Neutral Citation: 2005 ONFSCDRS 95
FSCO A04-001639
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GAYLE FRANKS
Applicant
and
AVIVA CANADA INC.
Insurer
REASONS FOR DECISION
Before:
Joyce Miller
Heard:
April 26, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appeared for Ms. Franks
Joseph Griffiths for Aviva Canada Inc.
Issues:
The Applicant, Gayle Franks, was injured in a motor vehicle accident on August 16, 2003. She applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva terminated weekly income replacement benefits on February 18, 2004. The parties were unable to resolve their disputes through mediation, and Ms. Franks 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 Ms. Franks entitled to receive a weekly income replacement benefit after February 18, 2004, in the amount of $400, less post-accident income, pursuant to section 4 of the Schedule?
Is Ms. Franks entitled to payments for housekeeping and home maintenance services in the amount of $605, representing the difference between the amount claimed and the amount paid by Aviva for the period between August 17, 2003 and May 1, 2004, pursuant to section 22 of the Schedule?
Is Aviva liable to pay Ms. Franks' expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Franks liable to pay Aviva's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Franks entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
- The arbitration is dismissed without costs.
BACKGROUND:
The hearing commenced as scheduled on April 26, 2005 at 10:00 a.m. Ms. Franks did not attend the hearing, nor did a representative appear on her behalf. No message was left with either the Commission or Aviva's counsel that she would not be attending. The hearing was delayed for a half hour and when neither Ms. Franks nor her representative appeared, for the following reasons, I proceeded to dispose of the case in her absence.
The Commission's records reveal the following:
A telephone pre-hearing was held on January 13, 2005. At the pre-hearing, an arbitration hearing date was set for April 26, 27, and 28, 2005.
A pre-hearing letter was sent to Ms. Franks on January 14, 2005. In the letter it stated:
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.2
- A Notice of Hearing was sent to Ms. Franks on January 14, 2005. 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.3
- There was no note in the file to indicate that Ms. Franks had advised the Commission of any change in her address.
Based on the above information, I am satisfied that Ms. Franks was provided with proper notice of the date of the hearing. Accordingly, pursuant to the notice given to Ms. Franks, I proceeded to dispose of the case.
FINDINGS:
The fact that an applicant does not appear at an arbitration hearing does not mean that an arbitrator can dismiss the arbitration solely on the basis of the applicant's failure to attend the hearing. However, the onus is on the applicant to prove his or her entitlement to benefits. In this case, there was no evidence provided regarding the merits of Ms. Franks' claim for benefits. Accordingly, I find that her claims should be dismissed.
EXPENSES:
Mr. Griffiths, counsel for Aviva, advised that Aviva would not be seeking its expenses in this arbitration.
July 6, 2005
Joyce Miller
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 95
FSCO A04-001639
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GAYLE FRANKS
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:
- This Arbitration is dismissed without costs.
July 6, 2005
Joyce Miller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/2, as amended.
- This notice incorporates Rule 37 of the Dispute Resolution Practice Code, (4th Edition, May 31, 2001) and section 6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
- This notice incorporates the provisions of Rule 37.7 of the Dispute Resolution Practice Code (4th Edition, May 31, 2001 and October 2003 update), and Section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ("SPPA"). Section 7 of the SPPA gives an adjudicator the authority to proceed with a hearing in a party's absence where the adjudicator is satisfied that proper notice of the hearing has been given to the party in accordance with the SPPA.