Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 56
FSCO A05-000612
BETWEEN:
ZOLTANNE REZMUVES
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before: Joyce Miller
Heard: November 29, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Ms. Rezmuves did not appear
Anna-Marie Musson for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Zoltanne Rezmuves, was injured in a motor vehicle accident on November 18, 2003. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.1 Royal denied her application for weekly income replacement benefits on November 25, 2004. The parties were unable to resolve their disputes through mediation, and Ms. Rezmuves 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. Rezmuves entitled to an income replacement benefit at the rate of $400 per week from November 25, 2003 to May 1, 2004 pursuant to Part 2 of the Schedule?
Is Royal liable to pay Ms. Rezmuves' expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Rezmuves liable to pay Royal's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Rezmuves entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Result:
Ms. Rezmuves is not entitled to an income replacement benefit from November 25, 2003 to May 1, 2004 pursuant to Part 2 of the Schedule?
Ms. Rezmuves is not entitled to her expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.
Ms. Rezmuves shall pay Royal's expenses in the amount of $1,500 in respect of this arbitration proceeding pursuant to subsection 282(11) of the Insurance Act.
BACKGROUND:
The arbitration hearing in this case was joined with the arbitration hearing of Mr. Gyula Rezmuves who was in the same accident and whose claim involved the same issues. Mr. Rezmuves attended at the hearing which was scheduled for November 29, 2005 at 10:00 a.m. Ms. Rezmuves did not attend the hearing, nor did a representative appear on her behalf. No message was left with either the Commission or Royal's counsel that she would not be attending.
The hearing with respect to Mr. Rezmuves' claim proceeded, however, by the end of the day his claim was settled. After Mr. Rezmuves' claim was settled and Ms. Rezmuves had still not appeared, for the following reasons I proceeded to dispose of the case in her absence.
The Commission's records reveal the following:
A pre-hearing was held on September 22, 2005. The letter noted that Ms. Rezmuves did not appear at the pre-hearing and that her then counsel, Mr. Marc Spivak was permitted to be removed from the record as her counsel.
The pre-hearing letter was sent to Ms. Rezmuves on September 30, 2005, which stated:
Where notice of hearing has been sent to a party and a party does not attend, 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.2
- A Notice of Hearing was sent to Ms. Rezmuves on September, 27, 2005, which stated:
You may attend this hearing in person and/or be represented. 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.3
- There was no note in the file to indicate that Ms. Rezmuves had advised the Commission of any change in her address.
Based on the above information, I am satisfied that Ms. Rezmuves was provided with proper notice of the date of the hearing. Accordingly, pursuant to Rule 37.7 of the Dispute Resolution Practice Code, I proceeded to hear the case.
FINDINGS:
The fact that an applicant does not appear at an arbitration hearing does not mean that an arbitrator can dismiss the arbitration solely on the basis of the applicant's failure to attend the hearing. However, the onus is on the applicant to prove his or her entitlement to benefits. In this case, there was no evidence provided regarding the merits of Ms. Rezmuves' claim for benefits. Accordingly, I find that her claims should be dismissed.
EXPENSES:
Subsection 282(11) of the Insurance Act provides:
The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
An arbitrator takes into consideration a number of criteria to award expenses to a party.4 Subsection 12(2) of the Expense Regulation5 provides these criteria:
each party's degree of success in the outcome of the proceeding;
any written offers to settle made in accordance with subsection (3);
whether novel issues are raised in the proceeding;
the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;
whether any aspect of the proceeding was improper, vexatious or unnecessary.
Findings
I find the fact that Ms. Rezmuves commenced a proceeding which she failed to pursue has caused the Insurer unnecessary expenses. Accordingly, I find that Ms. Rezmuves is not entitled to her expenses and Royal is entitled to its reasonable expenses in the amount of $1,500.
April 11, 2006
Joyce Miller
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 56
FSCO A05-000612
BETWEEN:
ZOLTANNE REZMUVES
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.1.8, as amended, it is ordered that:
The arbitration is dismissed.
Ms. Rezmuves shall pay Royal's expenses in the amount of $1,500 in respect of the arbitration.
April 11, 2006
Joyce Miller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- This notice in the pre-hearing letter incorporates Rule 37.7 of the Dispute Resolution Practice Code, (4th Edition, updated October 2003), which 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 my proceed with the hearing in the party's absence or without the party's participation, as the case maybe, and the party is not entitled to any further notice in the proceeding", and section 6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
- This notice incorporates Rule 37.7 of the Dispute Resolution Practice Code, (4th Edition, updated October 2003) and section 6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
- The case law is clear, awarding expenses at arbitration is not based on the results approach of the courts, but is based on the underlying purpose of the statutory accident benefit scheme, namely, to facilitate access to inexpensive, speedy and informal adjudication of disputes. See for example: McCormick and Economical Mutual Insurance Company, (OIC A-000139, October 2, 1991); Calogero and The Co-operators General Insurance Company, (OIC P-000251, February 13, 1992); Allison and Markel Insurance Company of Canada, (OIC P-001231, August 21, 1996); Biliouras and Allstate Insurance Company of Canada, (FSCO P98-00002, October 13, 1998); Athanasiadis and Zurich Insurance Company, (FSCO A97-001239, December 23, 1999); Gray and Zurich Insurance Company, (FSCO P98-00047, June 11, 1999); and Morelli and Zurich Insurance Company, (FSCO A97-001997, June 27, 2000).
- Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 275/03 made under the Insurance Act.