Neutral Citation: 2004 ONFSCDRS 21
FSCO A02-001662
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NGOC ANH THI NGUYEN
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
Beth Allen
Heard:
February 10, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Rita Urbonavicius for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Ngoc Anh Thi Nguyen, was injured in a motor vehicle accident on July 8, 2001. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.1 Royal terminated weekly caregiver benefits on October 14, 2001. The parties were unable to resolve their disputes through mediation, and Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Neither Ms. Nguyen nor her agent, Mr. David Pham, attended at the hearing. Royal brought a motion to dismiss the arbitration.
The issues in this motion are:
Is Royal entitled to the dismissal of Mr. Nguyen's application for arbitration?
Is Royal entitled to arbitration expenses in the amount of $6,000 pursuant to subsection 282(11) of the Insurance Act?
Is Royal entitled pursuant to subsection 282(11.2) of the Insurance Act to the amount of its assessment fee?
Results:
The arbitration hearing is dismissed.
Royal is entitled to arbitration expenses of $3,000.
Royal is entitled to its assessment fee of $3,000.
Procedure:
A Notice of Hearing, dated June 13, 2003, was issued to Ms. Nguyen; her representative, Mr. Pham; Mr. Ross Baker, the representative for Royal; and Ms. Rita Urbonavicius, Royal's legal counsel. 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 ("SPPA").2
Further, Ms. Urbonavicius submitted that she made many attempts to contact Mr. Pham before the hearing, in writing and by telephone, but to no avail. She sent letters by ordinary mail and facsimile transmission to Mr. Pham requesting satisfaction of production requests. Mr. Pham did not reply to any of these. Attempts were made to leave telephone messages for Mr. Pham only to find that his voice mailbox was full. Ms. Urbonavicius also enlisted the services of Federal Express who made attempts during regular working hours on January 8, 9 and 12, 2004 to deliver to Mr. Pham's office at 1701 St. Clair Avenue West in Toronto, Royal's document and medical briefs for the hearing. Federal Express found no one was present at Mr. Pham's office.
On January 15, 2004, one of Mr. Pham's assistants named "Helen" attended at Ms. Urbonavicius's office to pick up a settlement cheque on another matter. Ms. Urbonavicius's assistant, Ms. Karen Sandford, succeeded in serving this person with Royal's arbitration briefs in Ms. Nguyen's matter. On January 22, 2004, Mr. Urbonavicius attempted to fax Mr. Pham a "without prejudice" offer to settle but the transmission notice came back indicating that the transmission had failed.
Neither the Applicant nor her representative were present at the commencement time for the hearing. I allowed 20 minutes to await their arrival, but neither came to the hearing. I decided, pursuant to subsection 7(1) of the SPPA, to conduct the hearing in the absence of Ms. Nguyen and her representative.
EVIDENCE AND ANALYSIS:
Background
Ms. Nguyen filed an Application for Arbitration dated October 16, 2002 on which Mr. Pham is noted as her representative. Ms. Nguyen claims the following benefits under the Schedule: caregiver benefits under section 13; housekeeping and home maintenance benefits under section 22; and her arbitration expenses under subsection 282(11) of the Insurance Act.
Royal submits that the Applicant has failed to provide evidence to substantiate her accident benefits claims and her claim for arbitration expenses, and therefore, has not discharged her burden to prove her case. Royal claims its expenses in accordance with the criteria set out in Rule 75 of the Dispute Resolution Practice Code3 (the "Code") and the amount of its $3,000 assessment fee pursuant to subsection 282(11.2) of the Insurance Act on the basis that the Applicant commenced an arbitration proceeding that is frivolous, vexatious and an abuse of process.
Despite Ms. Urbonavicius's many requests for document productions pertaining to Ms. Nguyen's claims, Ms. Nguyen produced only a decoded OHIP summary, and the clinical notes and records of Dr. Robert Chow, Dr. Tuvet Vo and Dr. Nhan Tong, and according to Ms. Urbonavicius, incomplete clinical notes and records from Dr. Lorne Sokol. Neither Ms. Nguyen nor any witnesses on her behalf attended the hearing to give viva voce in support of her claims. I therefore, agree with Royal's position and find that the Applicant has failed to satisfy her burden to prove her case and cannot succeed in the arbitration.
I therefore dismiss the arbitration.
Expenses:
Royal requests its legal fees under subsection 282(11) of the Insurance Act in the amount of $6,000 for ten hours, covering the pre-hearing and resumption of the pre-hearing discussions and the arbitration hearing; and the time spent in preparing many pieces of correspondence to Mr. Pham in relation to production requests and the service of Royal's productions. Royal also requests that I take into account the fact that Royal attempted to make two offers to settle the issues in dispute - one at the pre-hearing discussion and the other through a failed attempt to fax an offer to Mr. Pham
Regarding Royal's claim to expenses under subsection 282(11) of the Insurance Act, Rule 75 of the Code sets out the criteria an arbitrator may consider when determining whether an award of expenses to a party is justified. Among these factors are: each party’s degree of success in the outcome of the proceeding; the conduct of the insurer or the insured person that tended to shorten or prolong the proceeding; whether the proceeding or a position taken by the insurer or insured person during the proceeding was manifestly unfounded, frivolous, vexatious or an abuse of process; whether at the request of either party any written offer to settle was made in accordance with Rules 76 and 77; and any other matter related to the proceeding that the arbitrator considers relevant to whether an award of expenses is justified.
Based on the criteria set out in Rule 75 of the Code, Royal is clearly entitled to its arbitration expenses. Neither Ms. Nguyen nor Mr. Pham attended the hearing or provided evidence to support Ms. Nguyen's claims and consequently did not succeed at arbitration. They did not advise Royal or the Commission in advance that they wished to abandon the proceeding which resulted in time being spent in attending and conducting the hearing in the Applicant's and her representative's absence.
I find Ms. Nguyen's and Mr. Pham's conduct resulted in a clear abuse of the Commission's arbitration process.
I therefore find Royal is entitled under subsection 282(11) of the Insurance Act to its expenses in the fixed amount of $3,000.
Royal is also entitled to its assessment fee in the amount of $3,000. From the start of the arbitration process, Ms. Nguyen failed to provide basic documentation in support of her claims in satisfaction of her obligations under the Code, despite the Royal's many requests for the same. Furthermore, Ms. Urbonavicius pointed out in the documentation filed, and I accept, that Ms. Nguyen made claims for housekeeping benefits during times when she reported she was not in Canada. I have no evidence from the Applicant that refutes this, and I find this is an abuse of the arbitration process. I therefore, find that Ms. Nguyen commenced an arbitration which was an abuse of the Commission's process within the intention of subsection 282(11.2) of the Insurance Act.
February 17, 2004.
Beth Allen
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 21
FSCO A02-001662
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NGOC ANH THI NGUYEN
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
I order the arbitration to be dismissed.
Ms. Nguyen shall pay Royal's arbitration expenses in the amount of $3,000 pursuant to subsection 282(11) of the Insurance Act.
Ms. Nguyen shall pay Royal its assessment fee in the amount of $3,000 pursuant to subsection 282(11.2) of the Insurance Act.
February 17, 2004.
Beth Allen
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.
- Subsection 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.- S.22 states: "Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and party is not entitled to any further notice in the proceeding.
- (4th Edition, May 31, 2001).