Financial Services Commission of Ontario

Neutral Citation: 2006 ONFSCDRS 174

FSCO A05-001414

BETWEEN:

BARBARA COLE

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Suesan Alves

Heard: October 30, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Neither Ms. Cole nor her representative attended the hearing Dan Rabinowitz for ING Insurance Company of Canada

Issues:

The Applicant, Barbara Cole, was injured in a motor vehicle accident on September 24, 2003. She applied for arbitration and claimed medical, caregiver, housekeeping and home maintenance benefits, the cost of examinations and interest payable under the Schedule.¹ She also claimed a special award and arbitration expenses under the Insurance Act, R.S.O. 1990, c.I.8, as amended. ING withdrew its claim for expenses at the hearing.

The issues in this hearing are:

1. Is Ms. Cole entitled to receive weekly caregiver benefits in the amount of $350.00 per week from April 20, 2004 to December 20, 2004, pursuant to section 13 of the Schedule?

2. Is Ms. Cole entitled to receive a medical benefit in the amount of $5,691.00, claimed pursuant to section 14 of the Schedule?

3. Is Ms. Cole entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from March 16, 2004 to December 20, 2004, pursuant to section 22 of the Schedule?

4. Is Ms. Cole entitled to payments for the cost of examinations in the amount of $240.00 for a disability certificate, pursuant to section 24 of the Schedule?

5. Is Ms. Cole entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

6. Is ING liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because in unreasonably withheld or delayed payments to Ms. Cole?

7. Is ING liable to pay Ms. Cole's arbitration expenses under section 282(11) of the Insurance Act?

Result:

1. Ms. Cole's claims for statutory accident benefits, interest, a special award and expenses are dismissed.

2. ING withdrew its claim for expenses.

EVIDENCE AND ANALYSIS:

Background

On October 25, 2006, a few days before the hearing was scheduled to commence, the Case Administrator attempted to schedule a settlement conference between the parties in accordance with the Commission's practice. There was no answer at the telephone number for Mr. Leibovitch, the Applicant's statutory accident benefits representative. On the same day, the Case Administrator also attempted to contact the Applicant, Ms. Cole, at the telephone number she had provided to the Commission. The phone was answered by a man who informed the Case Administrator that he had moved to that address one month ago and that no-one by the name of Barbara Cole lived there. The Case Administrator also performed a Bell 411 search, telephoned the numbers in Toronto for B. Cole and was unsuccessful in reaching the Applicant.

The hearing

The arbitration hearing commenced as scheduled on October 30, 2006. The Applicant was not present, nor was her representative. I recessed the hearing for fifteen minutes.

During the recess, the Case Administrator again attempted to reach the Applicant based on Bell 411 searches in Brampton and Toronto. She reported that each of the persons who answered the two telephone numbers informed her that Barbara Cole did not live there.

A search of registered statutory accident benefits representatives maintained by the Financial Services Commission on its website revealed that Mr. Leibovitch was no longer registered as a statutory accident benefits representative.

I resumed the hearing. Counsel for the Insurer, Mr. Rabinowitz, advised that he had attempted to reach Ms. Cole's representative for several months without success. He also advised that his client had attempted to contact the policyholder with a view to obtaining an updated address for the Applicant; however his client had been informed that the policyholder was now deceased.

Notice of the hearing

The Notice of Hearing, dated February 7, 2006 indicates that it was sent to Ms. Cole and to her representative, Mr. Alan Leibovitch. The Notice of Hearing states in part: "If you or your representative do not attend 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." I am satisfied that the Notice of Hearing complied with the requirements of section 6 of the Statutory Powers Procedure Act, R.S