Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 10

FSCO A05-002891

BETWEEN:

ROBINA YASIN

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: November 29, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one appeared for Mrs. Yasin

Jason Kerr for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Robina Yasin, claimed she was injured in a motor vehicle accident on May 9, 2004. She applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security"), payable under the Schedule.¹ Security terminated housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Yasin 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. Mrs. Yasin entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Security liable to pay Mrs. Yasin's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mrs. Yasin liable to pay Security's expenses in respect of the arbitration?
Is Mrs. Yasin entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

The Application for Arbitration is dismissed.
Mrs. Yasin shall pay Security's expenses of the arbitration fixed in the amount of $1,703.11.

EVIDENCE AND ANALYSIS:

The arbitration record discloses the following facts:

The Application for Arbitration was filed by the Applicant with the Commission on December 15, 2005. David Carranza was acting as her agent at the time.

On July 5, 2006, a pre-hearing was conducted at the Commission. Mrs. Yasin was not in attendance although she was served with a Notice of Pre-Hearing. Because Mrs. Yasin was absent, the pre-hearing was resumed at the Commission on July 28, 2006. Mrs. Yasin did not appear on July 28, 2006. At this resumption of the pre-hearing, Mr. Carranza brought a motion for removal from the record on the basis that he was unable to communicate with Mrs. Yasin. The motion was adjourned to September 15, 2006 by telephone conference. Mrs. Yasin could not be reached when the Commission telephoned her, although she was served with a Notice of Motion.

By order of Arbitrator Ashby dated September 15, 2006, Mr. Carranza was permitted to withdraw as Mrs. Yasin's representative.

On November 29, 2006, the date scheduled for the arbitration hearing, Mrs. Yasin failed to attend before the Commission although served with a Notice of Hearing at her last known address filed with the Commission. No one appeared on behalf of Mrs. Yasin. Therefore, no evidence was adduced in support of this Application. It appears that Mrs. Yasin has abandoned this Application. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code - Fourth Edition (the "Code"), I heard submissions from Security. Security requested the dismissal of this Application and that Security be awarded its expenses of this proceeding. In the absence of any evidence in support of this Application, Mrs. Yasin has failed to meet her onus of proof and there is no case to which Security need respond. This Application is dismissed.

EXPENSES:

Subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8 (as amended), states:

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.

The criteria for determining entitlement to expenses of the arbitration proceeding are set out in s.12 of Ontario Regulation 664, R.R.O. 1990, as amended ("the expense regulation").

According to Pinto and General Accident Assurance Co. of Canada,² the expense regulation that applies is the regulation in effect at the time the Application for Arbitration was commenced. On December 15, 2005 (ie., the date the Application for Arbitration was commenced), s.12 of the expense regulation read as follows:

12(2) An arbitrator shall, under subsection 282(11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

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.

I consider each of the five criteria in order.

1. Each party's degree of success in the outcome of the proceeding.

The hearing concerned Mrs. Yasin's claim for housekeeping and home maintenance expenses, interest and costs. Security was completely successful. Mrs. Yasin was completely unsuccessful.

2. Any written offers to settle made in accordance with subsection (3).

Neither party made any written offer to settle.

3. Whether novel issues are raised in the proceeding.

There was nothing novel about the issues raised in this proceeding.

4. 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.

Mrs. Yasin's conduct prolonged, obstructed and hindered the progress of the proceeding. Because Mrs. Yasin was not present at the pre-hearing on July 5, 2006, the pre-hearing was resumed on July 28, 2006. Again Mrs. Yasin failed to appear. In addition, Mrs. Yasin could not be contacted for the motion heard on September 15, 2006.

5. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

This Application was unnecessary.

Having regard to these criteria, I order Mrs. Yasin to pay Security's expenses of this hearing.

Amount of Expenses:

The amount of expenses and disbursements which I may award are set out in s. 3 of the Schedule to Ontario Regulation 664 which states:

3(1) The legal fees payable by the insured person or the insurer for the following matters may be awarded:

For all services performed before an arbitration, appeal, variation or revocation hearing.
For the preparation for an arbitration, appeal, variation or revocation hearing.
For attendance at an arbitration, appeal, variation or revocation hearing.
For services subsequent to an arbitration, appeal, variation or revocation hearing.

(2) The number of hours for which legal fees may be awarded shall be determined by the arbitrator, having regard to the criteria set out in subsection 12(2) of this Regulation.

The hearing concluded in less than a half hour. Mr. David Silverstone appeared as counsel for Security at the pre-hearings conducted on July 5, 2006 and July 28, 2006 and the motion conducted on September 15, 2006. He was called to the bar in 1996. Having regard to the criteria set out in Ontario Regulation 664, I allow a total of 15 hours of Mr. Silverstone's time at the hourly rate of $92.34, the Legal Aid rate (6 hours initial file review, 3 hours on each of July 5th, July 28th and September 15, 2006), which amount totals $1,385.10.

Mr. Jason Kerr appeared as counsel for Security at the hearing conducted on November 29, 2006. He was called to the bar in 2006. I allow Security 3 hours of Mr. Kerr's time at the hourly rate of $73.87, which is the Legal Aid rate, which amount totals $221.61.

No disbursements were claimed.

The total allowable expenses of the arbitration proceeding are: $1,703.11 ($1,385.10 [Mr. Silverstone's time] + $221.61 [Mr. Kerr's time] + GST at 6%).

January 24, 2007

Maggy Murray Arbitrator

Date