REASONS FOR DECISION

Before: Robert A. Kominar Heard: March 3, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Brown did not appear and was not legally represented Ognjen Miketic for Royal & Sun Alliance Insurance Company of Canada

Issues:

The Applicant, Victor Brown, claimed that he was injured in a motor vehicle accident on September 13, 2004. He applied for statutory accident benefits from Royal & Sun Alliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ Royal denied entitlement to weekly income replacement benefits as well as entitlement to payment for the cost of an In-Home Assessment. The parties were unable to resolve their disputes through mediation, and Mr. Brown 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. Brown entitled to receive a weekly income replacement benefit pursuant to sections 4 and 5 of the Schedule at the rate of $400.00, from September 20, 2004 and ongoing?
Is Mr. Brown entitled to payment for the cost of an In-Home Assessment prepared by Vocan, dated December 4, 2004, in the outstanding amount of $737.40, pursuant to section 24 of the Schedule?
Is Royal liable to pay Mr. Brown’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Brown liable to pay Royal’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Brown entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Brown’s claims for income replacement benefits, payment for the In-Home Assessment, interest and expenses are dismissed.
Royal is entitled to its expenses in the arbitration, fixed in the amount of $500.00 inclusive of GST.

EVIDENCE AND ANALYSIS:

This arbitration was set to commence on March 3, 2008, at 10:00 a.m. at the offices of the Financial Services Commission of Ontario in Toronto. Mr. Brown did not appear on that date, nor did any legal representative attend on his behalf. At the outset of the arbitration process Mr. Brown was represented by a paralegal agent, Mr. Justin Mariani. However, Mr. Mariani brought a motion to have himself removed as representative of record for Mr. Brown on February 8, 2008. That request was granted by order of Arbitrator Murray on the same date. Mr. Mariani at the time of the motion provided the Commission with the last known address for Mr. Brown, and the Commission mailed Mr. Brown a copy of Arbitrator Murray’s order. From a review of the Commission’s file it does not appear that any mail sent to Mr. Brown has been returned by the post office. I have no evidence before me to suggest that Mr. Brown was not aware of the hearing date.

The burden of proof in this arbitration resides with Mr. Brown, who must present evidence which persuades me on a balance of probabilities that he is entitled to the benefits he is claiming from Royal. As no evidence was presented by or on behalf of Mr. Brown his claims for income replacement benefits, payment for the cost of an In-Home Assessment, interest and expenses are therefore dismissed.

Beyond the conclusions I draw from Mr. Brown’s failure to attend and participate in the hearing Royal presented me with further grounds to dismiss Mr. Brown’s claims. In addition to the substantive issues in the arbitration there were preliminary issues to be argued in this matter relating to whether Mr. Brown had actually filed income tax returns for the relevant years he was claiming income replacement benefits, and if so whether he had produced documentation to support that conclusion to Royal. Mr. Miketic referred me to a letter from Canada Revenue Agency in the Insurer’s arbitration brief, dated October 3, 2007, addressed to Royal’s legal counsel, stating that Mr. Brown had not, according to their records, filed income tax returns for the taxation years 2003-2006. I further note that Mr. Mariani was allowed to step aside as representative of record, based on Mr. Brown failing to provide him with instructions on how to proceed after this letter from Canada Revenue Agency was received. In these circumstances, I find that it is highly improbable that Mr. Brown could have succeeded on an income replacement benefit claim. With regard to the In-Home Assessment, Mr. Miketic also directed me to the medical rehabilitation DAC, which concluded that the assessment was not reasonable or necessary in the circumstances. Without any evidence to the contrary I find it to be a reasonable inference to draw that Royal was justified in denying funding for this assessment.

EXPENSES:

Mr. Miketic requested that Royal be awarded expenses as a result of the costs it incurred in defending this arbitration. I find that Royal was completely successful in defending the claims which Mr. Brown asserted and that in the totality of the circumstances here Mr. Brown caused the Insurer to incur expenses needlessly and therefore that Royal is entitled to a reasonable amount of expenses. Mr. Miketic requested $500.00 as fixed expenses, which I find to be in line and reasonable given the outcome here and the fact that the Insurer had to respond to the application for arbitration, prepare for and attend at a pre-hearing and motion, process authorizations to obtain documentation related to Mr. Brown’s income tax status, and finally to prepare for and attend at the hearing. I therefore order that Mr. Brown pay Royal the sum of $500.00, inclusive of GST, for its expenses in this arbitration.

March 7, 2008

Robert A. Kominar Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2008 ONFSCDRS 41 FSCO A06-002653

BETWEEN:

VICTOR BROWN Applicant

and

ROYAL & SUN ALLIANCE 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:

Victor Brown’s claims for entitlement to income replacement benefits, funding for an In-Home assessment, interest and expenses are dismissed.
Victor Brown shall pay to Royal & SunAlliance Insurance Company of Canada the sum of $500.00, inclusive of GST, as its expenses in this arbitration.