Neutral Citation: 2004 ONFSCDRS 40
FSCO A03-000787
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
IRAJ RASHIDI
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
February 24, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appeared for Mr. Rashidi
Ian D. Kirby, Barrister and Solicitor, for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Iraj Rashidi, claims that he was injured in a motor vehicle accident on June 24, 2002. Wawanesa Mutual Insurance Company ("Wawanesa") refused to pay for certain benefits under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Rashidi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Mr. Rashidi's Application for Arbitration indicates that his representative is Evan Ismaeli and that Mr. Ismaeli is not a lawyer.
The issues in this hearing are:
Is Mr. Rashidi entitled to costs proposed under a treatment plan prepared by Dr. Roya F. Khomelie pursuant to section 14 of the Schedule?
Is Mr. Rashidi entitled to attendant care expenses of $100 per week from June 27, 2002 to August 15, 2002 pursuant to section 16 of the Schedule?
Is Mr. Rashidi entitled to housekeeping expenses from June 25, 2002 to September 15, 2003 pursuant to section 22 of the Schedule?
Is Mr. Rashidi entitled to cost of a psychological assessment in the amount of $2,175 and an in home assessment in the amount of $880 performed by Rosemount pursuant to section 24 of the Schedule?
Is either party entitled to expenses of the arbitration proceeding?
Results:
The Application for Arbitration is dismissed.
Mr. Rashidi shall pay Wawanesa expenses of the arbitration proceeding in the amount $1,500 inclusive of GST.
The issue of whether Mr. Ismaeli shall personally pay Wawanesa expenses of $342 is deferred.
EVIDENCE AND ANALYSIS:
Neither Mr. Rashidi, or his representative, Mr. Ismaeli, appeared at the hearing, although served with Notice of Hearing. In the absence of any evidence on behalf of Mr. Rashidi, his Application for Arbitration is dismissed.
EXPENSES:
Mr. Kirby asked that I order Mr. Rashidi to pay Wawanesa expenses of $5,000, including the $3,000 assessment fee Wawanesa paid to respond to the Application for Arbitration. Mr. Kirby also asked that I order Mr. Ismaeli pay Wawanesa $342.
The section of the Insurance Act which allowed an arbitrator to award an insurer an amount that did not exceed the assessment fee it paid to respond to the Application for Arbitration was repealed effective October 3, 2003.2 The Expense Regulation3 allows for the award of the filing fees paid by the insured person when aplying for arbitration. It does not refer to the filing fees paid by the insurer. I do not have authority to award the assessment fee to the insurer.
The balance of $2,000 represents expenses for counsel's attendance at the pre-hearing and preparation for and attendance at the hearing, and includes an unspecified amount for a bill Mr. Kirby expects to receive from the occupational therapist he had arranged to attend on the second day of the hearing.
Mr. Kirby also asked for an order that Mr. Ismaeli pay Wawanesa an additional $342 in disbursements. He claimed that Mr. Ismaeli requested this amount from Wawanesa as the cost of documents which Wawanesa requested. He claimed that Wawanesa paid Mr. Ismaeil $342 but never received the documents.
Mr. Rashidi filed his Application for Arbitration on June 3, 2003. Having regard to the criteria set out in the Expense Regulation4 which was in force at that time, particularly taking into account the relatively small amounts involved in this application, I award $1,500 for expenses of the arbitration proceeding, which amount includes the $342 in disbursements and GST.
Effective October 3, 2003, section 282(11.2) was repealed and substituted by the following:
Liability of representative for costs
(11.2) An arbitrator may make an order requiring a person representing an insured person or an insurer for compensation in an arbitration proceeding to personally pay all or part of any expenses awarded against a party if the arbitrator is satisfied that,
(a) in respect of a representative of an insured person, the representative commenced or conducted the proceeding without authority from the insured person or did not advise the insured person that he or she could be liable to pay all or part of the expenses of the proceeding;
(b) in respect of a representative of an insured person, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person; or
(c) the representative caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default. 2002, c. 22, s. 127.
Non-application to solicitors
(11.3) Clause (11.2) (a) does not apply to a barrister or solicitor acting in the usual course of the practice of law. 2002, c. 22, s. 127.
Opportunity to make representations
(11.4) An order under subsection (11.2) shall not be made unless the representative is given a reasonable opportunity to make representations to the arbitrator. 2002, c. 22, s. 127.
Mr. Kirby argued that by virtue of convening this hearing, Mr. Ismaeli has had a reasonable opportunity, within the meaning of section 282(11.4), to make representations on the issue of whether he should pay the $342. In my view, section 282(11.4) requires that the representative have notice that the insurer is seeking expenses against him. Accordingly, I will not deal with this issue at this time. Mr. Ismaeli shall have 30 days from the date of this decision to make written submissions to me on whether I should make an order that he personally pay $342 to Wawanesa. He should provide a copy of his submissions to Mr. Kirby and Mr. Kirby shall have 14 days to make any written reply.
March 23, 2004
William J. Renahan
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 40
FSCO A03-000787
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
IRAJ RASHIDI
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Application for Arbitration is dismissed.
Iraj Rashidi shall pay Wawanesa Mutual Insurance Company $1,500.
The issue of whether Evan Ismaeli shall personally pay any part of the expenses awarded against Mr. Rashidi is deferred. Evan Ismaeli shall have 30 days to make written submissions on the issue and Wawanesa shall have 14 days to make any written reply.
March 23, 2004
William J. Renahan
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.
- S.O. 2002, c. 22, s. 127.
- R.R.O. 1990, Reg 664, as amended.
- R.R.O. 664 as amended to O. Reg. 464/96.