Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 9
FSCO A04-000056

BETWEEN:

XIAO HONG YU
Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer

REASONS FOR DECISION

Before: Joyce Miller
Heard: September 6, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:
No one appeared for Ms. Yu
Jamie Pollack for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Xiao Hong Yu, was injured in a motor vehicle accident on November 25, 2002. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule¹ Royal terminated weekly caregiver benefits on June 25, 2003. The parties were unable to resolve their disputes through mediation, and Ms. Yu 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:

1. Is Ms. Yu entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule from June 25, 2003 and ongoing?
2. Is Ms. Yu entitled to receive a medical benefit in the amount of $4,178.02 claimed pursuant to section 14 of the Schedule?
3. Is Ms. Yu entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule from June 25, 2003 and ongoing?
4. Is Royal liable to pay Ms. Yu's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
5. Is Ms. Yu liable to pay Royal's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
6. Is Ms. Yu entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Ms. Yu is not entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule.
2. Ms. Yu is not entitled to receive a medical benefit in the amount of $4,178.02 claimed pursuant to section 14 of the Schedule.
3. Ms. Yu is not entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule.
4. Ms. Yu is not entitled to expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.
5. Ms. Yu shall pay Royal's expenses in the amount of $1,943.53 in respect of the arbitration under subsection 282(11) of the Insurance Act.

BACKGROUND:

The hearing commenced as scheduled on September 6, 2005 at 1:30 p.m. Ms. Yu 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 was delayed for a half hour and when Ms. Yu did not appear, 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 July 8, 2005. The pre-hearing letter of July 13, 2005 stated the following:

Ms. Yu was represented by Mr. Tam Tran of Accident Claims Management Inc. Mr. Tran is not currently an authorized SABS representative and is not permitted to represent Ms. Yu in proceedings before the Commission.

A pre-hearing was scheduled to be held on June 21, 2004. It did not proceed because neither Ms. Yu nor Mr. Tran attended. Ultimately, expenses for the failed June 21, 2004 pre-hearing were ordered against Mr. Tran personally.

On July 5, 2004, Mr. Tran wrote to the Commission indicating that he no longer represented Ms. Yu. Ms. Yu has not communicated with the Commission with respect to this issue. Mr. Tran did not follow the prescribed procedures for having himself removed from the record but, given the fact that he was not permitted to represent her in the first place, not much turns on his failure to follow the proper procedures to cease acting for her. On October 27, 2004, the Commission wrote to Ms. Yu to advise her that Mr. Tran could not act as her representative and to suggest that she might wish to retain a new representative. The Commission has received no response.

To the extent that it is necessary, I order that Mr. Tam Tran is hereby removed from the record as the representative of Ms. Yu.

The pre-hearing conference was re-scheduled for July 8, 2005 at 2:00 p.m. The Commission informed Ms. Yu of this appointment by written notice and attempted to communicate with Ms. Yu by telephone. To facilitate communication, the Commission arranged for a Cantonese interpreter to participate in the telephone conference call. At the time appointed for the pre-hearing conference, no one answered the telephone at the number last provided by Ms. Yu. It appears that Ms. Yu has abandoned this application. Royal does not anticipate that she will attend a hearing. I therefore proceeded with the pre-hearing conference in the absence of the Applicant. I identified the issues based upon the Application for Arbitration and set a date for the hearing convenient to Royal and to the Commission.

• The pre-hearing letter, which was sent to Ms. Yu, 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. Yu on July 21, 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. Yu had advised the Commission of any change in her address.

Based on the above information, I am satisfied that Ms. Yu was provided with proper notice of the date of the hearing. Accordingly, pursuant to the notice given to Ms. Yu, I proceeded to dispose of 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. Yu's 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 Rule 76;
• 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. Yu had not provided notice to the Insurer and or the Commission that she would not be pursuing her application for arbitration, or that she would not be participating in the arbitration hearing, has caused the Insurer unnecessary expenses. Accordingly, I find that Ms. Yu is not entitled to her expenses and Royal is entitled to its expenses.

After reviewing Royal's Bill of Costs, I find that Royal is entitled to its reasonable expenses in the amount of $1,943.53.

January 18, 2006

Joyce Miller
Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 9
FSCO A04-000056

BETWEEN:

XIAO HONG YU
Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer

ARBITRATION ORDER

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

1. The arbitration is dismissed.
2. Ms. Yu shall pay Royal's expenses in the amount of $1,943.53 in respect of the arbitration.

January 18, 2006

Joyce Miller
Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2This notice in the pre-hearing letter incorporates Rule 37 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.
3. 3This notice incorporates Rule 37 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.
4. 4The 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).
5. 5Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 275/03 made under the Insurance Act.