Neutral Citation: 2007 ONFSCDRS 126

FSCO A06–000539

BETWEEN:

JAMA NUR ALI

Applicant

and

ACE INA INSURANCE

Insurer

Before: Richard Feldman

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

Appearances:

David Carranza for Mr. Ali

Elizabeth Iwata for ACE INA Insurance

Issues:

The Applicant, Jama Nur Ali, was allegedly injured in a motor vehicle accident on December 11, 2004. He applied for and received statutory accident benefits from ACE INA Insurance ("ACE INA"), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant's entitlement to accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Ali 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 Mr. Ali entitled to receive a non-earner benefit pursuant to s. 12 of the Schedule?
Pursuant to s. 14 of the Schedule, is Mr. Ali entitled to receive a medical benefit for chiropractic treatments recommended by York Active Rehab Centre in plans dated June 21, 2005 in the amount of $1,657.00, September 19, 2005 in the amount of $1,277.00 and November 21, 2005 in the amount of $232.00?
Is Mr. Ali entitled to attendant care benefits pursuant to s. 16 of the Schedule for the services of Hodo Nur in the amount of $666.00 per month for the period of December 12, 2004 through June 12, 2005 and $537.60 per month for the period from December 13, 2005 through December 12, 2006?
Pursuant to s. 22 of the Schedule, is Mr. Ali entitled to $50.00 per week for housekeeping and home maintenance services provided by Hodo Nur from June 13, 2005 through December 11, 2006?
Pursuant to s. 24 of the Schedule, is Mr. Ali entitled to payments for the cost ($420.00) of an in-home assessment by Back to Health?
Is Mr. Ali entitled to interest for the overdue payment of benefits pursuant to s. 46(2) of the Schedule?
Is ACE liable to pay Mr. Ali's expenses in respect of the arbitration under s. 282(11) of the Insurance Act?
Is Mr. Ali liable to pay ACE's expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

In addition, at the outset of the hearing Mr. Carranza requested that he be removed from the record as the Applicant's representative as there had been a breakdown in communication between himself and the Applicant.

Result:

David Carranza is removed from the record as the representative for Mr. Ali.
This application is dismissed.
The Applicant shall forthwith pay to ACE INA its expenses of this arbitration, fixed in the sum of $879.40.

EVIDENCE AND ANALYSIS:

On October 18, 2006, a pre-hearing discussion was held at the offices of the Commission. The Applicant attended the meeting, as did his agent, Mr. Carranza. At this meeting, the dates for the hearing were set as April 16, 17, 18 and 19, 2007.

Subsequently, Mr. Carranza lost contact with the Applicant. According to Mr. Carranza, the Applicant failed to respond to numerous letters sent by Mr. Carranza to the Applicant's last known address. Mr. Carranza received information in March 2007 that the Applicant no longer resided at that address. The Applicant also could not be reached at his last known telephone number. Mr. Carranza mailed to the Applicant at his last known address written notice of his intention to get off the record. Mr. Carranza states that Mr. Ali finally telephoned his office on April 11, 2007 and a meeting was set up for April 12, 2007. On April 12, 2007, Mr. Ali telephoned Mr. Carranza and cancelled that meeting. Mr. Carranza reminded the Applicant that the hearing was scheduled to commence on April 16, 2007.

According to Mr. Carranza, he has not heard from the Applicant since that telephone conversation on April 12, 2007.

On April 16, 2007, I waited until 10:30 a.m., to see if the Applicant would attend the hearing. He did not. It appears that there has been a breakdown in communication between Mr. Ali and Mr. Carranza. I therefore granted Mr. Carranza's request that he be permitted to remove himself from the record as representative for the Applicant and Mr. Carranza then departed.

The onus is upon the Applicant to prove entitlement to the relief claimed and no evidence whatsoever has been adduced in support of this application. Since the Applicant failed to attend the hearing and failed to adduce any evidence in support of his application, it appears that Mr. Ali is no longer interested in pursuing this matter. ACE INA therefore requested that this application be dismissed and that it be awarded its expenses of this proceeding. I find these requests by ACE INA to be reasonable. The application is dismissed.

EXPENSES:

Bearing in mind the criteria set out in the Expense Regulation (Section F of the Practice Code), the only relevant factor in this case is the complete success of the Insurer. Ms. Iwata estimated that she has spent at least 10 hours working on this file. Ms. Iwata advised me that she has approximately 15 years of experience. At the applicable legal aid rates, 10 hours of work would be equivalent to legal fees of $879.40. Ms. Iwata advised me that the Insurer is not seeking any disbursements related to this Application. Thus, the total amount claimed by the Insurer for its expenses of this arbitration is $879.40.

In the circumstances of this case, I find it appropriate and reasonable to grant to the Insurer the full amount of expenses it has requested.

June 21, 2007

Richard Feldman Arbitrator

Date

Ontario Insurance Commission / Commission des assurances de l’Ontario