Financial Services Commission of Ontario
Neutral Citation: 2007 ONFSCDRS 149
FSCO A05-001659 and A05-001660
BETWEEN:
BIBI SHAMEZA HOSSEIN and BIBI SAKINA HOSSEIN
Applicants
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Suesan Alves
Heard: January 29, 2007 at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: No-one attended for either of the Applicants Patrick Ho for TD Home and Auto Insurance Company
Issues:
The Applicants, Bibi Shameza Hossein and Bibi Sakina Hossein, were injured in a motor vehicle accident on August 24, 2003. They applied for arbitration in relation to their claims for statutory accident benefits, interest and expenses. TD Home & Auto disputed the relief sought by the Applicants and claimed its expenses. Neither Applicant attended the hearings. TD Home & Auto sought a dismissal of the arbitrations and withdrew its claims for expenses at the hearings.
The issues in this hearing with respect to Ms. Bibi Shameza Hossein are:
Is Ms. Bibi Shameza Hossein entitled to receive a weekly income replacement benefit from January 29, 2004, to date and ongoing, claimed pursuant to sections 4 and 5 of the Schedule?
What is the amount of weekly income replacement benefit that Ms. Bibi. Shameza Hossein is entitled to receive pursuant to section 6 of the Schedule?
Is Ms. Bibi Shameza Hossein entitled to payment of $100 per week between January 19, 2004 and August 24, 2005 for housekeeping and home maintenance services provided by Ms. Nazina Hossein, claimed pursuant to section 22 of the Schedule?
Is Ms. Bibi Shameza Hossein entitled to interest on overdue benefits pursuant to section 46(2) of the Schedule?
Is Ms. Bibi Shameza Hossein entitled to her expenses of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Result:
- Ms. Bibi Shameza Hossein’s arbitration application is dismissed. TD Home and Auto’s claim for expenses is withdrawn.
The issues in this hearing with respect to Ms. Bibi Sakina Hossein are:
Is Ms. Bibi Sakina Hossein entitled to receive a weekly income replacement benefit from January 29, 2004, to date and ongoing, claimed pursuant to sections 4 and 5 of the Schedule?
What is the amount of Ms. Bibi Sakina Hossein’s weekly income replacement benefit pursuant to section 6 of the Schedule?
Is Ms. Bibi Sakina Hossein entitled to interest on overdue benefits pursuant to section 46(2) of the Schedule?
Is Ms. Bibi Sakina Hossein entitled to expenses of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Result:
- Ms. Bibi Sakina Hossein’s arbitration application is dismissed. TD Home and Auto’s claim for expenses is withdrawn.
EVIDENCE AND ANALYSIS:
Background
The Applicants, by their counsel, submitted arbitration applications to the Financial Services Commission of Ontario in August 2005.
The Commission’s practice is to send copies of all correspondence to counsel as well as the parties. In these cases, the post office returned the Applicants’ copies of three out of four pieces of correspondence from the Commission, marked “Moved/Unknown Return to Sender.” However, the Notices of Hearing have not been returned. The Case Administrator wrote counsel for the Applicants for more current addresses in August 2005, however, he was unable to provide any new information. Thus, between August 2005 and January 2007, the Commission has largely been unable to communicate with the Applicants.
The Commission scheduled a pre-hearing discussion on both files for March 22, 2006. Neither Applicant attended. At the pre-hearing, counsel for the Applicants advised the pre-hearing arbitrator that he had been unable to locate either of his clients.
In November 2006, the pre-hearing arbitrator permitted counsel for the Applicants to withdraw as the Applicants’ representative, because they failed to provide their counsel with a current address or telephone number and consequently he was unable to properly represent them.
Counsel for the Applicants provided the Applicants’ last known addresses to the Commission. These were the same addresses which had been provided to the Financial Services Commission when the arbitration applications were filed. Counsel also provided each of their home telephone numbers and a cell number, all of which he stated were “incorrect.”
The pre-hearing arbitrator combined both arbitrations because he concluded that the proceedings involved common questions of fact and law, and counsel for the parties consented to this step. The hearings were scheduled for the same date, and subject to the order of the hearing arbitrator, were to be held one after the other.
The hearings
The arbitration hearings commenced as scheduled on January 29, 2007. Neither Applicant was present. I recessed the hearings for fifteen minutes. During the recess, the case administrator attempted to reach each of the Applicants. She reported the results of her efforts as the following:
The telephone number for Ms. Bibi Shameza Hossein was initially busy. After trying the number on two further occasions, the case administrator heard a recorded message which stated “Please leave a message.” However, there was nothing in the message which identified the person for whom the message would be left. The case administrator left a message informing Ms. Hossein that her hearing was scheduled to begin today and asking her to return the call, however, she did not receive a response from this Applicant.
The telephone number for Ms. Bibi Sakina Hossein was answered with a voice mail message which stated “Jane is not available.” There was no option which would allow the case administrator to leave a message.
The case administrator also called the cell telephone number provided by counsel for the Applicants. That call was answered with “19TL. The Telus mobility client you are trying to reach is not available. Please try your call later.”
I resumed the hearings. Counsel for the Insurer advised that he had not heard from either Applicant.
Notices of the hearings
I was satisfied that the contents of the Notices of Hearing which were sent to the Applicants comply with the requirements of section 6(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, (“SPPA”), because they contain a reference to the statutory authority under which the hearings would be held, state the time, place and purpose of the hearing. They also state that if a party does not attend the hearing, the tribunal may proceed in their absence and they will not be entitled to further notice of the proceedings.
Section 6(1) of the SPPA and Rule 37.5 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003, (“the Code”) require the Commission to give parties to a proceeding “reasonable notice of the hearing.”
Rule 9 of the Code places the onus on the parties to keep the Commission informed of their current address and contact details. Rule 5.7 of the Code provides that where the Dispute Resolution Group is required to deliver a document, “delivery will be deemed to have occurred where the document is sent to the last known address of the party, contained in the records of the Dispute Resolution Group, using one of the methods of delivery permitted by Rule 7.”
In these cases, Notices of the Hearings were sent to the last known addresses contained in the records of the Financial Services Commission of Ontario by ordinary mail, one of the methods of delivery permitted by Rule 7. Given the deeming provision of Rule 5.7 of the Code, I find that the Commission’s obligation to provide notice of the hearings has been met. I also find that in these circumstances the Commission gave reasonable notice of the hearings.
The hearings
Section 7(1) of the SPPA states “Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.”
I proceeded with the hearings. The Insurer sought a dismissal of the arbitrations and withdrew its claims for expenses at the arbitration hearings.
The claims of Ms. Bibi Shameza Hossein
Ms. Bibi Shameza Hossein claimed income replacement benefits at the rate of $400 per week including post 104-week benefits. She also claimed housekeeping and home maintenance benefits, interest on overdue benefits and her expenses of the arbitration
This Applicant tendered no evidence at the hearing. The Insurer tendered no evidence. I ruled that this Applicant had failed to discharge her burden of proof in relation to her claims for statutory accident benefits and interest she advanced in the arbitration. Ms. Bibi Shameza Hossein’s claims for income replacement benefits, the amount of those benefits, for housekeeping benefits, and interest are dismissed.
Ms. Bibi Shameza Hossein claimed her expenses of the arbitration. I dismiss her claim for expenses due to her lack of success and her abandonment of the arbitration.
Counsel for the Insurer advised that in the circumstances of this case, TD Home & Auto was not pursuing its claim for expenses against Ms. Hossein. The Insurer’s claim for expenses is therefore withdrawn.
The claims of Ms. Bibi Sakina Hossein
Ms. Bibi Sakina Hossein claimed income replacement benefits in the amount of $400 per week including post-104 week benefits, interest and her expenses of the arbitration. This Applicant tendered no evidence at the hearing. The Insurer tendered no evidence. I ruled that the Applicant had failed to discharge her burden of proof in relation to her claims for statutory accident benefits and interest she advanced in the arbitration under the Schedule. For these reasons, I dismissed those claims.
Ms. Hossein claimed her expenses of the arbitration. I dismiss her claim for expenses due to her abandonment of the arbitration and her lack of success. Counsel for the Insurer advised that in the circumstances of this case, TD Home & Auto was not pursuing its claim for expenses. The Insurer’s claim for expenses was therefore withdrawn against this Applicant.
August 3, 2007
Suesan Alves Date Arbitrator
Financial Services Commission of Ontario
Neutral Citation: 2007 ONFSCDRS 149
FSCO A05-001659 and A05-001660
BETWEEN:
BIBI SHAMEZA HOSSEIN and BIBI SAKINA HOSSEIN
Applicants
and
TD HOME AND AUTO 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:
Ms. Bibi Shameza Hossein’s arbitration application is dismissed. TD Home and Auto Insurance Company’s claim for expenses against this Applicant is withdrawn.
Ms. Bibi Sakina Hossein’s arbitration application is dismissed. TD Home and Auto Insurance Company’s claim for expenses against this Applicant is withdrawn.
August 3, 2007
Suesan Alves Date Arbitrator