Desai v. Personal Insurance Company of Canada, 2008 ONFSCDRS 163

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 163

FSCO A05-000378

BETWEEN:

DANYA DESAI

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON EXPENSES

Before: Edward Lee

Heard: May 23, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared on behalf of Ms Desai

Elizabeth Wilson for Personal Insurance Company of Canada

Issues:

The Applicant, Danya Desai, was injured in a motor vehicle accident on July 25, 2003. On June 23, 2006, I issued a decision on a preliminary issue relating to her claim for statutory accident benefits under the Schedule.¹ In that decision, I also awarded expenses to the Personal Insurance Company (“The Personal”). I informed the parties that if they were unable to agree on the amount of the expenses, they could request an assessment before me pursuant to Rules 75-79 of the Dispute Resolution Practice Code.

The issue in this further hearing is:

What is the amount of the expense award that should be made to the Personal Insurance Company in respect of this preliminary issue hearing?

Result:

The request for an assessment of expenses is dismissed.

The preliminary issue hearing was heard on February 9, 2006 and May 24, 2006. My decision of June 23, 2006 awarded expenses to the Personal and directed the parties to request an assessment before me pursuant to Rule 75-79 of the Dispute Resolution Practice Code should they be unable to agree on the amount of the expenses.

A request for an expense hearing was made by the Personal on August 13, 2007. An expense hearing was scheduled at the Financial Services Commission of Ontario for April 25, 2008. Nevertheless, on March 18, 2008, Mr. Patey, who had represented Ms. Desai at the preliminary issue hearing, wrote to the Financial Services Commission of Ontario requesting a motion seeking to withdraw from the proceeding. Mr. Patey also provided written reasons for his “Motion for discontinuance of retainer”, stating therein:

“Mr. Patey has not been able to contact the client for a long time. The client has moved from the address on the file and has not provided this office with a new address or telephone number to contact her on.”

On April 25, 2008, both Mr. Patey and Ms. Wilson appeared before me. Ms. Desai was not present. At the hearing, Mr. Patey reiterated his request to withdraw as Ms. Desai’s representative and added that he had been trying for months to communicate with Ms. Desai without success. Despite his efforts to reach her both by phone and through the mail, he had not been able to receive instructions from her in regard to the expense hearing. Ms. Wilson did not contest Mr. Patey’s motion although she did state that there had been previous conversations and discussions with Mr. Patey in regard to finalizing the expense issue.

Given that Mr. Patey had not been able to communicate with or to receive instructions from Ms. Desai for months, and had no current address or phone number for her, I granted Mr. Patey’s motion to withdraw as Ms. Desai’s representative.

Ms. Wilson then asked that I proceed with the expense issue, but I was not prepared to do so, given that I had no assurance that Ms. Desai had received any notice of the expense hearing. Instead, I adjourned the expense hearing and instructed Ms. Wilson to “personally serve” Ms. Desai with notice of the new date for the upcoming expense hearing. Mr. Patey also provided Ms. Wilson with his most recent contact information for Ms. Desai.

The expense hearing was re-convened on May 23, 2008. Ms. Desai again did not appear and the only person who attended before me was Ms. Wilson. On that date, Ms. Wilson provided me with a Brief for Assessment Expenses, additional documents for the expense hearing, and Affidavits of Service of Amanda Lymer and Robert Van Hezewyk. I also gave her the opportunity to make submissions in regard to the expense amount although I reserved my decision concerning the issue of the notice requirement.

After the hearing I reviewed the affidavits filed by Ms. Wilson. The affidavit of Amanda Lymer stated only that she served the Applicant with the Response to Application to Arbitration, Settlement Documents and Brief for Assessment of Expenses by sending them by regular mail on May 14, 2008 to Ms. Desai at 262 Baymill Blvd., Scarborough, Ontario M1T 2G7. The Affidavit of Mr. Van Hezewyk stated that on May 14, 2008 he served the Brief for Assessment of Expenses, Application Form E, Full and Final Release, Settlement Disclosure Notice, Bill of Costs (March 16, 2005 to May 24, 2006) and Bill of Costs (May 24, 2006 to April 10, 2008) by delivering true copies into the mailbox at 262 Bay Mills Blvd., Scarborough Ontario. He also stated that he made unsuccessful attempts to serve Ms. Desai personally at the same address on May 7, 8, 10, and 13, 2008.

I noted that the documents were in fact only placed in the same mailbox that has been listed as Ms. Desai’s address since her file was commenced before the Financial Services Commission of Ontario. There was no indication in the affidavits that any search or investigation was conducted to find a more recent address or telephone number for Ms. Desai. Nor was there any indication that the process servers attended at Ms. Desai’s address at different times of the day or attempted to speak with anyone at that address to obtain further information to find her. I was not satisfied that sufficient efforts had been made to provide notice to Ms. Desai of that expense hearing. I found that there had not been compliance of my April 25, 2008 direction to serve Ms. Desai personally.

On July 30, 2008, I wrote to Ms. Wilson and informed her that I was not convinced that Ms. Desai had received notice of the May 23, 2008 expense hearing. I also stayed Ms. Wilson’s request to hold an expense hearing, and further instructed Ms. Wilson to comply with my order to personally serve Ms. Desai with notice of the expense proceedings. In my letter, I allowed Ms. Wilson until September 4, 2008 to comply with my order, failing which I would dismiss her request for expenses.

The September 4, 2008 deadline has since passed without further communications from Ms. Wilson.

Therefore, I am dismissing the request for expenses.

October 6, 2008

Edward Lee

Arbitrator

Date