Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 147
FSCO A05-000947
BETWEEN:
JUAN CORZO
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
REASONS FOR DECISION
Before:
Denise Ashby
Heard:
August 29, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appearing for Mr. Corzo
Lorraine Takacs for Motor Vehicle Accident Claims Fund
Issues:
The Applicant, Juan Corzo, claimed to have been injured in a motor vehicle accident on May 14, 2003. He applied for statutory accident benefits from Motor Vehicle Accident Claims Fund ("MVAC Fund"), payable under the Schedule.1 MVAC Fund denied his entitlement to weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Corzo 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. Corzo entitled to receive a weekly income replacement benefit from May 31, 2003 and ongoing pursuant to section 4 of the Schedule?
Is Mr. Corzo entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Mr. Corzo is not entitled to receive a weekly income replacement benefit from May 31, 2003 and ongoing pursuant to section 4 of the Schedule.
Mr. Corzo is not entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
EVIDENCE AND ANALYSIS:
Mr. Corzo did not attend the arbitration hearing at 10:00 a.m. on Tuesday, August 29, 2006. No one appeared on his behalf. I recessed the hearing until 10:35 a.m. to allow time for Mr. Corzo to attend. At that time, I resumed the hearing. Upon resuming MVAC Fund requested that the arbitration proceed in the absence of Mr. Corzo. A review of the correspondence on the file revealed that the Commission issued a Notice of Hearing on January 19, 2006. 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. Corzo at the last known address in the Commission's file. It was not returned to the Commission.
On July 26, 2006, Mr. Vickar wrote to the Commission seeking to be removed as solicitor of record. He indicated that neither he nor Mr. Corzo's former representative have been able to contact Mr. Corzo at telephone numbers provided to them by Mr. Corzo or his acquaintances. As well, the Case Administrator has been unable to reach Mr. Corzo at the number contained in the Commission's records.
On August 18, 2006, Mr. L. Brent Vickar of Longley/Vickar, was removed as Mr. Corzo's representative. In her order removing Mr. Vickar, the motion arbitrator found that no further notice of the hearing, scheduled to commence August 29, 2006, was required. A letter of the same date enclosing the Arbitration Order was sent to Mr. Corzo at the last known address in the Commission's file. It was returned to the Commission on Friday, August 25, 2006.
The relevant provisions of the Dispute Resolution Practice Code are Rules 9.1(c) and 37.7. Rule 9.1(c) provides:
Parties and their representatives must provide the Dispute Resolution Practice Group with written notice of any change of their address, telephone number and electronic transmission address (if any). The Dispute Resolution Practice Group is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.
Rule 37.7 of provides:
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 of the foregoing, I find that Mr. Corzo received notice of the hearing in January 2006. Further, on the basis of the returned order dated August 18, 2006 and the Case Administrator's inability to contact Mr. Corzo, I find that Mr. Corzo has failed to comply with his obligations pursuant to Rule 9.1(c). Therefore, having failed to comply with his obligations pursuant to Rule 9.1(c) and having failed to attend or send a representative to the hearing notwithstanding having received notice, the hearing proceeded in Mr. Corzo's absence pursuant to Rule 37.7.
The burden of proof in this arbitration proceeding lies with Mr. Corzo. 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 and interest on overdue payments are dismissed.
EXPENSES:
MVAC Fund made no submissions in respect of expenses. In the event it wishes to make submissions, it may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.
August 30, 2006
Denise Ashby
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 147
FSCO A05-000947
BETWEEN:
JUAN CORZO
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Corzo's claims in this arbitration are dismissed.
August 30, 2006
Denise Ashby
Arbitrator
Date