REASONS FOR DECISION

Before: Lloyd (J.R.) Richards Heard: July 13, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one for Mr. Akram Paul Barnes for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Imran Akram, was injured in a motor vehicle accident on December 18, 2005. He applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security National"), payable under the Schedule.¹ Security National terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Akram applied for arbitration at the Financial Services Commission of Ontario ("Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("Insurance Act").

The issues in this hearing are:

Is Mr. Akram entitled to receive a weekly income replacement benefit from one week post date of loss to date and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Akram entitled to receive a medical benefit in the amount of $8,848.91 for services at Prime Health Clinic Inc., pursuant to section 14 of the Schedule?
Is Mr. Akram entitled to receive a housekeeping and home maintenance benefit from the date of loss to date and ongoing, pursuant to section 22 of the Schedule?
Is Security National liable to pay a special award to Mr. Akram, pursuant to subsection 282(10) of the Insurance Act?
Is Security National liable to pay Mr. Akram's arbitration expenses in this matter?
Is Mr. Akram liable to pay Security National's arbitration expenses in this matter?

Result:

Mr. Akram's claims are dismissed.
Mr. Akram is liable to pay Security National's arbitration expenses in this matter.

EVIDENCE AND ANALYSIS:

Neither Mr. Akram, nor anyone representing him, appeared at the Commission on the hearing date of July 13, 2009.

The first pre-hearing in this matter took place on February 26, 2009. The pre-hearing arbitrator notes in the pre-hearing letter dated February 26, 2009, that Mr. Akram attended the pre-hearing. By correspondence dated March 25, 2009, Mr. Akram's counsel requested removal as solicitors of record. In affidavit evidence dated February 27, 2009 in support of the request, Mr. Akram's counsel noted that Mr. Akram did not attend the pre-hearing. At the hearing on July 13, 2009, Security National stated that, in fact, Mr. Akram did not attend the pre-hearing in this matter. I accept Security National's evidence in respect of Mr. Akram's non-attendance at the pre-hearing.

By letter dated April 3, 2009, the pre-hearing arbitrator in this matter allowed Mr. Akram's counsel to be removed as solicitors of record. The pre-hearing arbitrator relied on affidavit evidence, filed with the Commission, noting that Mr. Akram had been advised of the pre-hearing, yet had not attended. In addition, since some time prior to the pre-hearing, Mr. Akram had not contacted his counsel to give instructions. Mr. Akram's counsel provided to the Commission Mr. Akram's last known address and telephone number. Notice of the hearing was sent to Mr. Akram's last known address but was returned to the Commission.

At the commencement of the hearing in this matter I adjourned the hearing for thirty minutes, giving Mr. Akram an opportunity to appear. As Mr. Akram did not appear after the thirty minute adjournment, the hearing in this matter proceeded in his absence.

The onus is on the Applicant to prove his claims on a balance of probabilities. Hearing no evidence from Mr. Akram, and hearing nothing from Security National in the way of evidence that could support Mr. Akram's claims, I find that he has failed to meet the burden of proving his claims. Therefore, his claims for benefits are dismissed.

EXPENSES:

Security National submitted an expense claim in the amount of $2978.36 (combined legal fees and disbursements). I find that Mr. Akram, having failed to appear on this matter, and not succeeding on the issues in dispute, is disentitled to expenses. I also find that Security National is entitled to its reasonable expenses in the arbitration of this matter.

The bulk of Security National's expense claim is Mr. Barnes' fee of $87.26 per hour for 30 hours of time spent on the file. Mr. Barnes submitted that professional responsibility required him to spend time preparing for the hearing, even though it was unlikely that Mr. Akram would appear. I agree that Mr. Barnes' hands were tied. Even though Mr. Akram has been present at no time during the life of his arbitration file at the Commission, Mr. Barnes had to be prepared for any eventuality. However, since at least February 2009, except for Mr. Akram's counsel's unopposed request to be removed from the record, there has been little activity in this file. I find that fifteen hours of preparation time for Mr. Barnes is a reasonable expense claim. I find that, in total, Mr. Akram is liable to pay $1669.46 in expenses to Security National.

July 23, 2009

Lloyd (J.R.) Richards Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Akram's claims are dismissed.
Mr. Akram shall pay $1669.46 as fixed expenses to Security National.