Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 2
FSCO A04-001844
BETWEEN:
FATMA MOHAMED HENDAWY
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Eban Bayefsky
Heard: December 1, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: No one for Ms. Hendawy Philippa Samworth for Co-operators General Insurance Company
Issues:
The Applicant, Fatma Mohamed Hendawy, alleged that she was injured in a motor vehicle accident on April 25, 2003. Co-operators General Insurance Company ("Co-operators") denied Ms. Hendawy's claim for certain medical accounts under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Hendawy 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 Ms. Hendawy entitled to payments for the cost of examinations by Canada Health Assessment Centre for an in-home assessment on May 14, 2003 ($800), for a mental health assessment on May 22, 2003 ($1,280) and for a functional abilities assessment on May 22, 2003 ($1,140), pursuant to section 24 of the Schedule?
Is Ms. Hendawy entitled to payment for the cost of an examination by Total Health Rehabilitation for an in-home assessment on May 13, 2003 ($1,000), pursuant to section 24 of the Schedule?
Is Co-operators liable to pay Ms. Hendawy's expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act?
Is Ms. Hendawy liable to pay Co-operators' expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act?
Is Ms. Hendawy entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Result:
Ms. Hendawy is not entitled to payments for the cost of examinations by Canada Health Assessment Centre for an in-home assessment on May 14, 2003, for a mental health assessment on May 22, 2003 or for a functional abilities assessment on May 22, 2003.
Ms. Hendawy is not entitled to payment for the cost of an examination by Total Health Rehabilitation for an in-home assessment on May 13, 2003.
Co-operators is not liable to pay Ms. Hendawy's expenses in respect of the arbitration.
Ms. Hendawy is not liable to pay Co-operators' expenses in respect of the arbitration.
Ms. Hendawy is not entitled to interest.
EVIDENCE AND ANALYSIS:
Ms. Hendawy applied for arbitration on the above issues (as well as on the issues of benefits for medical treatment at Doctor's Rehab Clinic Inc., caregiver benefits and housekeeping benefits) on August 30, 2004. At the time, Ms. Hendawy was represented by Mr. Mohammed Muslim, barrister and solicitor. The Commission originally scheduled a pre-hearing conference in this matter for March 31, 2005. However, due to various problems involving Mr. Muslim, culminating in the Law Society of Upper Canada being appointed on March 22, 2005 as Trustee to take possession of all of Mr. Muslim's files, and Ms. Hendawy's advice that she was unable to proceed with her case without a lawyer, the Commission, with the consent of the Insurer, rescheduled the pre-hearing conference for September 14, 2005. On March 14, 2005, the Commission sent the parties a Notice of the new pre-hearing date.
The Law Society of Upper Canada subsequently assigned Ms. Hendawy's file to Mr. Michael Krylov, barrister and solicitor. Mr. Krylov entered into settlement discussions with Co-operators and, by May 6, 2005, had reached an agreement disposing of Ms. Hendawy's claims for caregiver and housekeeping benefits. By letter dated April 27, 2005 to counsel for Co-operators, Ms. Samworth, Mr. Krylov indicated that, "as for the outstanding issues, my client will not be pursuing same." Mr. Krylov further stated that he would "notify the individual 'treatment providers' and 'assessment' facilities that they will be responsible for their own accounts." By letter dated April 27, 2005, Mr. Krylov wrote Canada Health and Total Rehabilitation as follows:
Further to the above noted matter, please be advised that the above-noted claimant has applied for arbitration on your behalf, with regard to your outstanding accounts.
I can advise that a pre-hearing is scheduled for September 14, at 10:00 a.m. at the Financial Services Commission of Ontario.
This is to advise that I will not be representing you or your interests at that time.
I urge you in the strongest terms possible to hire your own counsel and appear on that date to deal with your outstanding issues, such that they may be.
On May 17, 2005, Co-operators entered into a settlement directly with Doctor's Rehab for their treatment account.
On September 14, 2005, the Commission conducted the previously scheduled pre-hearing conference. Ms. Samworth and her client attended. Neither Ms. Hendawy nor anyone on her behalf attended. No one attended from Canada Health or Total Rehabilitation. The presiding Arbitrator proceeded in Ms. Hendawy's absence and, by letter dated September 21, 2005, confirmed the above-noted issues as those outstanding for the arbitration. The Arbitrator also noted that the hearing date of December 1, 2005 had been set in Ms. Hendawy's absence and "on the assumption that it will be adjourned if the Applicant attends on Dec. 1 or indicates beforehand that she intends to pursue the application." On September 15, 2005, the Commission sent the parties a Notice of the hearing date.
The hearing commenced on December 1, 2005. Ms. Samworth participated on behalf of Co-operators. Ms. Hendawy did not attend and no one appeared on her behalf. No one attended from Canada Health or Total Rehabilitation. Ms. Samworth advised that she had spoken to Mr. Krylov and Ms. Hendawy (who both participated from Mr. Krylov's office by speaker phone) on November 24, 2005 concerning the upcoming hearing. Ms. Samworth advised that Mr. Krylov had indicated that Ms. Hendawy would not be pursuing this matter and simply sought Co-operators' undertaking not to seek costs from Ms. Hendawy at the hearing.
At the hearing, and based on Ms. Hendawy's failure to prosecute her case, Ms. Samworth sought the dismissal of the above-noted claims (for the accounts of Canada Health and Total Rehabilitation, and for interest and costs). Ms. Samworth advised that Co-operators was not seeking costs from Ms. Hendawy or any other party.
It is trite law that Ms. Hendawy bears the onus of establishing her entitlement to payments for the noted section 24 assessments. Based on Mr. Krylov's advice to Co-operators on both April 27 and November 24, 2005, and to Canada Health and Total Rehabilitation on April 27, 2005, that Ms. Hendawy would not be pursuing the clinics' outstanding accounts, based on Ms. Hendawy's non-attendance at both the pre-hearing and hearing (despite being duly notified of the two proceedings), and based on the fact that neither Ms. Hendawy nor anyone associated with the relevant medical accounts tendered any evidence at the hearing in support of Ms. Hendawy's claims, I find that Ms. Hendawy has not discharged the onus on her of establishing entitlement to payments for the four section 24 assessments.
Given the lack of entitlement in this case, and given that there are no overdue benefits, I find that Ms. Hendawy is not entitled to interest.
Ms. Hendawy's arbitration is, hereby, dismissed.
EXPENSES:
Given the result in this proceeding, I find that Ms. Hendawy is not entitled to arbitration expenses. Co-operators did not seek their expenses and I decline to order Ms. Hendawy to pay any.
January 5, 2006
Eban Bayefsky Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 2
FSCO A04-001844
BETWEEN:
FATMA MOHAMED HENDAWY
Applicant
and
CO-OPERATORS 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:
- Ms. Hendawy's arbitration is dismissed, without costs to either party.
January 5, 2006
Eban Bayefsky Arbitrator
Date