Neutral Citation: 2005 ONFSCDRS 185 FSCO A03-000598

BETWEEN:

SHUN GUAN ZHUO Applicant

and

PEMBRIDGE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Anne Sone Heard: June 2, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Michael S. Brown for Mr. Zhuo John D. Dean for Pembridge Insurance Company

Issues:

The Applicant, Shun Guan Zhuo, was injured in a motor vehicle accident on May 8, 2001. He applied for statutory accident benefits from Pembridge Insurance Company ("Pembridge"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Zhuo 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. Zhuo entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
What is the amount of weekly income replacement that Mr. Zhuo is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Zhuo entitled to receive a medical benefit for massage, physiotherapy and transportation expenses claimed pursuant to section 14 of the Schedule?
Is Mr. Zhuo entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Allstate liable to pay Mr. Zhuo's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Zhuo liable to pay Allstate's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Zhuo entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Zhuo is not entitled to receive a weekly income replacement benefit.
Mr. Zhuo is not entitled to receive a medical benefit for massage, physiotherapy or transportation expenses.
Mr. Zhuo is not entitled to payments for housekeeping and home maintenance services.
If the parties cannot agree on expenses, pursuant to Rule 79 of the Dispute Resolution Practice Code, either party may request, in writing, an appointment before me to determine expenses provided that the request is made within 30 days from the date the decision on all other issues in dispute was issued.

EVIDENCE AND ANALYSIS:

Background:

A hearing in this matter was scheduled for July 5, 2004 at 10:00 a.m. at the Financial Services Commission of Ontario. The Applicant, Mr. Shun Guan Zhuo, was unrepresented and did not attend. He later alleged that he had been unaware of the date.

At a pre-hearing held at the Financial Services Commission on September 17, 2003, Mr. Guy Farrell represented Mr. Zhuo. Arbitrator Allen scheduled the hearing in this case for January 12, 13, 14 and 15, 2004 at the Commission. On January 12, 2004, Arbitrator Leitch accepted Mr. Farrell's request to get off the record. By letter dated January 30, 2004, Arbitrator Leitch wrote to Mr. Zhuo to confirm that "Mr. Farrell no longer acts for the Applicant." He also stated as follows:

...the Pre-hearing will resume on Tuesday, February 17, 2004 at 10:00 a.m. at the Commission's offices and that Mr. Zhuo and his new representative will attend at that time and place.

Arbitrator Allen presided at the resumption of pre-hearing held at the Commission on February 17, 2004. She noted in a pre-hearing letter dated February 17, 2004 that Mr. Zhuo attended unrepresented. Ms. Agnes Choi of All Languages Ltd. was retained by the Commission to translate the proceeding for Mr. Zhuo. Arbitrator Allen states that Mr. Zhuo indicated that he wished to have the opportunity to retain new counsel to represent him at the arbitration hearing and at any settlement talks directed at resolving the issues in his case. She also notes that she has scheduled new dates "for an arbitration hearing on July 5, 6, 7 and 8, 2004. A Mandarin interpreter will be ordered." My quotation from her letter reflects that she placed the new date in bold letters. She also placed in bold type the following:

I advised Mr. Zhuo:

to take the Notice of Hearing containing the new hearing dates to his new counsel

to promptly inform both the Commission case administrator, Ms. Michaela Lempp at ... and Wawanesa's counsel, Mr. Dean at ... regarding the name and contact information for his new lawyer.

On February 18, 2004, the case administrator sent a Notice of Re-Scheduled Hearing to Mr. Zhuo confirming that the arbitration will be held on July 5, 6, 7 and 8, 2004 commencing at 10:00 a.m. at the offices of the Financial Services Commission of Ontario. This Notice specifically stated that the hearing will determine all the issues between the parties under the Schedule. It also stated that:

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.

On July 5, 2004, at 10:00 a.m., (as set out in the initial Notice of Hearing), I commenced the hearing. In attendance were Mr. Dean, legal counsel representing Pembridge, and Mr. Phil Langford on behalf of Pembridge. As the Applicant was not present, nor anyone on his behalf, I held the matter down to 10:30 a.m. to give the Applicant a chance to attend. At 10:30 a.m., the hearing proceeded without Mr. Zhuo. Pembridge filed in evidence the following documents:

Invoices dated April 11, 2002 from Dundas Euclid Physiotherapy and Rehabilitation Services;
Insurer Examination Report of Dr. Paul Robert, orthopaedic surgeon, dated July 13, 2001;
Explanation of Benefits Payable (regarding Mr. Zhuo's housekeeping claim) dated January 14, 2002;
Application for Accident Benefits dated June 6, 2001;
Letter dated November 18, 2001 from Mr. Zhuo's employer, Dynasty Chinese Cuisine; and
Explanation of Benefits Payable (regarding Mr. Zhuo's claim for ambulance and transportation expenses) dated September 12, 2001.

In his Application for Accident Benefits referred to above, Mr. Zhuo alleges that a car made a left turn without a signal and struck the rear wheel of his bicycle, causing him to fall off the bike. In the course of his Insurer's Examination he told Dr. Robert that, as a result, he sustained pain on the right side of his hip. According to this report, he told Dr. Robert that he was employed with a restaurant doing kitchen help at the time of the accident.

Pembridge made submissions asking me to dismiss Mr. Zhuo's claims for accident benefits.

Reopening of Applicant's Case:

Prior to issuing my decision in this case, the Commission received a handwritten note from Mr. Zhuo on July 19, 2004. It stated as follows:

Dear Mr. Arbitrator:

Sorry for that I didn't attend the arbitration hearing because I wasn't aware of the date. Would you kindly make a new date of an arbitration. Thank you!

Sincerely

Shun Guan Zhuo

Pursuant to Rule 43.1 of the Dispute Resolution Practice Code (Fourth Edition, updated October 2003), an arbitrator may reopen a hearing at any time before he or she makes a final order disposing of the arbitration. Based on this Rule, I wrote to the parties and advised them that I was prepared to reopen the case for the purpose of hearing submissions as to whether Mr. Zhuo received adequate notice of the hearing date. The date of June 2, 2005 was selected for these submissions, commencing at 2:00 p.m. at the Financial Services Commission of Ontario. The case administrator set out a Notice of Hearing dated April 1, 2005. The Notice again stated as follows:

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.

On June 2, 2005, at 2:00 p.m. Mr. Zhuo did not attend for a second time. However, this time his representative, Mr. Michael S. Brown, attended. He did not have an explanation as to why his client was not there.

Mr. Brown suggested that the interpreter, Ms. Agnes Choi, who attended at the pre-hearing with Arbitrator Allen on February 17, 2004, (where the July 5th to 8th, 2004 hearing dates were set), did not speak the Haka dialect which Mr. Zhuo speaks. Contrary to this suggestion, All Languages Ltd. has advised the Commission that Ms. Choi does interpret in Mandarin, Cantonese and Haka.

Nonetheless, Mr. Brown acknowledged that the formal Notice of the Re-Scheduled Hearing dated April 1, 2005 was sent to Mr. Zhuo's correct address at the time.

Subsection 6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), requires that the parties to a proceeding shall be given reasonable notice of the hearing by the tribunal. Under subsection 6(3) a notice of an oral hearing shall include:

(a) a statement of the time, place and purpose of the hearing; and

(b) a statement that if the party notified does not attend at the hearing, the tribunal may proceed in the party's absence and the party will not be entitled to any further notice in the proceeding.

I find that the formal Notices for both the re-scheduled hearing commencing July 5, 2004 and the submissions to be heard on June 2, 2005 complied with these requirements. Accordingly, I find that Mr. Zhuo received proper notice of both of these hearing dates.

Furthermore, a number of arbitrators have ruled on the issue of when it is appropriate to reopen a hearing pursuant to Rule 43 of the Code prior to making a final order disposing of the arbitration. In Thangarasa and Gore Mutual Insurance Company² Arbitrator Wilson states that "the Rule is permissive, not mandatory, and creates a discretion for an arbitrator to reopen a case, as long as the final order in the matter has not been issued."

In Tran and Pilot Insurance Company³ Arbitrator Manji dealt with the requirements to reopen a hearing as follows:

I believe that an arbitrator should exercise his or her discretion to receive further evidence after the case is closed only in exceptional or extraordinary circumstances. To do otherwise would be to delay and jeopardize the arbitration process and the finality required in the process.

Mr. Zhuo has simply stated that he was not aware of the hearing date starting on July 5, 2004. He did not attend on June 2, 2005. No evidence was given on behalf of the Applicant. Arbitrator Allen's oral and written advice to Mr. Zhuo on February 17, 2004 stated that new dates were scheduled for his arbitration hearing on July 5, 6, 7 and 8, 2004. This was confirmed in writing by a Notice of Re-Scheduled Hearing dated February 18, 2004 sent to his last known address. Based on this compliance with the SPPA, I find that he received proper notice of the hearing. He has not contacted me since the June 2, 2005 hearing date. Accordingly, he has not provided me with any evidence of exceptional or extraordinary circumstances that persuades me that his case should be reopened. Accordingly, I am not prepared to do so.

Mr. Zhuo's Claim for Accident Benefits:

Mr. Zhuo has claimed income replacement, medical, transportation and housekeeping benefits under the Schedule. He has not presented any evidence to support these claims. Furthermore, there are discrepancies which give me cause for concern. Mr. Zhuo bases his claim for income replacement benefits on an assertion in his Application for Accident Benefits dated June 6, 2001 that he worked as a dishwasher and kitchen helper at Dynasty Chinese Cuisine from June 2000 to May 8, 2001 at the rate of $550 per week. However, a letter dated November 18, 2001 from Dynasty Chinese Cuisine states that Mr. Zhuo was a temporary part-time helper as a dishwasher for three weeks from March 5 to 25, 2001. He was paid a sum of $350 per week cash. Therefore, he was not actually employed at the time of the accident. There is no medical evidence to support Mr. Zhuo's claim for any of these benefits. There was no credible evidence to support his assertion that housekeeping and home maintenance was done by a third party. In addition, there was no evidence that the taxi receipts he provided were for transportation to and from treatment. Pembridge alleges that the dates on most of the receipts do not match treatments or attendance at his doctor.

Mr. Zhuo bears the burden of proof in this arbitration proceeding. He is expected to provide evidence in support of his claims in order to establish that he is entitled to benefits. He has not presented any evidence to support his claims, and as a result, he has not discharged his burden of proof. I dismiss his claims for income replacement, medical, transportation and housekeeping benefits.

EXPENSES:

The parties made no submissions on the issues of entitlement or amount of expenses. If the parties cannot agree on expenses, pursuant to Rule 79 of the Dispute Resolution Practice Code, either party may request, in writing, an appointment before me to determine expenses provided that the request is made within 30 days from the date the decision on all other issues in dispute was issued.

December 28, 2005

Anne Sone Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Zhuo's claim for a weekly income replacement benefit is dismissed.
Mr. Zhuo's claim for a medical benefit for massage, physiotherapy and transportation expenses is dismissed.
Mr. Zhuo's claim for payments for housekeeping and home maintenance services is dismissed.
If the parties cannot agree on expenses, pursuant to Rule 79 of the Dispute Resolution Practice Code, either party may request, in writing, an appointment before me to determine expenses provided that the request is made within 30 days from the date the decision on all other issues in dispute was issued.