Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 134
FSCO A04-001113
BETWEEN:
SE MENG DUONG
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Judith Killoran
Heard: September 12, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Duong did not appear and no one appeared on his behalf Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Se Meng Duong, was injured in a motor vehicle accident on September 7, 2000. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Duong 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. Duong entitled to receive a weekly income replacement benefit from July 21, 2001 to April 2, 2002, claimed pursuant to section 4 of the Schedule?
Is Mr. Duong entitled to payment of $1,413 for acupuncture treatment provided by Dr. Sokol and associated costs, for the period September 2000 to February 2001, claimed as a medical benefit pursuant to section 14 of the Schedule?
Is Mr. Duong entitled to payment of Dr. T. Chen's August 20, 2003 report in the amount of $750, claimed pursuant to section 24 of the Schedule?
Is State Farm liable to pay Mr. Duong's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mr. Duong liable to pay State Farm's expenses with respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mr. Duong entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Result:
Mr. Duong is not entitled to receive a weekly income replacement benefit from July 21, 2001 to April 2, 2002, claimed pursuant to section 4 of the Schedule.
Mr. Duong is not entitled to payment of $1,413 for acupuncture treatment provided by Dr. Sokol and associated costs, for the period September 2000 to February 2001, claimed as a medical benefit pursuant to section 14 of the Schedule.
Mr. Duong is not entitled to payment of Dr. T. Chen's August 20, 2003 report in the amount of $750, claimed pursuant to section 24 of the Schedule.
State Farm is not liable to pay Mr. Duong's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.
Mr. Duong is liable to pay State Farm's expenses in the amount of $2,500 with respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.
Mr. Duong is not entitled to interest as there is no overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
EVIDENCE AND ANALYSIS:
On August 31, 2005, Arbitrator Blackman ruled on Mr. Carranza's request to be removed from the record as Mr. Duong's representative in this proceeding. Arbitrator Blackman documented a long history by Mr. Duong of non-participation in the dispute resolution process. Mr. Duong was served with the Notice of Pre-Hearing Discussion dated July 5, 2004 but did not attend the November 3, 2004 pre-hearing discussion. In the subsequent nine months, he did not contact the Commission and explain his failure to attend. Further, his representative was unsuccessful in contacting him at his last known addresses and telephone numbers. As a result, Mr. Duong did not sign authorizations to comply with undertakings given at the pre-hearing discussion. The representative's ability to represent Mr. Duong was so severely compromised that Arbitrator Blackman ruled that he should be removed as the solicitor of record. He attached certain conditions to his removal.
Arbitrator Blackman fixed State Farm's costs at $150 with regard to Mr. Duong's non-attendance at the November 3, 2004 pre-hearing, payable in any event of the cause. Arbitrator Blackman also ordered that the arbitration hearing proceed on Monday, September 12, Tuesday, September 13, and Wednesday, September 14, 2005 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario. He noted that if Mr. Duong failed to attend, the hearing arbitrator might dispose of the case in his absence. The Commission sent copies of Arbitrator Blackman's decision to Mr. Duong at his two previous addresses.
Mr. Duong did not attend the arbitration hearing at 10:00 a.m. on Monday, September 12, 2005. No one appeared on his behalf. State Farm requested that the arbitration proceed in the absence of Mr. Duong. I adjourned the hearing until 10:30 a.m. to allow time for Mr. Duong to attend. At that time, I resumed the hearing in Mr. Duong's absence.
Rule 37.7 of the Dispute Resolution Practice Code provides as follows:
Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.
The burden of proof in this arbitration proceeding lies with Mr. Duong. In order to establish his entitlement to benefits, he must provide evidence supporting his claims. He presented no evidence and has failed to meet the burden of proof. Consequently, his claims for income replacement benefits, medical benefits, the cost of examinations and interest on overdue payments are dismissed.
EXPENSES:
State Farm filed its Bill of Costs for the arbitration hearing. State Farm sought an order that Mr. Duong was liable to pay $5,255.34, inclusive of fees, disbursements and GST, in addition to the $150 in expenses awarded by Arbitrator Blackman.
I have considered the criteria in the expense regulation, which can be found in section F of the Dispute Resolution Practice Code. The criteria are:
Each party’s degree of success in the outcome of the proceeding.
Any written offers to settle that were made in accordance with the rules of practice and procedure applicable to the proceeding after the conclusion of mediation and before the conclusion of the hearing.
Whether novel issues are raised in the proceeding.
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.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.
I find that Mr. Duong was unsuccessful in all of his claims. I was not advised of any written offers to settle. It appears that there were no novel issues raised in the proceeding. An important consideration is that Mr. Duong’s conduct did prolong the proceeding. While I was presented with no evidence that any aspect of this proceeding was improper or vexatious; that is, designed to harass the insurer, it appears that some aspects of the proceeding were unnecessary due to Mr. Duong’s conduct. I find that State Farm is entitled to its reasonable expenses in this arbitration.
I have reviewed State Farm's Bill of Costs which totals $5,255.34, inclusive of disbursements and GST. I have reduced the amount of expenses to reflect the extremely short hearing and the lack of reimbursement for discretionary expenses, such as a court reporter. I fix expenses at $2500, inclusive of disbursements and GST, in addition to the $150 in expenses awarded to State Farm by Arbitrator Blackman.
September 23, 2005
Judith Killoran Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 134
FSCO A04-001113
BETWEEN:
SE MENG DUONG
Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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:
Mr. Duong's claims in this arbitration are dismissed.
Mr. Duong is liable to pay State Farm's expenses of the arbitration in the amount of $2,500, inclusive of disbursements and GST.
September 23, 2005
Judith Killoran Arbitrator
Date