Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 118
FSCO A04-000851
BETWEEN:
JELLO JAY HINDS
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: William J. Renahan
Heard: By telephone conference call on July 17, 2006.
Appearances:
Ms. Hinds did not appear
David W. Powrie for Guarantee Company of North America
Issues:
The Applicant, Jello Jay Hinds, was injured in a motor vehicle accident on November 23, 2002. She applied for and received statutory accident benefits from Guarantee Company of North America, payable under the Schedule.1 Guarantee terminated weekly income replacement benefits on September 16, 2003. The parties were unable to resolve their disputes through mediation, and Ms. Hinds applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Should the application for arbitration be dismissed on the grounds that its frivolous, vexatious or commenced in bad faith.
Result:
The application for arbitration is dismissed.
Jello Jay Hinds shall pay Guarantee Company of North America its costs of the arbitration proceeding fixed at $500.
EVIDENCE AND ANALYSIS:
The issues in dispute between the parties were identified at a pre-hearing before Arbitrator Sone on October 19, 2004 as follows:
Is Ms. Hinds entitled to receive a weekly income replacement benefit at the rate of $211.74 per week, from September 16, 2003 to date and ongoing, less any post accident income received, pursuant to section 4 of the Schedule?
Is Ms. Hinds entitled to receive a medical benefit for massage therapy and physical therapy services provided by Active Rehabilitation Works from July 4 to 31, 2003, in the amount of $1,073.95, claimed pursuant to section 14 of the Schedule?
Is Ms. Hinds entitled to attendant care benefits in the amount of $1,500 for services provided by Keri Byer from November 25 to December 23, 2002, pursuant to section 16 of the Schedule?
Is Ms. Hinds entitled to payments for housekeeping and home maintenance services, at the rate of $100 per week for services provided by Keri Byer from November 25, 2002 to July 31, 2003, less $480 pay by Guarantee at the rate of $20 per week from November 23, 2002 to May 7, 2003, pursuant to section 22 of the Schedule?
Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Ms. Hinds entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
On March 11, 2004, Arbitrator Lee permitted Ms. Hinds' representative to withdraw and he adjourned the hearing indefinitely.
On June 27, 2005, Arbitrator Sone resumed the pre-hearing by teleconference. Ms. Hinds did not participate. Arbitrator Sone adjourned the pre-hearing to November 4, 2005. At the resumption, Ms. Hinds participated. Arbitrator Sone asked for written submissions on whether she should dismiss the application for arbitration. In a decision dated February 27, 2006, she wrote that Ms. Hinds had agreed to sign authorizations for the insurer to obtain documents. She refused to dismiss the arbitration and awarded Guarantee $300 expenses.
Guarantee asked for a resumption of pre-hearing by teleconference which came before me on June 9, 2006. Ms. Hinds did not participate. Guarantee asked that I dismiss the application for arbitration. I refused because the Notice of Pre-Hearing Discussion stated that the purpose of the discussion was to attempt to settle the dispute and assist the parties to prepare for arbitration, not to deal with an application to dismiss the arbitration.
I asked the case worker to send Ms. Hinds a new notice advising her of Guarantee's application for an order dismissing the application for arbitration. The notice was sent to Ms. Hinds' last address on file with this Commission.
On July 17th, the person that answered the telephone at the last telephone number for Ms. Hinds told me that Ms. Hinds did not live there any more.
I find it likely that Ms. Hinds has abandoned this application for arbitration. Since she has put Guarantee to unnecessary expense to defend her application, I find that her application is frivolous and I dismiss it.
EXPENSES:
Since Arbitrator Sone's decision of February 27, 2006, counsel for Guarantee has written to Ms. Hinds on three occasions asking her to sign the authorizations she agreed to sign. Counsel also participated in a brief teleconference on June 9, 2006 and a 5 minute teleconference on July 17th. As well, counsel prepared a brief for the teleconference.
I award Guarantee its expenses of the arbitration proceeding which I assess at $500.
July 19, 2006
William J. Renahan
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 118
FSCO A04-000851
BETWEEN:
JELLO JAY HINDS
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The application for arbitration is dismissed.
Jello Jay Hinds shall pay Guarantee Company of North America its expenses of the arbitration proceeding fixed at $500.
July 19, 2006
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.