Avtar Mangat v. Kingsway General Insurance Company, 2004 ONFSCDRS 36

Neutral Citation: 2004 ONFSCDRS 36 FSCO A03-000263

BETWEEN:

AVTAR MANGAT Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Robert A. Kominar

Heard: December 15, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Mangat Julian Thomas for Kingsway General Insurance Company

Issues:

The Applicant, Avtar Mangat, was injured in a motor vehicle accident on July 5, 2002. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway terminated weekly income replacement benefits on November 1, 2002. The parties were unable to resolve their disputes through mediation, and Mr. Mangat 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. Mangat entitled to receive a weekly income replacement benefit of $400 from November 2, 2002 to May 4, 2003, a weekly benefit minus post-accident income from May 5, 2003 to July 3, 2003, and a weekly benefit of $400 from July 4, 2003 ongoing, pursuant to section 4 of the Schedule?
Is Mr. Mangat entitled to receive a medical benefit for physiotherapy of $2,529 for treatment at Om Sai Physiotherapy Clinic, claimed pursuant to section 14 of the Schedule?
Is Mr. Mangat liable to pay an amount to Kingsway that does not exceed the amount assessed against Kingsway in respect of the arbitration, pursuant to section 282(11.2) of the Insurance Act, because he commenced an arbitration that was frivolous, vexatious or an abuse of process?
Is Kingsway liable to pay Mr. Mangat's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Mangat liable to pay Kingsway's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Mangat entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

RESULTS:

Mr. Mangat is not entitled to receive weekly income replacement benefits.
Mr. Mangat is not entitled to receive a medical benefit for physiotherapy for treatment at Om Sai Physiotherapy Clinic.
Mr. Mangat is not liable to pay Kingsway an amount that does not exceed the amount assessed against Kingsway in respect to this arbitration.
The issue of Kingsway's expenses is deferred for 30 days after the date of this decision to allow the parties to resolve the issue. If that cannot be accomplished an expense hearing may be arranged to have the issue determined.
The issue of Mr. Mangat's expenses is deferred for 30 days after the date of this decision to allow the parties to resolve the issue. If that cannot be accomplished an expense hearing may be arranged to have the issue determined.
Mr. Mangat is not entitled to interest for overdue payments

REPRESENTATION OF MR. MANGAT AT THE ARBITRATION HEARING:

Mr. Mangat was represented by Mr. David Carranza, agent, from the inception of this arbitration proceeding. Mr. Carranza notified the Commission in writing on December 12, 2003 that he was requesting to be removed as representative of record in this arbitration, in accordance with Rule 9.7 of the Dispute Resolution Practice Code, 4th edition (Updated October 2003). Mr. Carranza attached to his request copies of a series of letters he mailed to Mr. Mangat encouraging Mr. Mangat to contact his office so that preparations for the arbitration hearing could be completed. Mr. Carranza advised that these letters went unanswered. He further advised that he had made efforts to telephone Mr. Mangat but found that his phone service had been disconnected. Mr. Carranza further advised that a representative of his office personally attended at Mr. Mangat's last known address and was unable to locate him. Mr. Carranza submitted that he could not continue to represent Mr. Mangat in these circumstances. Mr. Thomas advised that he took no position on Mr. Carranza's request to be removed from the record.

On the basis of the information before me, I find that Mr. Carranza has made reasonable efforts to contact his client and prepare for this arbitration and that he is no longer in communication with Mr. Mangat. Mr. Carranza's request to be removed as the representative of record is granted.

At this point in the proceedings, Mr. Carranza withdrew from participation.

MR. MANGAT'S CLAIMS FOR BENEFITS

I briefly adjourned the hearing at approximately 10:15 a.m. to allow for the possibility that Mr. Mangat would still attend. I also personally attempted to contact Mr. Mangat at the last known telephone number the Commission had on record for him, a number that was confirmed by Mr. Carranza to be the same number he had. The number had been disconnected. At 10:40 a.m. I reconvened the hearing. Mr. Mangat was not in attendance.

I requested submissions from Mr. Thomas on how he wished to proceed. He advised that he was prepared to continue with the arbitration and he requested that Mr. Mangat's Application for Arbitration be dismissed in its entirety and that Kingsway be awarded its expenses in respect of the arbitration as well as recovery of its assessment fee.

In reviewing the file I noted that Mr. Mangat had personally participated in a pre-hearing conference at the Commission with Arbitrator Killoran on July 17, 2003. The dates and location of the arbitration hearing were agreed upon at that time by all parties, including Mr. Mangat. A copy of the pre-hearing letter was mailed to Mr. Mangat at the last known address the Commission had on file for him. In addition, Mr. Mangat was mailed a Notice of Hearing by the Case Administrator on July 23, 2003 and there is no evidence in the file that it was returned to the Commission. Mr. Thomas advised me that Mr. Mangat also executed various authorizations for the release of medical information to Kingsway to comply with production requests as late as November 11, 2003. I accept Mr. Thomas' advice that he has received these authorizations. Based on all of this information I draw the inference that Mr. Mangat was aware that this matter was scheduled to proceed to a hearing on December 15, 2003.

On the basis of the evidence before me I find that Mr. Mangat was aware of the date and place for the arbitration hearing and that he was properly served with a Notice of Hearing. I also find that Mr. Mangat was participating in the preparation for this arbitration as late as November 11, 2003.

No evidence was called on behalf of Mr. Mangat in support of his claims for income replacement benefits or medical benefits. The burden of proof rests with Mr. Mangat to establish his entitlement to these benefits on the balance of probabilities. The burden of proof has not been met and therefore Mr. Mangat's claims for income replacement benefits and medical benefits are dismissed. Mr. Mangat has not established entitlement to any benefits and as a result of this no benefits are overdue. Therefore, Mr. Mangat's claim for interest is dismissed.

RETURN OF INSURER ASSESSMENT

At the time of the pre-hearing the parties added as an issue in dispute the return of Kingsway's assessment in respect to this arbitration. At that time, an arbitrator had jurisdiction pursuant to section 282(11.2) of the Insurance Act to award an amount to an insurer, not exceeding the amount it is assessed by the Commission, if an applicant commences an arbitration that is frivolous, vexatious or an abuse of process. However, section 282(11.2) was amended by S.O. 2002, c. 22, s. 12. There is no longer any jurisdiction for an arbitrator to make the order Kingsway seeks. The claim for a return of the assessment is therefore dismissed.

In the event that I am wrong in my conclusion that there is no longer jurisdiction to award a return of Kingsway's assessment, I make the following finding. Although Mr. Mangat did not appear at the arbitration, that in itself is not sufficient evidence to support an inference that he commenced an arbitration that was frivolous, vexatious or an abuse of process. I have no evidence before me that supports such a conclusion and therefore Kingsway's claim for a return of its assessment is dismissed.

EXPENSES:

An arbitrator may award expenses to a party if satisfied that the award is justified by the criteria set out in Rule 75.2 of the Dispute Resolution Practice Code, 4th edition (Updated October 2003). These criteria are:

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 party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

Mr. Thomas made submissions on expenses and provided a Bill of Costs at the end of the hearing. The Bill of Costs did not itemize the disbursements that Kingsway was seeking to have paid. Also, it has not been provided to Mr. Mangat. Mr. Thomas subsequently sent me an updated Bill of Costs with more detail included. In the circumstances I defer deciding the issue of entitlement to expenses. Due to the implications of a possible expense order made against him, and due to the withdrawal of his representative, I believe that basic fairness minimally requires that Mr. Mangat be provided with an opportunity to make submissions regarding expenses if he so chooses. The parties shall have 30 days after the date of this arbitration decision to resolve the issue of expenses between themselves. If no resolution is reached within that time, either party may contact the Case Administrator to request an expense hearing be scheduled and I will decide the matter.

March 18, 2004

Robert A. Kominar Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 36 FSCO A03-000263

FINANCIAL SERVICES COMMISSION OF ONTARIO