Neutral Citation: 2005 ONFSCDRS 98
FSCO A04-000778
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NAJAF IQBAL SYED
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Insurer
REASONS FOR DECISION
Before:
Richard Feldman
Heard:
June 13, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appeared for Mr. Syed
Rachel Hepburn Craig for Security National Insurance Co./ Monnex Insurance Mgmt. Inc.
Issues:
The Applicant, Najaf Iqbal Syed, was allegedly injured in a motor vehicle accident on October 25, 2003. He applied for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security"), payable under the Schedule.1 The parties did not agree on Mr. Syed's entitlement to said benefits and they were unable to resolve their dispute through mediation. Mr. Syed applied for arbitration at the Financial Services Commission of Ontario (the "Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Syed entitled to receive a weekly income replacement benefit, from November 2, 2003 onwards, pursuant to section 4 of the Schedule?
Is Mr. Syed entitled to receive payment for the cost of obtaining the clinical notes and records of Dr. Yee in the amount of $435.00, pursuant to s. 24 of the Schedule?
Is Security liable to pay Mr. Syed's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Syed liable to pay the Security's expenses in respect of the arbitration?
Is Mr. Syed entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
This application is dismissed.
The Applicant shall pay to Security its expenses of this arbitration, fixed in the sum of $2,000.63.
EVIDENCE AND ANALYSIS:
The record discloses (and counsel for Security confirmed) the following facts:
The Application for Arbitration was filed by the Applicant with the Commission on April 14, 2004. David Carranza was acting as his agent at that time.
Apparently, Mr. Syed left Canada in June 2004 and advised Mr. Carranza that he expected to return to Canada after a short while; in the meantime, he provided an e-mail address to Mr. Carranza so that Mr. Carranza would be able to keep him informed as to the progress of this matter and obtain any necessary instructions from him. A pre-hearing conference was held by teleconference on September 8, 2004. Mr. Carranza participated on behalf of Mr. Syed.
On March 5, 2005, David Carranza wrote to the Commission to advise that there had been a "breakdown of communication" between Mr. Carranza's office and Mr. Syed (i.e. Mr. Carranza was unable to communicate with his client in order to obtain instructions) and that Mr. Carranza wished to be removed from the record as Mr. Syed's representative. The pre-hearing conference was resumed and the Commission attempted to contact Mr. Syed by mail at his last known residence and by e-mail to the address Mr. Syed had provided to Mr. Carranza. The Commission provided a written reminder to Mr. Syed that the hearing was scheduled to commence on June 13, 2005. The Commission received no response from Mr. Syed and, by order of Arbitrator Renahan dated May 11, 2005, Mr. Carranza was permitted to withdraw as Mr. Syed's representative. On May 16, 2005, Security proceeded to attempt to serve Mr. Syed (sent by courier to his last known address) with the documents upon which Security intended to rely at the hearing.
On June 13, 2005, the date scheduled for the hearing of this matter, the Applicant failed to attend before the Commission. No one appeared on behalf of Mr. Syed. Therefore, no evidence was adduced in support of this application and no submissions were made in support of this application. Mr. Syed has not communicated with the Commission or the Insurer (or, apparently, his own representative) since the spring of 2004. It appears that the Applicant has abandoned this application. Furthermore, in the absence of any evidence in support of this application, the Applicant has failed to meet his onus of proof and there is no case to which Security need respond. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, Fourth Edition (the "Code"), I proceeded to hear submissions from Security. Security requested that this application be dismissed and that Security be awarded its expenses of this proceeding. In the circumstances of this case, I find these requests to be reasonable. The application is dismissed.
EXPENSES:
Bearing in mind the criteria set out in the Expense Regulation (Section F of the Code), it is clear that the Insurer was completely successful on this arbitration and that the conduct of the Applicant tended to hinder the proceedings. There was nothing particularly novel or complex about this case and there were no written offers of settlement given to me to consider. Security presented documentary evidence (statements of account dated August 10, 2004, February 25, 2005 and June 10, 2005) that Ms. Hepburn Craig spent approximately 22 hours working on this file up to June 9, 2005 (plus a total of one hour spent on the file by law clerks). She then spent a few more hours to prepare and attend before me on June 13, 2005. At the appropriate Legal Aid rates, this is equivalent to $1,869.75. Security is also claiming $60.98 in disbursements. The total expenses claimed by Security are then $2,000.63, inclusive of G.S.T. In the circumstances of this case, I find it appropriate to fix the Insurer's expenses in the amount of $2,000.63.
July 8, 2005
Richard Feldman
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 98
FSCO A04-000778
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NAJAF IQBAL SYED
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. 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 application is dismissed.
The Applicant shall pay to the Insurer its expenses of this arbitration, fixed in the sum of $2,000.63 (inclusive of G.S.T.).
July 8, 2005
Richard Feldman
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.