Neutral Citation: 2004 ONFSCDRS 129

FSCO A03-001354

BETWEEN:

AZRA LAKHWINDER

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Beth Allen

Heard:

August 25, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one for Mrs. Lakhwinder

Deborah Corcoran for Kingsway General Insurance Company

The Applicant, Azra Lakhwinder, was injured in a motor vehicle accident on April 23, 2002. She applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway has paid no accident benefits to date. The parties were unable to resolve their disputes through mediation, and Mrs. Lakhwinder 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 the Applicant entitled to caregiver benefits pursuant to section 13 of the Schedule at the rate of $350 per week?
Is the Applicant entitled to medical benefits pursuant to section 14 of the Schedule for the cost of physiotherapy treatment by Metro Rehabilitation Centre at $3,132.11 and transportation by Med Care at $961.93?
Is the Applicant entitled to housekeeping and home maintenance benefits at the rate of $100 per week pursuant to section 22 of the Schedule?
Is the Applicant entitled to the cost of in-home and work site assessments by Vocan Health Assessors pursuant to section 24 of the Schedule?
Is the Applicant entitled to her arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Is Kingsway entitled to it arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Is the Applicant entitled to interest on any overdue amounts pursuant to subsection 46(2) of the Schedule?

The arbitration is dismissed.
Kingsway is entitled to its arbitration expenses fixed at $500.00 inclusive of G.S.T.

Background:

The Applicant filed an Application for Arbitration dated September 16, 2003 in which she claims the following benefits under the Schedule: caregiver benefits under section 13; treatment and transportation benefits under section 14; housekeeping benefits under section 22; and the cost of in-home and work site assessments under section 24. She also seeks her arbitration expenses under subsection 282(11) of the Insurance Act.

In its Response by Insurer to an Application for Arbitration, Kingsway raises the following defences.

Pursuant to subsection 33(2) of the Schedule, Kingsway asserted that the Applicant is not entitled to benefits because she failed to provide Kingsway the information reasonably required to determine her entitlement to benefits.

Kingsway also asserted that, pursuant to subsection 59(3) of the Schedule, it is not required to pay the Applicant accident benefits because she failed to comply with the requirement to provide Kingsway with the prescribed election form, electing whether she will seek workers' compensation benefits under the Ontario Workplace Safety and Insurance Act, 1997 before the Workplace Safety and Insurance Board (the "WSIB") or proceed with a personal injury action in the civil courts.

Kingsway also seeks its arbitration expenses pursuant to subsection 282(11) of the Insurance Act.

Several pre-hearing discussions were scheduled. According to the pre-hearing discussion report dated July 22, 2004, and the Notices of Pre-hearing Discussion and Resumption of Pre-hearing Discussion on file with the Commission, pre-hearing discussions were held on February 18, April 23, June 11, July 9 and July 22, 2004. The pre-hearing report indicates that the Applicant only participated by telephone at the July 9, 2004 resumption of pre-hearing discussion.

At each pre-hearing discussion, Kingsway raised the issue that the Applicant had failed to provide the WSIB Third Party Election Form, F 37, confirming her decision to bring an action in respect of her injuries in the accident. During the July 9, 2004 pre-hearing resumption, the Applicant indicated that she was awaiting correspondence from the WSIB office and undertook to meet with her representative, Mr. Justin Mariani, to obtain advice on how to proceed.

In correspondence dated July 22, 2004, addressed to the Applicant and copied to the Commission and Kingsway, Mr. Mariani indicated that he would no longer be representing the Applicant with respect to her accident benefit claims because she failed to provide relevant documentation and failed to attend appointments scheduled by Mr. Mariani's office. In his pre-hearing report dated July 22, 2004, addressed to the Applicant and Kingsway's counsel and copied to Kingsway and Mr. Mariani, the pre-hearing arbitrator made an order under Rule 9.7 of the Dispute Resolution Practice Code ("the Code")² permitting Mr. Mariani to withdraw from the record.

The Arbitration Hearing:

The Applicant’s Non-Attendance

The arbitration hearing was scheduled to proceed on August 25, 2004 at 10:00 a.m. at the offices of the Commission. At 10:00 a.m., Kingsway's representative, Ms. Maggie Avila, and Kingsway's counsel, Ms. Deborah Corcoran, were in attendance, but the Applicant did not attend. Ms. Corcoran advised that she had spoken to the Applicant following the July 22, 2004 pre-hearing resumption to determine the Applicant's intentions and, according to Ms. Corcoran, the Applicant indicated that she intended to attend the hearing with her husband. I called a half hour recess to allow the Applicant an opportunity to arrive.

In the meantime, Kingsway's counsel called the Applicant at her home and spoke to the Applicant who indicated that she would not be attending the hearing because she thought her representative, Mr. Mariani, would be attending. Ms. Corcoran stated that when she spoke to the Applicant following the July 22, 2004 pre-hearing resumption, she explained to the Applicant what had occurred at the pre-hearing resumption and that her representative, Mr. Mariani, would no longer be representing her.

I requested that a FSCO case administrator also contact the Applicant to determine whether she was intending to attend the hearing. The case administrator spoke to the Applicant who informed her that she would not be attending the hearing because she was very ill. According to the case administrator, the Applicant indicated that she had informed no one of her intention not to appear at the hearing.

A Notice of Hearing, dated July 23, 2004, had been issued to the Applicant, Mr. Mariani, the Kingsway representative, Kelly Barbosa, and Kingsway's counsel, Ms. Corcoran. The Notice was sent to the Applicant's last known address in Mississauga. The Notice advises the parties of the date, time and venue for the arbitration hearing and alerts the parties "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", which warning is based on wording in subsection 7(1) of the Statutory Powers Procedure Act.³

I am satisfied that the Applicant received adequate notice of the arbitration hearing.

I accept that the telephone calls to the Applicant from both Ms. Corcoran and the case administrator indicate that the Applicant received the Notice of Hearing, but decided not to attend and not to advise the Commission or Kingsway of her intention not to appear. She did not deny knowing about the hearing. I do not accept the Applicant's stated reasons for not attending. She seems to have given contradictory reasons to Ms. Corcoran and the case administrator. I find it would not be reasonable for the Applicant to believe that Mr. Mariani would attend on her behalf when Mr. Mariani and the Commission had advised her in writing that he had withdrawn from the record. I have no evidence that she had not received the correspondence from Mr. Mariani and the Commission. Furthermore, if the Applicant was too ill to attend, she should have called the Commission and requested an adjournment, which request could have been considered by the Arbitrator.

I find that the Applicant failed to provide a reasonable explanation for her failure to attend the hearing. I decided therefore to proceed with the hearing.

The Applicant's Case

The Applicant produced no documentation to support her claims for caregiver, treatment, transportation, housekeeping, the cost of assessments or her entitlement to arbitration expenses. Nor did she attend the hearing or call viva voce evidence to advance her case.

Kingsway's Submissions

Kingsway's counsel made alternative submissions at the hearing. She requested that I dismiss the Applicant's claims with costs on the basis that she failed to prove her case.

In the alternative, Kingsway's counsel argued that the provisions under section 59 of the Schedule which deal with the interplay between WSIB benefit entitlement and benefit entitlement under the Schedule, supports Kingsway's position that the Applicant is not entitled to benefits under the Schedule. Kingsway submits that the two-year limitation period for bringing a civil action with respect to the Applicant's April 23, 2002 accident expired on April 23, 2004. Under these circumstances, according to Kingsway, any election by the Applicant to pursue a civil action would be made primarily for the purpose of claiming benefits under this Regulation, rendering the Applicant ineligible to claim accident benefits under the Schedule, pursuant to subsection 59(2) of the Schedule.

Reasons for Decision:

I have decided to determine the case based on whether the Applicant met her obligation to prove her case. I considered the following in arriving at my decision.

Kingsway and the Applicant's previous representative, Mr. Mariani, made several attempts to obtain pertinent documentation from the Applicant in preparation for the arbitration hearing. Five pre-hearing discussions were held to deal with the production issue. At one pre-hearing resumption, the Applicant undertook to seek advice from her representative as to how to proceed and indicated that she was attempting to obtain the WSIB documentation. She failed to satisfy both of these undertakings. As a result, the Applicant failed to produce any evidence to establish her entitlement to accident benefits.

On the basis that the Applicant presented no documentary or viva voce evidence at the hearing to support her accident benefit claims, I dismiss the arbitration. I find under the circumstances that I need not consider Kingsway's alternative submissions.

EXPENSES:

The parties claim arbitration expenses under subsection 282(11) of the Insurance Act which gives arbitrators the discretion to award expenses to parties to an arbitration hearing. Regulation 664 of the Insurance Act, the terms of which are replicated in Rule 75 of the Code, sets out the criteria to be considered on an award of expenses.

Rule 75 of the Code requires that the arbitrator take into account: (a) each party's degree of success in the outcome of the proceeding; (b) any written offers to settle made in accordance with Rule 76; (c) whether novel issues are raised in the proceeding; (d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders; and (e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

The Applicant provided no particulars of her claim for arbitration expenses and on this basis I deny her claim. Furthermore, I also deny her expense claim on the basis of her lack of success at the hearing under criterion (a), her conduct in failing to meet undertakings and her failure to attend pre-hearings discussions and the hearing under criterion (d).

Kingsway claims $1,500 of its arbitration expenses. I find that Kingsway is entitled to a portion of its expenses. In arriving at this decision, I considered under criterion (a) that Kingsway succeeded in the outcome of the hearing. I also took into account criterion (d) with respect to the Applicant's conduct in failing to attend four pre-hearing discussions which delayed the arbitration process and obstructed attempts to obtain productions pertinent to the issues in dispute. There were also needless delay and expense as a result the Applicant's non-attendance at the hearing, which could have been avoided if the Applicant had advised the Commission in advance of her intention not to attend. Under criterion (d), I also took into account the Applicant's failure to comply with her production undertakings, particularly, but not limited to, her undertaking to produce the WSIB election form which was essential to future steps in the process.

Kingsway's counsel submitted a Bill of Costs claiming total arbitration expenses of $5,700.00 involving: legal fees of $2,700.00 and disbursements of $3,000.00.

Ms. Corcoran claims $1,500.00 of the total amount. Her account claims legal expenses for preparation of Kingsway's Response by Insurer to an Applicant for Arbitration, and for preparation for the five pre-hearing discussions. The account contains no breakdown as to hours, hourly rate charged, or as to whether other personnel from her firm were involved with the file. Similarly, the disbursement account contains only the total figure and no breakdown of the disbursement items being billed. There is also no indication of whether G.S.T. is being charged. For this reason, I find it difficult to determine whether $1,500.00 of the account is reasonable.

In the circumstances, I order the Applicant to pay Kingsway its expenses pursuant to subsection 282(11) of the Insurance Act fixed at $500 inclusive of G.S.T.

September 1, 2004

Beth Allen Arbitrator

Date