Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 145

FSCO A04-002019

BETWEEN:

PATRICK HICKEY

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Denise Ashby

Heard: August 21, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one appearing for Mr. Hickey

Koula Dimakarakos for Kingsway General Insurance Company

Issues:

The Applicant, Patrick Hickey, was injured in a motor vehicle accident on May 16, 2002. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway terminated benefits. The parties were unable to resolve their disputes through mediation, and Mr. Hickey 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. Hickey entitled to receive a weekly income replacement benefit from October 15, 2003 and ongoing pursuant to sections 4 and 5 of the Schedule?
What is the amount of weekly income replacement benefit that Mr. Hickey is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Hickey entitled to receive a medical benefit in the amount of $1,320.74 for treatment claimed pursuant to section 14 of the Schedule?
Is Mr. Hickey entitled to the payment of $50, the outstanding balance for the cost of a report prepared by Dr. Whan, claimed pursuant to section 24 of the Schedule?
Is Kingsway liable to pay Mr. Hickey's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Hickey liable to pay Kingsway's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Hickey entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Hickey is not entitled to receive a weekly income replacement benefit from October 15, 2003 and ongoing pursuant to sections 4 and 5 of the Schedule.
As Mr. Hickey is not entitled to receive a weekly income replacement benefit from October 15, 2003 and ongoing, there is no amount to be determined pursuant to section 6 of the Schedule.
Mr. Hickey is not entitled to receive a medical benefit in the amount of $1,320.74 for treatment claimed pursuant to section 14 of the Schedule.
Mr. Hickey is not entitled to the payment of $50, the outstanding balance for the cost of a report prepared by Dr. Whan, claimed pursuant to section 24 of the Schedule.
Kingsway is not liable to pay Mr. Hickey's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Mr. Hickey is liable to pay Kingsway's expenses in respect of the arbitration under section 282(11) of the Insurance Act, fixed at $1,300.00.
Mr. Hickey is not entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Mr. Hickey did not attend the arbitration hearing at 10:00 a.m. on Monday, August 21, 2006. No one appeared on his behalf. I adjourned the hearing until 10:35 a.m. to allow time for Mr. Hickey to attend. At that time, I resumed the hearing. Upon resuming Kingsway requested that the arbitration proceed in the absence of Mr. Hickey.

A review of the correspondence on the file revealed that the Commission issued a Notice of Hearing on December 20, 2005. The Notice provides "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." A copy was sent to Mr. Hickey at the last known address in the Commission's file. It was not returned to the Commission.

On March 14, 2006, Mr. Ian Little of Loreto, Little, Morello, was removed as Mr. Hickey's representative. A letter, of the same date, was sent to Mr. Hickey at the last known address in the Commission's file. It was not returned.

Rule 37.7 of the Dispute Resolution Practice Code provides as follows:

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.

On the basis that Mr. Hickey had received notice of the hearing, I proceeded with the hearing in his absence.

The burden of proof in this arbitration proceeding lies with Mr. Hickey. In order to establish his entitlement to benefits, he must provide evidence supporting his claims. He presented no evidence and has failed to meet the burden of proof. Consequently, his claims for income replacement benefits, a determination of the amount of the income replacement benefit, medical benefits, the cost of examinations and interest on overdue payments are dismissed.

EXPENSES:

Kingsway submitted that it should be entitled to its expenses and such an award should act as a deterrent to parties abandoning the process without notice to the Commission or opposing party. It relied on Tran and State Farm Mutual Automobile Insurance Company,² in which I fixed expenses at $1,500.00 and Belayneh and Kingsway General Insurance Company,³ in which the arbitrator fixed expenses at $500.00.

Mr. Hickey has not communicated with the Commission since his counsel was removed from the record. He failed to attend the hearing. He has met with no success in asserting his claim. Therefore, I exercise my discretion under section 282(11) of the Insurance Act, R.S.O. 1990, c.I..8 and order Mr. Hickey to pay Kingsway's expenses fixed at $1,300.00.

August 25, 2006

Denise Ashby Arbitrator

Date