REASONS FOR DECISION

Before: Eban Bayefsky

Heard: August 8, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions to be received by September 12, 2006.

Appearances: No one for Mr. Moucho Dan Rabinowitz for ING Insurance Company of Canada

Issues:

The Applicant, Bilal Moucho, was injured in a motor vehicle accident on August 11, 2003. He applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ However, ING denied Mr. Moucho's claims for income replacement benefits from March 12 to August 27, 2004 and for housekeeping benefits from August 12 to November 12, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Moucho 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. Moucho entitled to receive a weekly income replacement benefit from March 12 to August 27, 2004, at a rate of $400 per week, pursuant to section 4 of the Schedule?
Is Mr. Moucho entitled to payments for housekeeping and home maintenance services from August 12 to November 12, 2003, at a rate of $100 per week, pursuant to section 22 of the Schedule?
Is ING liable to pay a special award pursuant to section 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Moucho?
Is Mr. Moucho entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is either party entitled to its reasonable expenses of the arbitration, under section 282(11) of the Insurance Act?

Result:

Mr. Moucho's arbitration is dismissed.
Mr. Moucho shall pay to ING its reasonable expenses of the arbitration, as agreed to or as determined by me in accordance with the procedure set out in the body of this decision.

EVIDENCE AND ANALYSIS:

Mr. Moucho applied for arbitration on December 14, 2004. The Commission conducted a pre-hearing conference on June 28, 2005, at which time Mr. Moucho was represented by Mazin & Rooz, Barristers and Solicitors. The parties identified income replacement benefits, housekeeping benefits, special award, interest and expenses as issues for the arbitration. The hearing was set for January 10-12, 2006. The pre-hearing conference resumed on December 15, 2005 to address various documents not yet produced by Mr. Moucho. The hearing was adjourned to August 8-10, 2006. The Commission sent the parties and their representatives a Notice of the new hearing dates. This correspondence was not returned to the Commission.

On August 1, 2006, I heard a motion brought by Mazin & Rooz to be removed as Mr. Moucho's representatives in this matter on the basis of their inability to contact Mr. Moucho to obtain proper instructions and to prepare for the upcoming arbitration. Mr. Moucho failed to participate in the motion. I granted Mazin & Rooz's motion and, in a letter dated August 1, 2006, confirmed that the hearing would proceed as scheduled on August 8-10, 2006.

On the first day of hearing (August 8, 2006), Mr. Dan Rabinowitz attended on behalf of ING. Mr. Moucho did not attend and no one appeared on his behalf. Mr. Rabinowitz sought the dismissal of the arbitration, as well as an opportunity to address the matter of costs once I issued an Order on the merits of the arbitration.

On August 11, 2006, my August 1, 2006 correspondence to the parties (granting Mazin & Rooz's motion to be removed as Mr. Moucho's representatives and confirming that the hearing would proceed as scheduled on August 8, 9 and 10, 2006) was returned to the Commission. The Case Administrator on this file advised that the courier company had attempted to deliver the letter but returned it to the Commission because no one was at Mr. Moucho's home to accept delivery of the letter.

On August 18, 2006, I reconvened the hearing by teleconference to advise Mr. Rabinowitz of this development and to seek his submissions on what, if any, action should be taken in the circumstances. Specifically, I sought Mr. Rabinowitz's position on whether a further attempt should be made to advise Mr. Moucho of the proceedings. Mr. Rabinowitz maintained that Mr. Moucho had received ample notice of the proceedings, had failed to participate in either the motion or the hearing and should not be given a further opportunity to respond to and/or to pursue the matter. I indicated that I would further consider the matter and issue a decision.

In correspondence dated August 24, 2006, I indicated that I was concerned that, in light of the circumstances under which Mazin & Rooz sought, and were granted, their removal as Mr. Moucho's representatives, in light of the fact that Mr. Moucho had not received my August 1, 2006 correspondence following the motion and in the absence of evidence that Mr. Moucho had sought to avoid delivery of the August 1st letter, he might not have been fully aware of the August 8th hearing and the need to attend. I further indicated that, in my view, before this matter was finally disposed of (in which Mr. Moucho's arbitration might be dismissed with costs to the Insurer), fairness required that a further notice be sent to Mr. Moucho seeking his position on his participation in this matter. I, therefore, issued an Order requiring Mr. Moucho to advise the Commission in writing, by September 12, 2006, whether he wished to further participate in and/or to pursue his arbitration.

The August 24, 2006 correspondence was mailed and couriered to Mr. Moucho's last known address. This was the address to which all previous correspondence had been sent, including Mazin & Rooz's motion (which was personally served there). Only my August 1, 2006 and the couriered copy of my August 24, 2006 correspondence was returned. The courier company returned the August 24, 2006 letter to the Commission, noting a "bad address." Pursuant to Rule 9.1(c) of the Dispute Resolution Practice Code (Fourth Edition), a party is obligated to advise the Commission in writing of any change of address, and the Commission is entitled to rely on the last known address contained its records. Mr. Moucho has not notified the Commission of any change of address. I am satisfied that the Commission was entitled to rely on Mr. Moucho's last known address as contained in its records, which was the address to which all correspondence had previously been sent. I am satisfied that Mr. Moucho had notice of the August 8-10, 2006 hearing, but more importantly, had been properly notified of my Order of August 24, 2006, requiring him to advise the Commission in writing, by September 12, 2006, whether he wished to further participate in and/or to pursue his arbitration.

Mr. Moucho did not attend at the August 8-10, 2006 hearing and has not indicated whether he wishes to further participate in and/or to pursue his arbitration. On the basis of Mr. Moucho's non-participation in the hearing and in the absence of any evidence in support of his claims, I find that Mr. Moucho's arbitration should be dismissed as abandoned.

EXPENSES:

I find that ING is entitled to its reasonable costs of the arbitration proceeding.

Mr. Rabinowitz asked to make written submissions on the matter of costs following my decision on the merits of the case. If required, the parties may now make submissions on the quantum of ING's expenses. The parties shall provide their submissions, if any, by the following dates: ING's submissions by December 22, 2006; Mr. Moucho's submissions by January 12, 2007; ING's reply by January 19, 2007.

December 8, 2006

Eban Bayefsky Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Moucho's arbitration is dismissed.
Mr. Moucho shall pay to ING its reasonable expenses of the arbitration, as agreed to or as determined by me in accordance with the procedure set out in the body of this decision.