Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 102
FSCO A06-000649
BETWEEN:
PUSPAKALA SELVARAJAH
Applicant
and
PEMBRIDGE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Maggy Murray
Heard:
April 19, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one appeared for Ms. Selvarajah
Richard Horst for Pembridge Insurance Company
Issues:
The Applicant, Puspakala Selvarajah, was injured in a motor vehicle accident on January 7, 2004. She applied for and received statutory accident benefits from Pembridge Insurance Company ("Pembridge"), payable under the Schedule.1 Pembridge refused to pay for various benefits. The parties were unable to resolve their disputes through mediation, and Ms. Selvarajah 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. Selvarajah entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule?
Is Ms. Selvarajah entitled to receive a medical benefit for treatments provided by Downsview Health Recovery claimed pursuant to section 14 of the Schedule?
Is Ms. Selvarajah entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Pembridge liable to pay Ms. Selvarajah's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Selvarajah liable to pay Pembridge's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Selvarajah entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
The Application for Arbitration is dismissed.
Ms. Selvarajan shall pay Pembridge's expenses of the arbitration fixed in the amount of $587.28 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 her representatives at the time.
On February 6, 2007, a pre-hearing was conducted at the Commission. Ms. Selvarajah was not in attendance although she was served with a Notice of Pre-Hearing. Because Ms. Selvarajah was absent, the pre-hearing was resumed at the Commission on March 28, 2007. Ms. Selvarajah 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 Ms. Selvarajah. The motion was adjourned to April 13, 2007 at the Commission. On April 13, 2007, no one appeared for Ms. Selvarajah, although she was served with a Notice of Motion.
By order of Arbitrator Muir dated April 13, 2007, Mazin Rooz Mazin was permitted to withdraw as Ms. Selvarajah's representatives.
On April 19, 2007, the date scheduled for the arbitration hearing, Ms. Selvarajah 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 Ms. Selvarajah. Therefore, no evidence was adduced in support of this Application. It appears that Ms. Selvarajah has abandoned this Application. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code - Fourth Edition (the "Code”), I heard submissions from Pembridge. Pembridge requested the dismissal of this Application and that Pembridge be awarded its expenses of this proceeding. In the absence of any evidence in support of this Application, Ms. Selvarajah has failed to meet her onus of proof and there is no case to which Pembridge 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:
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.
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 Ms. Selvarajah's claims for caregiver benefits, medical benefits, housekeeping and home maintenance expenses, interest and costs. Pembridge was completely successful. Ms. Selvarajah 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.
Ms. Selvarajah's conduct prolonged, obstructed and hindered the progress of the proceeding. Because Ms. Selvarajah was not present at the pre-hearing on February 6, 2007, the pre-hearing was resumed on March 28, 2007. Again Ms. Selvarajah failed to appear. In addition, Ms. Selvarajah 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 pre-hearing letter dated February 6, 2007, Ms. Selvarajah failed to attend an insurer's examination. This issue was not mediated3 and I was not given any information on the date of the hearing as to the date of the missed appointment or the cost of the missed appointment. Consequently, I cannot award Pembridge any expenses in respect of missed Insurer's Examinations.
Having regard to these criteria, I order Ms. Selvarajah to pay Pembridge'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. Horst appeared as counsel for Pembridge at the pre-hearings conducted on February 6, 2007 and March 28, 2007 and the motion conducted on April 13, 2007. Mr. Horst was called to the bar in 1989. Having regard to the criteria set out in Ontario Regulation 664, I allow a total of 6 hours (the amount of time Mr. Horst advised he spent for preparing Pembridge's Response to the Application for Arbitration, at the pre-hearings, motion and hearing) of Mr. Horst's time at the hourly rate of $92.34, the Legal Aid rate, which amount totals $554.04.
No disbursements were claimed.
The total allowable expenses of the arbitration proceeding are: $587.28 ($554.04 + 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 102
FSCO A06-000649
BETWEEN:
PUSPAKALA SELVARAJAH
Applicant
and
PEMBRIDGE 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:
This Application is dismissed.
Ms. Selvarajah shall pay Pembridge Insurance Company its expenses fixed in the sum of $587.28 (inclusive of GST).
May 23, 2007
Maggy Murray
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- at 9 (FSCO P97-00031, November 26, 1997)
- Which is a requirement pursuant to s.281(2) of the Insurance Act, R.S.O. 1990, c.I.8