The Estate of Thanh Thi Tran v. Economical Mutual Insurance Company, 2004 ONFSCDRS 115

Neutral Citation: 2004 ONFSCDRS 115

FSCO A03-001252

BETWEEN:

THE ESTATE OF THANH THI TRAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: June 14, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one for Ms. Thanh Thi Tran's estate Nicholas de Koning for Economical Mutual Insurance Company

Issues:

The Applicant, Thanh Thi Tran, was injured in a motor vehicle accident on May 9, 2002. Economical Mutual Insurance Company ("Economical") denied Ms. Tran's claims for statutory accident benefits under the Schedule¹, and the parties were unable to resolve their disputes through mediation. Ms. Tran died subsequent to filing her application for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, and no one appeared on her estate's behalf at the arbitration hearing.

The issues in this hearing are:

Is Ms. Tran's estate entitled to caregiver benefits under Part IV of the Schedule, housekeeping expenses under section 22 of the Schedule, a special award under subsection 282(10) of the Insurance Act, and her estate's expenses of the arbitration under subsection 282(11) of the Insurance Act?
Is Economical entitled to repayment of benefits under section 47 of the Schedule, and its expenses of the arbitration under subsection 282(11) of the Insurance Act?

Result:

Ms. Tran's estate is not entitled to caregiver benefits under Part IV of the Schedule, housekeeping expenses under section 22 of the Schedule, a special award under subsection 282(10) of the Insurance Act, and her estate's expenses of the arbitration under subsection 282(11) of the Insurance Act.
Economical is not entitled to repayment of benefits under section 47 of the Schedule, and its expenses of the arbitration under subsection 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

No one appeared on behalf of Ms. Tran's estate to present evidence or argue her case at the hearing. The agent who initiated Ms. Tran's application resigned during the pre-hearing process and a lawyer consulting with Ms. Tran's spouse during the pre-hearing process did not take carriage of the matter. Her estate has not been represented since March 1, 2004.

The hearing notice mailed to the home address that Ms. Tran listed in her application was returned by the post office marked "moved/unknown." I find that Ms. Tran's estate failed to inform FSCO of a forwarding address, and that FSCO's attempts to notify her estate of the hearing are sufficient.

Ms. Tran's estate failed to meet its burden to establish her entitlement to any of the benefits she claimed. Consequently, I find that her estate is not entitled to caregiver benefits, housekeeping expenses, a special award or her expenses of this arbitration. Economical did not make any submissions or present evidence in support of its repayment claim or expenses of the arbitration, and I find it is not entitled to either claim.

August 11, 2004

Fred Sampliner Arbitrator

Date