Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 136

FSCO A04-001859

BETWEEN:

MOHAMED SUDY

Applicant

and

CONTINENTAL CASUALTY COMPANY

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

September 19, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Dimple Verma for Mazin & Rooz

Mr. Sudy did not appear and no one appeared on his behalf

Kiran Sah for Continental Casualty Company

Issues:

The Applicant, Mohamed Sudy, was injured in a motor vehicle accident on August 7, 2003. He applied for statutory accident benefits from Continental Casualty Company ("the Continental"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Sudy 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. Sudy entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
What is the amount of weekly income replacement benefit that Mr. Sudy is entitled to receive pursuant to section 6 of the Schedule?
Is the Continental liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mr. Sudy liable to pay the Continental's expenses with respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is the Continental liable to pay Mr. Sudy's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mr. Sudy entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Sudy is not entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule.
The Continental is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8.
Mr. Sudy is liable to pay the Continental's expenses fixed at $1,000 with respect to the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.
The Continental is not liable to pay Mr. Sudy's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.
Mr. Sudy is entitled to interest as there is no overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

MOTION

On August 29, 2005, Mazin & Rooz filed a Notice of Motion to be removed as solicitors of record for Mr. Sudy. On September 12, 2005, Arbitrator Sampliner expressed his concern that as there had not been personal notice to Mr. Sudy, he was not certain of Mr. Sudy's understanding of the situation. Also, the request was made twelve days before the arbitration hearing. Therefore, Arbitrator Sampliner denied the firm's request for removal. Rather, he deferred the hearing of the motion to the arbitrator conducting the arbitration hearing scheduled to proceed on September 19 and 20, 2005.

On September 19, 2005, Mr. Sudy did not appear at the arbitration hearing. Ms. Verma of Mazin & Rooz appeared to request that the firm be removed as solicitors of record. She informed me that while she had spoken to Mr. Sudy on two occasions, one on the day of the motion hearing and then shortly after, she was unable to obtain any clear instructions from him.

She arranged for a process server to serve Mr. Sudy personally with a Notice of Hearing and a copy of Arbitrator Sampliner's decision of August 29, 2005.

The Continental did not oppose Mazin & Rooz' request to be removed as solicitors of record. I ordered Mazin & Rooz removed as solicitors of record as the firm had complied with Rule 9 of the Dispute Resolution Practice Code, Fourth Edition, Updated — October 2003.

EVIDENCE AND ANALYSIS:

The Continental requested that the arbitration hearing proceed without Mr. Sudy. I adjourned the hearing until 10:30 a.m. to allow time for Mr. Sudy to attend. At that time, I resumed the hearing in Mr. Sudy'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 Continental filed, in evidence, the following documents:

Application for Accident Benefits dated August 18, 2003;
Statement of Mohamed Abdullah Sudy dated March 11, 2004; and
Application for Accident Benefits dated February 19, 2004.

I find that there were discrepancies in the evidence surrounding Mr. Sudy's occupation prior to the accident. In his Application for Accident Benefits dated August 18, 2003, Mr. Sudy stated that he was a cook/helper in a restaurant. He claimed that he worked 40 hours per week and received $10 per hour in wages. In Mr. Sudy's statement of March 11, 2004, he stated that he worked as a window installer. Later in the same statement, he claimed that he cleaned windows prior to the accident. On a number of occasions, the Continental requested an Employer's Confirmation of Income (OCF-2), which was not provided by Mr. Sudy. The Continental claimed that it was impossible to consider Mr. Sudy's eligibility for income replacement benefits due to his refusal to provide basic information.

Mr. Sudy bears the burden of proof in this arbitration proceeding. He is expected to provide evidence in support of his claims in order to establish his entitlement to benefits. As he has presented no evidence to support his claims, he has not discharged the burden of proof. Consequently, his claims for income replacement benefits, a special award and interest owing on unpaid amounts are dismissed.

EXPENSES:

The Continental did not file a bill of costs at the arbitration hearing. However, it sought an order that Mr. Sudy was liable to pay its expenses of the arbitration. I have considered the criteria for awarding expenses listed in the expense regulation, which can be found in section F of the Dispute Resolution Practice Code. I find that the Continental is entitled to its expenses. I fix the Continental's expenses at $1,000 for the arbitration proceedings.

September 23, 2005

Judith Killoran Arbitrator

Date