Neutral Citation: 2008 ONFSCDRS 150

FSCO A06-002466

BETWEEN:

KANGEYAN KRISHNAPILLAI

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby

Heard: September 15, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Arvin Gupta, Student-at-law, for Mr. Krishnapillai Marlett Dobson for Lombard General Insurance Company of Canada

Issues:

The Applicant, Kangeyan Krishnapillai, was injured in a motor vehicle accident on October 10, 2005. He applied for and was denied statutory accident benefits from Lombard General Insurance Company of Canada (“Lombard”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Krishnapillai 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. Krishnapillai 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 Mr. Krishnapillai is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Krishnapillai entitled to receive medical benefits claimed pursuant to section 14 of the Schedule?
Is Mr. Krishnapillai entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Mr. Krishnapillai entitled to payments for the cost of examinations, pursuant to section 24 of the Schedule?
Is Lombard liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Krishnapillai?
Is Lombard liable to pay Mr. Krishnapillai’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Krishnapillai liable to pay Lombard’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Krishnapillai entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

At the request of Mr. Krishnapillai the following issues were withdrawn:

(a) medical benefits;

(b) payments for the cost of examinations;

(d) interest on any over due benefits; and

(e) expenses in respect of the arbitration.

Mr. Krishnapillai shall not be paid a weekly income replacement benefit, pursuant to section 4 of the Schedule.
Mr. Krishnapillai shall not be paid for housekeeping and home maintenance services, pursuant to section 22 of the Schedule.

EVIDENCE AND ANALYSIS:

Mr. Krishnapillai was not in attendance at the hearing notwithstanding he had been served with a Notice of Hearing dated November 9, 2007. Mr. M. Sewerniuk attended on behalf of Lombard.

Mr. Krishnapillai sought an order withdrawing his claims for medical benefits, examination expenses, interest, a special award and expenses of the arbitration. Lombard did not oppose withdrawal of those claims. Therefore, medical benefits, examination expenses, interest, a special award and expenses of the arbitration shall be withdrawn as issues in the arbitration.

Mr. Krishnapillai tendered no evidence in support of his remaining claims for an income replacement benefit, quantification of the income replacement benefit and housekeeping and home maintenance benefits.

Lombard submitted that Mr. Krishnapillai has the burden of proving on a balance of probabilities that as a result of the accident, on October 10, 2005, he was substantially disabled from performing the essential duties of his employment and his housekeeping and home maintenance tasks. As well, Mr. Krishnapillai had the burden of establishing the quantum of the income replacement benefit he claimed. As Mr. Krishnapillai tendered no evidence in support of his claims, they should be dismissed.

I accept Lombard’s submission that Mr. Krishnapillai has the burden of establishing his claims on a balance of probabilities. In the absence of any evidence in support, Mr. Krishnapillai has failed to meet the burden of proof either in respect of his claim to entitlement to an income replacement benefit or its quantification. Therefore, I find that Mr. Krishnapillai is not entitled to receive an income replacement benefit.

Similarly, Mr. Krishnapillai has failed to meet the evidentiary burden in respect of his claim to a housekeeping and home maintenance benefit. Therefore, I find that Mr. Krishnapillai is not entitled to receive a housekeeping and home maintenance benefit.

EXPENSES:

Mr. Krishnapillai withdrew his claim for expenses. Lombard did not seek its expenses. Therefore, no order for expenses will be issued.

September 16, 2008

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2008 ONFSCDRS 150

FSCO A06-002466

BETWEEN:

KANGEYAN KRISHNAPILLAI

Applicant

and

LOMBARD GENERAL 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:

The following issues are withdrawn as issues for arbitration:

a) a medical benefit;

b) payments for the cost of examinations;

c) special award;

d) interest on any overdue benefits to which Mr. Krishnapillai might be entitled; and

e) Mr. Krishnapillai’s claim for expenses in respect of the arbitration.

Mr. Krishnapillai shall not be paid a weekly income replacement benefit.
Mr. Krishnapillai shall not be paid for housekeeping and home maintenance services.