Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 82
FSCO A05-001553
BETWEEN:
BENYAM BELAYNEH
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR INTERIM ARBITRATION ORDER
Before: Richard Feldman
Heard: May 15 and May 17, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Mr. Belayneh (unrepresented) John D. Dean for Kingsway General Insurance Company
Background:
The Applicant, Benyam Belayneh, was injured in a motor vehicle accident on May 25, 2003. Disputes arose between Mr. Belayneh and Kingsway General Insurance Company ("Kingsway") concerning Mr. Belayneh's claim for benefits under the Schedule.1 The parties were unable to resolve their disputes through mediation and, on July 20, 2005, Mr. Belayneh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At that time, Mr. Belayneh was represented by David Carranza.
According to the Applicant, the address and telephone numbers that Mr. Carranza had for the Applicant were not current. Also, the Applicant was out of the country between April and July 2005. As a result of not having current information as to the whereabouts of the Applicant, Mr. Carranza was unable to contact the Applicant. Nevertheless, the pre-hearing conference was held on February 8, 2006, in the absence of the Applicant. As outlined in the pre-hearing letter of Arbitrator Sampliner dated February 15, 2006, Mr. Carranza was permitted to remove himself from the record as the Applicant's representative. The Applicant was ordered to produce certain documents (see page 3 of the letter) and the hearing was set for May 15 through May 17, 2006. The pre-hearing letter also indicates that it was not expected that the Applicant would attend the hearing but, should the Applicant suddenly appear, the Insurer could request an adjournment.
A friend of the Applicant's collected some correspondence delivered to the Applicant's former address (520A [street name withheld], Toronto) and handed it to the Applicant in or about February 2006. The Applicant then telephoned the solicitors for the Insurer in March 2006. As a result of that conversation, the Insurer was under the impression that the Applicant intended to withdraw this Application. On April 4, 2006, counsel for the Insurer wrote to the Applicant setting out their understanding and indicating that, as a result, they would not be preparing for a contested arbitration hearing. At this time, the Applicant provided Kingsway's counsel with his current address (514 [street name withheld], Toronto).
Out of an abundance of caution, on April 11, 2006, Kingsway's counsel sent a copy of the Insurer's Arbitration Brief. Although it was sent to the Applicant's former address (i.e., the wrong address), it was nevertheless received by the Applicant shortly thereafter.
On May 15, 2006, the parties appeared before me and the Applicant indicated that he might be prepared to withdraw his Application for Arbitration. The matter was recessed until May 17, 2006 at the request of the Applicant so that the Applicant could obtain independent legal advice. On May 17, 2006, the parties attended before me and the Applicant advised me that he wished to proceed with a hearing of this matter on its merits.
Interim order sought:
The Insurer requested an adjournment to prepare for the hearing, upon certain terms including an order that: (1) the Applicant comply with the production orders contained in the pre-hearing letter within a specified period of time; (2) the Applicant be ordered to pay the Insurer's costs thrown away, fixed in the amount of $3,000.00, in any event of the cause; (3) the new hearing dates be made peremptory upon the Applicant; and (4) interest on any amounts ultimately found to be overdue be stayed from May 17, 2006 until the date that the hearing actually commences. The Insurer also put the Applicant on notice that the Insurer wishes to cross-examine all of the assessors from Back to Health who participated in the preparation of the three assessments that are the subject matter of this Application.
The Applicant requested that the hearing be held prior to August 2006 as he will be moving to Alberta at that time. The parties agreed that the hearing should be set down for July 11, 12 and 13, 2006.
With respect to the ordered productions, the Applicant indicated that he expected that he could quickly produce a copy of his employment file with JW Car Care from May 25, 2002 to the present, as he continues to work for this employer. He also indicated that he has in his possession copies of his 2002 and 2003 income tax returns and could quickly reproduce those records and provide them to counsel for the Insurer. With respect to the clinical notes and records and curriculum vitae the Applicant was ordered to produce, he indicated that he is prepared to sign authorizations so that the Insurer can obtain those records without any further delay.
Result:
- The hearing is adjourned to July 11, 12 and 13, 2006 on the terms set out in the attached order. The decision and the terms were announced by me at the conclusion of the hearing.
May 19, 2006
Richard Feldman Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 82
FSCO A05-001553
BETWEEN:
BENYAM BELAYNEH
Applicant
and
KINGSWAY 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:
The hearing is adjourned to July 11, 12 and 13, 2006. These dates are peremptory upon the Applicant.
On or before June 16, 2006, the Applicant shall comply with the production orders contained in the pre-hearing letter of Arbitrator Sampliner, dated February 15, 2006 (or, for documents not within the possession, control or power of the Applicant, provide evidence of having made reasonable efforts to have complied with the said orders). The Insurer shall pay the reasonable costs of obtaining these documents.
The Applicant shall pay to the Insurer its expenses with respect to the attendances before me on May 15 and 17, 2006, fixed in the sum of $500.00 and payable in any event of the cause. These expenses shall not become due, however, until the resolution of this Application for Arbitration.
May 19, 2006
Richard Feldman Arbitrator
Date