Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 190
FSCO A05-001243 and A05-001244
BETWEEN:
YING XIU ZHU and QUAN XIAN WU
Applicants
and
RBC GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Robert Bujold
Heard:
November 10, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appearing for Mrs. Zhu
No one appearing for Mr. Wu
Tricia McAvoy for RBC General Insurance Company
Issues:
The Applicants, Ying Xiu Zhu and Quan Xian Wu, are alleged to have been injured in a motor vehicle accident on January 13, 2004. They applied for statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.1 RBC denied their entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Zhu and Mr. Wu 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:
For Mrs. Zhu:
Is Mrs. Zhu entitled to receive a medical benefit in the amount of $1,970.00 for treatment at Super Rehab, pursuant to section 14 of the Schedule?
Is Mrs. Zhu entitled to payments for housekeeping and home maintenance services in the amount of $350.00 per month until December 20, 2004, pursuant to section 22 of the Schedule?
Is RBC liable to pay Mrs. Zhu's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Zhu liable to pay RBC's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Zhu entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
For Mr. Wu:
Is Mr. Wu entitled to receive a medical benefit in the amount of $1,970.00 for treatment at Super Rehab, pursuant to section 14 of the Schedule?
Is Mr. Wu entitled to payments for housekeeping and home maintenance services in the amount of $350.00 per month until December 20, 2004, pursuant to section 22 of the Schedule?
Is RBC liable to pay Mr. Wu's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Wu liable to pay RBC's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Wu entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Result:
For Mrs. Zhu:
Mrs. Zhu is not entitled to receive a medical benefit in the amount of $1,970.00 for treatment at Super Rehab, pursuant to section 14 of the Schedule.
Mrs. Zhu is not entitled to payments for housekeeping and home maintenance services in the amount of $350.00 per month until December 20, 2004, pursuant to section 22 of the Schedule.
RBC is not liable to pay Mrs. Zhu's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mrs. Zhu is liable to pay RBC's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, fixed at $750.00.
Mrs. Zhu is not entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule.
For Mr. Wu:
Mr. Wu is not entitled to receive a medical benefit in the amount of $1,970.00 for treatment at Super Rehab, pursuant to section 14 of the Schedule.
Mr. Wu is not entitled to payments for housekeeping and home maintenance services in the amount of $350.00 per month until December 20, 2004, pursuant to section 22 of the Schedule.
RBC is not liable to pay Mr. Wu's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mr. Wu is liable to pay RBC's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, fixed at $750.00.
Mr. Wu is not entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule.
EVIDENCE AND ANALYSIS:
These matters were initially scheduled to be heard on October 10, 11 and 12, 2006. Shortly before the scheduled hearing, on October 2, 2006, Mrs. Zhu and Mr. Wu advised the Commission, by fax transmission, that they were no longer represented by the firm of Longley/Vickar. I note that the fax from Mrs. Zhu and Mr. Wu confirmed their address and telephone number and also advised the Commission that they intended to find another representative to represent them at the hearing.
As a result of the fax from Mrs. Zhu and Mr. Wu, Arbitrator Sampliner, by letter of October 2, 2006, granted a previous request by Longley/Vickar to be removed as solicitors of record. Arbitrator Sampliner's letter clearly advised Mrs. Zhu and Mr. Wu to attend at the offices of the Commission on October 10, 2006 at 10:00 a.m. to speak to a request for an adjournment to secure a new representative.
Mrs. Zhu and Mr. Wu failed to attend at the hearing before me on October 10, 2006 at 10:00 a.m. At approximately 10:20 a..m., I placed a telephone call, with the assistance of a Vietnamese interpreter, to the telephone number confirmed by Mrs. Zhu and Mr. Wu in their fax of October 2, 2006. A female person answered the call and advised that Mrs. Zhu and Mr. Wu had moved, but the person who answered the telephone did not have a forwarding address for Mrs. Zhu or Mr. Wu and the call was terminated, for unknown cause, when the person was asked to identify herself.
By 10:40 a.m., Mrs. Zhu and Mr. Wu had still not attended at the Commission. RBC requested that the hearing proceed in Mrs. Zhu and Mr. Wu's absence. I declined to proceed on October 10, 2006 and rescheduled the hearing to November 10, 2006 at 1:00 p.m.
I wrote to Mrs. Zhu and Mr. Wu on October 10, 2006, at the last known address confirmed in their fax of October 2, 2006, outlining the recent chronology of events and advising Mrs. Zhu and Mr. Wu to appear, in person, on November 10, 2006 at 1:00 p.m. to explain both their failure to attend the commencement of the hearing on October 10, 2006, as directed by Arbitrator Sampliner, and also to explain their intentions with respect to proceeding with this matter. They were advised of the possible consequences of not attending on November 10, 2006, including the possibility that the hearing could proceed in their absence and could result in an order dismissing their claims and an order awarding expenses against them.
My letter of October 10, 2006 and a Notice of Rescheduled Hearing were sent to Mrs. Zhu and Mr. Wu by courier. Although the Commission received confirmation that the couriered letters were received and signed for, the couriered letters appeared at the reception desk of the Commission on or about October 26th. It is not clear exactly how the letters came to be returned to the Commission.
On October 26, 2006, the case administrator attempted to contact Mrs. Zhu and Mr. Wu by telephone and was advised by a female person that Mrs. Zhu and Mr. Wu had "returned to China". The case administrator was unable to secure any further details with respect to Mrs. Zhu and Mr. Wu or their whereabouts.
Mrs. Zhu and Mr. Wu did not attend at the hearing rescheduled for November 10, 2006 at 1:00 p.m. No one appeared on their behalf. I recessed until 1:25 p.m. to allow time for Mrs. Zhu and Mr. Wu or a representative to attend. Upon resuming, RBC requested that the hearing proceed in Mrs. Zhu and Mr. Wu's absence.
Rule 9.1(c) of the Dispute Resolution Practice Code (the "Code") provides as follows:
Parties and their representatives must provide the Dispute Resolution Group with written notice of any change of their address, telephone number and electronic transmission address (if any). The Dispute Resolution 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 the Code 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 Mrs. Zhu and Mr. Wu received notice of the initial hearing date of October 10, 2006 at 10:00 a.m., as well as the rescheduled hearing date of November 10, 2006 at 1:00 p.m. I further find that Mrs. Zhu and Mr. Wu failed to comply with their obligations pursuant to Rule 9.1(c) of the Code. Therefore, having failed to comply with their 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 Mrs. Zhu and Mr. Wu's absence pursuant to Rule 37.7.
In order to establish their entitlement to benefits, Mrs. Zhu and Mr. Wu must provide evidence supporting their claims. As Mrs. Zhu and Mr. Wu did not attend to present any evidence, they failed to establish their entitlement to the benefits claimed. Consequently, their claims for medical/rehabilitation benefits and housekeeping expenses, as well as their claims for interest on overdue payments and expenses, are dismissed.
EXPENSES:
RBC submitted that it should be entitled to its expenses of the arbitration proceeding, including its expenses of attending at the pre-hearing discussion on January 11, 2006, the initial hearing date of October 10, 2006 and the rescheduled hearing date of November 10, 2006. RBC provided a Bill of Costs in respect of each of Mrs. Zhu and Mr. Wu.
Mrs. Zhu and Mr. Wu have not communicated with the Commission since their counsel was removed from the record. They did not attend at the Commission on the initial hearing date of October 10, 2006 nor the rescheduled date of November 10, 2006. They met with no success in asserting their claims.
I therefore exercise my discretion, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, and order Mrs. Zhu to pay RBC's expenses fixed against her at $750.00, and I further order Mr. Wu to pay RBC's expenses fixed against him at $750.00.
December 6, 2006
Robert Bujold Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 190
FSCO A05-001243 and A05-001244
BETWEEN:
YING XIU ZHU and QUAN XIAN WU
Applicants
and
RBC GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
For Mrs. Zhu:
Mrs. Zhu's claims for payment of medical benefits and housekeeping and home maintenance services are dismissed.
RBC is not liable to pay Mrs. Zhu's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mrs. Zhu shall pay RBC's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, fixed at $750.00.
For Mr. Wu:
Mr. Wu's claims for payment of medical benefits and housekeeping and home maintenance services are dismissed.
RBC is not liable to pay Mr. Wu's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mr. Wu shall pay RBC's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, fixed at $750.00.
December 6, 2006
Robert Bujold Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.