Somasundaram Sellan v. Motor Vehicle Accident Claims Fund, 2007 ONFSCDRS 101

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 101

FSCO A06-000648

BETWEEN:

SOMASUNDARAM SELLAN

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

REASONS FOR DECISION

Before:

Maggy Murray

Heard:

April 16, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one appeared for Mr. Sellan

Lorraine Takacs for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Somasundaram Sellan, was injured in a motor vehicle accident on January 7, 2004. He applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund ("MVAC Fund"), payable under the Schedule.¹ MVAC Fund refused to pay for various benefits.

The parties were unable to resolve their disputes through mediation, and Mr. Sellan 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 Mr. Sellan entitled to receive a non-earner benefit pursuant to section 12 of the Schedule?

2. Is Mr. Sellan entitled to receive a medical benefit for treatments provided by Downsview Health Recovery claimed pursuant to section 14 of the Schedule?

3. Is Mr. Sellan entitled to attendant care benefits pursuant to section 16 of the Schedule?

4. Is Mr. Sellan entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?

5. Is MVAC Fund liable to pay Mr. Sellan's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is Mr. Sellan liable to pay MVAC Fund's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

7. Is Mr. Sellan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

1. The Application for Arbitration is dismissed.

2. Mr. Sellan shall pay MVAC Fund's expenses of the arbitration fixed in the amount of $978.80 inclusive of GST.

EVIDENCE AND ANALYSIS:

The arbitration record discloses the following facts:

The Application for Arbitration was filed by the Applicant with the Commission on March 27, 2006. Mazin & Rooz (as it then was) was acting as his representatives at the time.

On February 6, 2007, a pre-hearing was conducted at the Commission. Mr. Sellan was not in attendance although he was served with a Notice of Pre-Hearing. Because Mr. Sellan was absent, the pre-hearing was resumed at the Commission on March 28, 2007. Mr. Sellan did not appear on March 28, 2007. At this resumption of the pre-hearing, Mazin Rooz Mazin brought a motion for removal from the record on the basis that they were unable to communicate with Mr. Sellan. The motion was adjourned to April 13, 2007 at the Commission. On April 13, 2007, no one appeared for Mr. Sellan, although he was served with a Notice of Motion.

By order of Arbitrator Muir dated April 13, 2007, Mazin Rooz Mazin was permitted to withdraw as Mr. Sellan's representatives.

On April 16, 2007, the date scheduled for the arbitration hearing, Mr. Sellan failed to attend before the Commission although served with a Notice of Hearing at his last known address filed with the Commission. No one appeared on behalf of Mr. Sellan. Therefore, no evidence was adduced in support of this Application. It appears that Mr. Sellan has abandoned this Application. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code - Fourth Edition (the "Code"), I heard submissions from MVAC Fund. MVAC Fund requested the dismissal of this Application and that MVAC Fund be awarded its expenses of this proceeding. In the absence of any evidence in support of this Application, Mr. Sellan has failed to meet his onus of proof and there is no case to which MVAC Fund 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 March 27, 2006 (i.e., 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:

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

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

4. Whether novel issues are raised in the proceeding.

5. 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.

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

7. Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.

I consider each of the six criteria in order.

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

The hearing concerned Mr. Sellan's claims for non-earner benefits, medical benefits, attendant care benefits, housekeeping and home maintenance expenses, interest and costs. MVAC Fund was completely successful. Mr. Sellan 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.

Mr. Sellan's conduct prolonged, obstructed and hindered the progress of the proceeding. Because Mr. Sellan was not present at the pre-hearing on February 6, 2007, the pre-hearing was resumed on March 28, 2007. Again Mr. Sellan failed to appear. In addition, Mr. Sellan was not present for the motion heard on April 13, 2007.

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

This Application was unnecessary.

6. Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.

According to the Report of Mediator, Mr. Sellan did not make himself available for Insurer's Examinations. Although this issue was mediated³ and I was given information on the date of the hearing as to the date of the missed appointment⁴ and the cost⁵ of the missed appointment, I find that Mr. Sellan was not provided with any notice⁶ that this was an issue in this Arbitration. Consequently, I cannot award MVAC Fund any expenses in respect of missed Insurer's Examinations.

Having regard to these criteria, I order Mr. Sellan to pay MVAC Fund'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:

1. For all services performed before an arbitration, appeal, variation or revocation hearing.

2. For the preparation for an arbitration, appeal, variation or revocation hearing.

3. For attendance at an arbitration, appeal, variation or revocation hearing.

4. 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. Ms. Takacs appeared as counsel for MVAC Fund at the pre-hearings conducted on February 6, 2007 and March 28, 2007 and the motion conducted on April 13, 2007. Ms. Takacs was called to the bar in 1996. Having regard to the criteria set out in Ontario Regulation 664, I allow a total of 10 hours (the amount of time Ms. Takacs advised she spent for preparing MVAC Fund's Response to the Application for Arbitration, at the pre-hearings, motion and hearing) of Ms. Takacs' time at the hourly rate of $92.34, the Legal Aid rate, which amount totals $923.40.

No disbursements were claimed.

The total allowable expenses of the arbitration proceeding are: $978.80 ($923.40 + GST at 6%).

May 23, 2007

Maggy Murray

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 101

FSCO A06-000648

BETWEEN:

SOMASUNDARAM SELLAN

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

ARBITRATION ORDER

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

1. This Application is dismissed.

I. Mr. Sellan shall pay the Motor Vehicle Accident Claims Fund its expenses fixed in the sum of $978.80 (inclusive of GST).

May 23, 2007

Maggy Murray

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2at 9 (FSCO P97-00031, November 26, 1997)
3. 3Which is a requirement pursuant to s.281(2) of the Insurance Act, R.S.O. 1990, c.I.8
4. 4September 15, 2005
5. 5$750
6. 6In, for example, any of the pre-hearing letters.