Financial Services Commission of Ontario
Neutral Citation: 2009 ONFSCDRS 108 FSCO A08-001182
BETWEEN:
LANG TRAN Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Robert Bujold Heard: July 3, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Ms. Tran represented herself, in person Nicholaus de Koning for Economical Mutual Insurance Company, by telephone conference
Issues:
The Applicant, Lang Tran, alleged that she was injured in a motor vehicle accident on May 2, 2006. She applied for and received various statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.1 Economical subsequently terminated payment of all benefits on the basis that Ms. Tran had not been involved in the accident. The parties were unable to resolve their disputes through mediation, and Ms. Tran applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Economical sought repayment of all accident benefits paid to Ms. Tran pursuant to section 47(1)(a) of the Schedule.
The issue in this proceeding is:
- On what terms and conditions, if any, should Ms. Tran be permitted to withdraw her application?
Result:
- Ms. Tran’s application is withdrawn, on consent, on the following terms:
a) Ms. Tran shall pay to Economical $200.00 per month for five consecutive months commencing on July 15, 2009 and concluding with the last payment on November 15, 2009; and
b) Economical agreed not to pursue its claim for repayment.
ANALYSIS:
A pre-hearing discussion in this matter was conducted on October 6, 2008. At that time, Ms. Tran was represented by Mr. Brent Vickar of the law firm Longley/Vickar LLP. At the pre-hearing, the parties identified the issues in dispute which included Ms. Tran’s claim for non-earner benefits and housekeeping. Economical’s claim for repayment of benefits paid to Ms. Tran in excess of $27,000.00 was also identified. Economical maintained that its investigation into the accident revealed that Ms. Tran had not been involved in the accident, alleging that she had “made egregious misrepresentations in order to obtain accident benefits to which she was not entitled.”2
The parties agreed that a preliminary issue hearing should proceed on the following question:
“Was Ms. Tran involved in an accident, pursuant to section 2 of the Schedule?”
The parties identified several witnesses that they intended to call at the preliminary issue hearing including, for Ms. Tran, “the other passenger in the insured vehicle, to be identified.” Ms. Tran undertook “to confirm the identity of the other passenger and to pass on this information to Economical as soon as possible.”3 The preliminary issue hearing was scheduled for March 10, 11 and 12, 2009 at the offices of the Commission.
By letter dated January 22, 2009, Mr. Vickar wrote to the Commission requesting that his firm be removed as solicitors of record for Ms. Tran. Mr. Vickar provided two reasons for the request. First, his firm required a retainer that Ms. Tran was unable to furnish. Second, he required Ms. Tran’s “cooperation in furnishing information as to the identity and location of witnesses whose evidence is material to the issues at the preliminary hearing and the Applicant has been unable or unwilling to communicate with us and furnish this information.” By letter dated February 24, 2009, Longley/Vickar confirmed that Ms. Tran consented to its removal as her representative and advised that Ms. Tran was seeking new counsel. The letter also advised that counsel for Economical “appears to have taken no position, he has simply asked to be advised whether we are successful in being removed.”
By letter dated February 27, 2009, I permitted the law firm of Longley/Vickar to be removed as Ms. Tran’s representative. I confirmed my understanding that Ms. Tran was seeking new counsel and reminded Ms. Tran and Economical’s counsel, Mr. de Koning, that the preliminary issue hearing was still scheduled to proceed for three days commencing March 10. I suggested that any adjournment request necessitated by the removal of Longley/Vickar as Ms. Tran’s representative should be made, in writing, without delay. Economical wrote to the Commission on March 3, 2009 to request an adjournment. By letter dated March 4, 2009, Arbitrator Sone adjourned the preliminary issue hearing to July 13, 14 and 15, 2009.
On April 9, 2009, the Commission received a one-page, handwritten fax letter of same date. The letter references “Lang Tran and Economical Mutual Insurance Co.” and “Commission file No. A08-001182-MMM” and is directed to the attention of the case administrator assigned to this file.
The letter provides as follows:
I’m writing to inform with you that: I would like to withdraw my case and hearing date on July 13, 14 and 15, 2009. Following reason: my health condition very bad and I’m having so much stressful relate to this matter, I want to give up. Would you please kindly to withdraw the files as soon as you can and please notify with me in the mail. Thank you very much for your helping. If you have any concerns you can call my niece her name is Lisa Nguyen. She will tell you about detail.”
The letter provides two telephone numbers for Ms. Nguyen and purports to be signed by “Lang Tran.”
By letter dated April 29, 2009, Economical wrote to the Commission, copied to Ms. Tran, advising that “[i]t remains Economical’s position that the Applicant was not involved in the subject accident” and “[i]t stands to reason that Economical’s position is that the arbitration was frivolous and vexatious.” The letter continues “while we are happy that there will be no further need for protracted legal proceedings, Economical does wish to seek an order for recovery of some of its legal expenses.”
By letter dated May 6, 2009, I advised the parties that the pre-hearing discussion would be resumed to discuss Ms. Tran’s request to withdraw her application and Economical’s request for an award of expenses as a term of the withdrawal. Economical was also advised to provide an account of the expenses being claimed, together with any supporting documentation, in advance of the resumed pre-hearing.
By letter dated June 30, 2009, Economical provided particulars of its claim for expenses, together with copies of partially redacted accounts and time dockets. Economical claimed 18 hours at Mr. De Koning’s legal aid rate of $87.26 per hour and a further 9.22 hours at $23.00 per hour for time incurred by his law clerk. The total amount claimed for legal fees, inclusive of G.S.T., was $1,871.87. Disbursements of $339.01, inclusive of G.S.T. and applicable P.S.T., were also claimed. The total claimed for fees, disbursements and applicable taxes was therefore $2,210.88.
Ms. Tran attended the pre-hearing resumption on July 3, 2009 with her adult son, Thinh Lee. The Commission provided an interpreter, Mr. Quang Le Duong, who provided translation services for Ms. Tran in Vietnamese and English. Given the reason for the resumption, Mr. de Koning was permitted to participate on behalf of Economical by telephone conference to avoid the additional expense that would be associated with his personal attendance from Waterloo.
At the commencement of the resumed pre-hearing, I sought to confirm Ms. Tran’s request to withdraw her application. Ms. Tran denied any knowledge of the handwritten fax letter dated April 9, 2009 that requested that her application be withdrawn. Ms. Tran further denied having a niece by the name Lisa Nguyen and denied being familiar with either of the two phone numbers contained in the fax for Ms. Nguyen. Ms. Tran further denied that it was her signature on the handwritten fax.4
In view of the foregoing, I inquired whether Ms. Tran intended to proceed with her application and the preliminary issue hearing scheduled for July 13, 14 and 15, 2009. Ms. Tran required an opportunity to consult with her son. Mr. de Koning indicated that he had relied on the handwritten fax to release his witnesses and would require a brief adjournment, if the matter were to proceed.
After taking time to consult with her son, Ms. Tran made a proposal for the withdrawal of her application on terms that would require her to pay $1,000.00 on account of Economical’s expenses. Payment would be made in five consecutive monthly instalments of $200.00 commencing July 15, 2009 and concluding on November 15, 2009. In exchange, Economical would agree not to pursue its claim for repayment of accident benefits paid to Ms. Tran. Economical agreed to the proposal and the parties requested that I permit the withdrawal on those terms. I agreed.
Ms. Tran’s application is withdrawn, on consent, on the following terms:
a) Ms. Tran shall pay to Economical $200.00 per month for five consecutive months commencing on July 15, 2009 and concluding with the last payment on November 15, 2009; and
b) Economical agreed not to pursue its claim for repayment.
July 30, 2009
Robert Bujold Arbitrator
Financial Services Commission of Ontario
Neutral Citation: 2009 ONFSCDRS 108 FSCO A08-001182
BETWEEN:
LANG TRAN Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. Tran’s application is withdrawn, on consent, on the following terms:
a) Ms. Tran shall pay to Economical $200.00 per month for five consecutive months commencing on July 15, 2009 and concluding with the last payment on November 15, 2009; and
b) Economical agreed not to pursue its claim for repayment.
July 30, 2009
Robert Bujold Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Schedule “A” of Economical’s Response by Insurer to an Application for Arbitration
- Pre-hearing letter dated October 6, 2008
- I note that the signature on the handwritten fax and the signature on the Application for Arbitration dated May 16, 2008 appear, to me, to be substantially similar.