Neutral Citation: 2005 ONFSCDRS 75
FSCO A04-001664
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KOJO SMITH SACKEY
Applicant
and
AVIVA CANADA INC.
Insurer
REASONS FOR DECISION
Before:
Robert A. Kominar
Heard:
April 12, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Patrick DaSilva, paralegal agent, for Mr. Sackey
Joseph Griffiths, legal counsel, for Aviva Canada Inc.
Issues:
The Applicant, Kojo Smith Sackey, was injured in a motor vehicle accident on December 8, 2003. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva partially denied Mr. Sackey's claims for income replacement benefits, housekeeping and home maintenance benefits as well as attendant care benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sackey 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. Sackey entitled to receive a weekly income replacement benefit, from December 15, 2003 onward, at a rate of $400 per week, pursuant to section 4 of the Schedule?
Is Mr. Sackey entitled to attendant care benefits, from December 9, 2003 to August 4, 2004, in the amount of $13,764.39, pursuant to section 16 of the Schedule?
Is Mr. Sackey entitled to payments for housekeeping and home maintenance services, from December 9, 2003 to February 29, 2004 and from May 12, 2004 to August 31, 2004, in the amount of $2,957, less any amounts already paid by Aviva, pursuant to section 22 of the Schedule?
Is Aviva liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Sackey?
Is Aviva liable to pay Mr. Sackey's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Mr. Sackey liable to pay Aviva's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Mr. Sackey entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Result:
Mr. Sackey is not entitled to income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits, a special award, interest, or expenses as claimed.
Mr. Sackey is not liable to pay Aviva's expenses in this arbitration.
EVIDENCE AND ANALYSIS:
The hearing on this matter was set to commence on April 12, 2005, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. At the beginning of the hearing Mr. Griffiths, legal counsel, was present, representing Aviva. Mr. DaSilva, paralegal agent, was present representing Mr. Sackey. Mr. Sackey was not present and Mr. DaSilva did not know where he was. He advised me that Mr. Sackey had contacted him by telephone at 2:00 a.m. that morning to confirm that he would be in attendance at the arbitration.
Mr. DaSilva requested that the hearing be adjourned due to Mr. Sackey's absence. Mr. Griffiths opposed the adjournment. Mr. DaSilva had requested an adjournment by letter on Saturday, April 2, 2005, which request was denied on April 5, 2005 by Arbitrator Bayefsky. Mr. DaSilva also forwarded a letter to the Commission on April 11, 2005 which purported to request an adjournment on a different ground. Mr. Griffiths submitted that the three requests for an adjournment by the Applicant were intended only to delay and had no merit. Mr. Griffiths further advised me that Mr. DaSilva had a medical witness in attendance, whom he released prior to making submissions to me regarding Mr. Sackey's absence. Mr. DaSilva confirmed that he had in fact done this, notwithstanding that I had not yet determined whether the hearing would proceed. Having considered the matter and Mr. DaSilva's submissions on the adjournment, I declined to adjourn the hearing.
I did, however, recess the hearing until 11:00 a.m. to allow Mr. Sackey more time to arrive and for Mr. DaSilva to attempt to locate him. At 11:00 a.m., I reconvened the hearing and Mr. DaSilva advised me that he had made contact with Mr. Sackey, who apparently had slept in. Mr. DaSilva indicated that he thought that Mr. Sackey could be in attendance by 1:00 p.m. With the consent of Mr. Griffiths, the hearing was further recessed until 1:00 p.m. to allow Mr. Sackey to attend.
At 1:00 p.m., when the hearing reconvened, Mr. Sackey was in attendance. I asked Mr. DaSilva to commence presenting the Applicant's case and Mr. DaSilva advised that he wished to withdraw the claims made in this arbitration. Mr. Griffiths objected and requested that the hearing proceed. No submissions were made to support the last-minute request to withdraw the issues from a hearing on the merits. I declined Mr. DaSilva's request and, once again, asked him to commence his case.
At that point Mr. DaSilva advised that Mr. Sackey would not be presenting any evidence to support his claims in this arbitration. I inquired whether Mr. DaSilva understood that the consequences of the Applicant presenting no evidence would be that I would make my decision based on that choice. He advised me that he understood. I further asked Mr. Sackey if he understood this. Mr. Sackey confirmed that he understood the consequences of his decision not to present any evidence in this arbitration.
The applicant in an arbitration has the burden of proof to demonstrate to the arbitrator, on the balance of probabilities, that he is entitled to the benefits he is claiming. Mr. Sackey elected not to present any evidence to support any of the claims he is asserting in this arbitration. Therefore, I find that Mr. Sackey has not met his burden of proof and, as a result, all of the claims he makes in this arbitration are dismissed.
EXPENSES:
After I dismissed Mr. Sackey's claims, I asked for submissions regarding expenses. Mr. Griffiths advised that, in the circumstances, Aviva was content to withdraw its claim that Mr. Sackey pay its arbitration expenses. Having heard no submissions to support Aviva's entitlement to expenses, I dismissed that claim as well.
May 30, 2005
Robert A. Kominar
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 75
FSCO A04-001664
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KOJO SMITH SACKEY
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Sackey's claims for income replacement benefits, attendant care benefits, housekeeping benefits, interest and a special award are dismissed.
Each party shall bear their own expenses in this arbitration.
May 30, 2005
Robert A. Kominar
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.