Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 153
FSCO A06-000419
BETWEEN:
SVETLANA ZALUSKYY Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA Insurer
REASONS FOR DECISION
Before: Richard Feldman
Heard: June 22, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: David Levy for Mrs. Zaluskyy Jonathan Hale for Personal Insurance Company of Canada
Issues:
The Applicant, Svetlana Zaluskyy, was allegedly injured in a motor vehicle accident on February 17, 2005. She applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), 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 Mrs. Zaluskyy 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. Zaluskyy entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
What is the amount of weekly income replacement benefit that Mrs. Zaluskyy is entitled to receive pursuant to section 6 of the Schedule?
Is Mrs. Zaluskyy entitled to receive a medical benefit for the outstanding cost of treatment at Downsview Health Recovery, claimed pursuant to section 14 of the Schedule?
Is Mrs. Zaluskyy entitled to payments for the cost of a psychological examination by Century Assessment and Diagnostic Centre, pursuant to section 24 of the Schedule?
Is Mrs. Zaluskyy entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is Personal liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Zaluskyy?
Is Personal liable to pay Mrs. Zaluskyy’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mrs. Zaluskyy liable to pay Personal’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
In addition, at the outset of the hearing, Mr. Levy requested that his firm be removed from the record as the Applicant’s solicitors as there had been a breakdown in communication between themselves and the Applicant and they have not been able to obtain meaningful instructions from the Applicant.
Result:
Mazin Rooz Mazin are removed from the record as the solicitors for Mrs. Zaluskyy.
This application is dismissed.
The Applicant shall forthwith pay to Personal its expenses of this arbitration, fixed in the sum of $2,534.86.
EVIDENCE AND ANALYSIS:
A pre-hearing discussion in this case was scheduled to be held on January 3, 2007. On that date, the Applicant failed to attend and her representative could offer no explanation for her absence.
The pre-hearing discussion was therefore rescheduled to be held on March 30, 2007. The Applicant again failed to attend the pre-hearing conference on that date. Mr. Jaffer, student-at-law with the firm of Mazin Rooz Mazin advised me that his firm’s attempts to communicate with the Applicant had proven unsuccessful. At that time, the parties agreed upon the issues for arbitration and a hearing was scheduled for 2:00 p.m. on June 22, 2007 for the purpose of permitting the Applicant to explain her previous absences and to ascertain whether she intended to continue pursuing this matter.
I set out these facts in my pre-hearing letter of April 5, 2007 and I advised the Applicant in that letter that if she did not attend before the Commission on June 22, 2007, the application would likely be dismissed. I further advised Mrs. Zaluskyy that Personal had indicated that on June 22, 2007, it would be seeking an order for its expenses related to this application. Finally, I advised Mrs. Zaluskky that Mazin Rooz Mazin had advised me that it would be bringing a motion on June 22, 2007 to be removed from the record as her solicitors.
On June 22, 2007, I waited until 2:30 p.m., to see if the Applicant would attend the hearing. I am satisfied that both my pre-hearing letter and the motion material were delivered to the Applicant’s last known address. There is no reason, based upon the information before me, to believe that she failed to receive notice of these proceedings.
It appears that there has been a breakdown in communication between Mazin Rooz Mazin and Mrs. Zaluskyy. I therefore granted this firm’s request that it be removed from the record as representatives for the Applicant. Mr. Levy then departed.
The Applicant has failed to attend before the Commission on three separate occasions. She has failed to provide her representatives with instructions or to respond to communications from the Commission. 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. It appears to me that the Applicant is not interested in pursuing this matter and to permit it to proceed further would represent an abuse of process. Personal requested that this application be dismissed and that it be awarded its expenses of this proceeding. I find these requests by Personal to be reasonable. The application is dismissed.
EXPENSES:
Bearing in mind the criteria set out in the Expense Regulation (Section F of the Dispute Resolution Practice Code), the only relevant factor in this case is the complete success of the Insurer. Mr. Hale presented a detailed breakdown of the Insurer’s legal fees (at the appropriate legal aid rates) and disbursements for all work done in reviewing the Application, preparing a Response, conducting research, reviewing and preparing correspondence and other documentation, preparing for and attending two pre-hearing conferences and attending before me on June 22, 2007. In all of the circumstances of this case, I find it appropriate to fix the legal fees at $2,500.00 (inclusive of G.S.T.) and to allow disbursements of $34.86 (inclusive of G.S.T.), for a total amount of $2,534.86.
August 10, 2007
Richard Feldman Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 153
FSCO A06–000419
BETWEEN:
SVETLANA ZALUSKYY Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mazin Rooz Mazin is removed from the record as solicitors for the Applicant.
This application is dismissed.
The Applicant shall forthwith pay to Personal Insurance Company of Canada its expenses of this arbitration, fixed in the sum of $2,534.86.
August 10, 2007
Richard Feldman Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.