FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2004 ONFSCDRS 46
FSCO A02-001299
BETWEEN:
ADIL AZO
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Joyce Miller
Heard:
March 22, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Azo did not appear
Julian Thomas for Kingsway General Insurance Company
Issues:
The Applicant, Adil Azo, was injured in a motor vehicle accident on January 23, 2002. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.1 Kingsway denied his claim for benefits. The parties were unable to resolve their disputes through mediation, and Mr. Azo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
A pre-hearing was held on January 8, 2003. Mr. Azo did not attend, but was represented by Mr. Alexander Nterekas. Mr. Azo's claim was combined with three other applicants, Mr. Jack Yalda, Mr. Kareem Yalda and Ms. Thikra Youssif, pursuant to Rule 30 of the Dispute Resolution Practice Code. A hearing date was set for October 20, 2003.
On October 9, 2003 a settlement discussion was held. Mr. Azo did not attend this settlement conference which was attended by the three other applicants. At the settlement discussion Mr. Kareem Yalda presented a letter, dated October 7, 2003, from Mr. Azo wherein Mr. Azo stated that he could not attend the settlement discussion, nor could he attend the hearing which was to commence on October 20, 2003, "due to my wife's pregnancy."
On October 9, 2003 the three other applicants settled their cases with Kingsway and Mr. Azo's hearing was adjourned to March 22, 2004.
The issues in this hearing are:
Is Mr. Azo entitled to an income replacement benefit of $400 per week pursuant to section 4 of the Schedule?
Is Mr. Azo entitled to $3,078 for treatment rendered by Correct Care pursuant to section 14 of the Schedule?
Is Mr. Azo entitled to the cost of housekeeping services at the rate of $100 per week pursuant to section 22 of the Schedule?
Is Mr. Azo entitled to $1,766.60 for the cost of in-home and job-site assessments pursuant to section 24 of the Schedule?
Is Mr. Azo entitled to his arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Is Kingsway entitled to its arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Result:
The Application for Arbitration is dismissed.
Mr. Azo shall pay Kingsway $1,727.83 for expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act.
BACKGROUND:
On the day of the scheduled arbitration hearing, March 22, 2004, neither Mr. Azo nor anyone representing him showed up for the proceeding. I waited 30 minutes and then checked with the Case Administrator to see if Mr. Azo had left a message with the Commission regarding his attendance at the hearing. No message of any kind was received.
The Commission file shows that Mr. Azo was sent a Notice of Hearing on February 6, 2004 that his arbitration hearing will be held on March 22, 2004. This notice stated:
You may attend this hearing in person and/or be represented. 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.2
There is no note in the file that Mr. Azo had advised the Commission of any change in his address. Neither was there any indication that the notice sent to him was returned.
Based on the above information, I am satisfied that Mr. Azo was provided with proper notice of the date of the hearing and that he had knowledge that a hearing was to take place commencing March 22, 2004. Accordingly, pursuant to the notice given to Mr. Azo, I proceeded to dispose of the case in his absence.
Mr. Thomas, on behalf of Kingsway, submitted that I should dismiss the arbitration and award Kingsway its expenses in the amount of $1,727.833 for the hearing pursuant to subsection 282(11) of the Insurance Act.
FINDING:
The onus is on Mr. Azo to prove his claim on a balance of probabilities. Mr. Azo has not provided any evidence to support his claim. I therefore conclude that his claim must be dismissed.
EXPENSES:
Subsection 12(2) of Ontario Regulation 6644 provides that an arbitrator may award expenses to an insurer or insured person based on, inter alia, a party's degree of success in the outcome of the proceeding, and conduct that tended to prolong, obstruct or hinder the proceeding, or was an abuse of process.
For the following reasons I find that Kingsway is entitled to its expenses.
Mr. Azo did not attend at his pre-hearing, nor at the settlement discussion. Most importantly, he did not appear at his arbitration hearing. I find that Mr. Azo has effectively abandoned his claim, without notice, or compliance with the Commission's Dispute Resolution Practice Code. I find this to be an abuse of process. Accordingly, I find that Mr. Azo must pay Kingsway's reasonable expenses in this hearing which are fixed in the amount of $1,727.83.
March 31, 2004
Joyce Miller
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 46
FSCO A02-001299
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ADIL AZO
Applicant
and
KINGSWAY GENERAL 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 arbitration is dismissed.
Mr. Azo shall pay Kingsway $1,727.83 for expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act.
March 31, 2004
Joyce Miller
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.
- This notice is in accordance with section 6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and Rule 37 of the Dispute Resolution Practice Code, (4th Edition, May 31, 2001)
- Kingsway provided a Bill of Costs in support of its claim for expenses. Exhibit 1
- R.R.O. 1990, made under the Insurance Act, as amended to O.Reg. 275/03