the Commission sent the parties Notice of Hearing for April 14, 15 and 16, 2003 and Notice of Resumption of Pre-hearing for November 22, 2002.

By letter dated October 17, 2002 to the Commission, Ms. Prestia stated: "our office is no longer representing Mr. Gordon Coleman." Ms. Prestia's letter also stated: "Mr. Coleman has been informed of the newly scheduled times and dates for the pre-hearing and the arbitration." By letter dated November 4, 2002 to Mr. Coleman, with a copy to the Commission, Mr. Umanzor confirmed his firm's request to be removed as Mr. Coleman's representative.

No one appeared for Mr. Coleman at the resumption of the pre-hearing on November 22, 2002. Ms. Cara Lee Phillips and Ms. Rita Urbonavicius again attended on behalf of Certas. The pre-hearing Arbitrator removed Accident Injury Claims Ltd. as Mr. Coleman's representative and, as requested by Certas, changed the hearing date from April 14, 15 and 16, 2003 to February 11, 2003. The Arbitrator's letter dated November 22, 2002 confirmed these changes and also stated: "Where notice of hearing has been sent to a party and a party does not attend, the arbitrator may proceed with the hearing in the party's absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding." This letter was sent to Mr. Coleman at the two addresses for him contained in the Commission's file. The Notice of Rescheduled Hearing was sent to Mr. Coleman at the last address known to the Commission: 10 Lento Court, Woodbridge, ON L4L 8Y9.

No one appeared for Mr. Coleman at the hearing on February 11, 2003. Ms. Cara Lee Phillips and Ms. Rita Urbonavicius again appeared on behalf of Certas. After noting that the Arbitrator's letter of November 22, 2002 and the Notice of Rescheduled Hearing had both been sent to Mr. Coleman at the last address for him known to the Commission and after waiting for more than 30 minutes for Mr. Coleman to appear, I dismissed his claim for attendant care benefits from February 9, 2000 to May 30, 2000. In reaching this decision, I referred to and relied upon Rule 9.1(b) of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) which states: "The Dispute Resolution Group is entitled to rely upon the last known address . . . contained in its records."

While Certas did not press its claim for expenses, it was clearly entitled to expenses. Based on Ms. Prestia's letter dated October 17, 2002, I find that Mr. Coleman was aware of the November 22, 2002 pre-hearing date. Moreover, in the absence of any supporting evidence at the hearing on February 11, 2003, I find that Mr. Coleman's claim was "manifestly unfounded" within the meaning of the Expense Regulation.² Accordingly, I fix Certas' pre-hearing and hearing expenses at $1,000.

March 31, 2003

David Leitch Arbitrator

Date