Neutral Citation: 2009 ONFSCDRS 117 FSCO A08-000396

BETWEEN:

HANIEH PARVIN Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Joyce Miller Heard: June 9, 2009, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on July 17, 2009.

Appearances: Daniel Flatt for Mrs. Parvin Gus Triantafillopoulos for Allstate Insurance Company of Canada

Issues:

The Applicant, Hanieh Parvin, was injured in a motor vehicle accident on July 26, 2004. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate denied Mrs. Parvin's claim for housekeeping and medical treatment on the basis that she had delayed her application for accident benefits without a reasonable explanation and also that she had failed to file an application for arbitration within two years of Allstate denying her claim for medical treatment. The parties were unable to resolve their disputes through mediation, and Mrs. Parvin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Is Mrs. Parvin precluded from proceeding to arbitration because her application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and subsection 51(1) of the Schedule?
Should this preliminary issue hearing be adjourned? If not, should Mrs. Parvin's application for arbitration be dismissed?

Result:

The June 9, 2009 preliminary issue hearing is adjourned.
The adjourned preliminary issue hearing is set peremptory to Mrs. Parvin. If Mrs. Parvin does not appear for this proceeding, the proceeding shall be dismissed.
Mrs. Parvin shall pay Allstate $1,500 in costs forthwith, in any event of the cause.

BACKGROUND:

Allstate alleges the following facts:

Allstate sent Mrs. Parvin an application for accident benefits on July 27, 2004, the day after her accident. Although Mrs. Parvin did not submit her application for accident benefits to Allstate until 23 months after the accident, a treatment plan dated August 13, 2004 in the amount of $1,300 was approved by Allstate. Another treatment plan dated September 25, 2004 in the amount of $319.79 was denied by Allstate on October 1, 2004.
Mrs. Parvin applied for mediation on September 27, 2006, almost two years following the denial of the treatment plan. The application for arbitration was filed on March 3, 2008, more than two years after the denial and more than 90 days after the mediator's report, dated March 14, 2007.
In addition, for the first time, on July 11, 2006 Mrs. Parvin claimed housekeeping benefits dating back to May 2004, which was prior to the accident and up until the two year period for which there is a potential claim.
In a letter dated October 24, 2006, Mrs. Parvin's counsel explained that "the Application for Accident Benefits was filed with the delay for the reason that the client did not realize at that time how serious her injuries are and what consequences it may cause her health in general."
Allstate notes that an in-home assessment was carried out on August 5, 2004 which found that Mrs. Parvin was capable of performing all of her pre-accident housekeeping. In addition, Allstate notes that after the September 26, 2004 treatment plan was denied, there was an almost two year gap for a claim for benefits.

A preliminary issue hearing was scheduled to be heard on June 9, 2009 to determine if Mrs. Parvin is precluded from proceeding with her arbitration pursuant to sections 51 and 32 of the Schedule. Specifically, whether Mrs. Parvin is precluded from proceeding with her arbitration in that she has filed for arbitration beyond the two year limitation period and that she has failed to provide a reasonable explanation for the almost two year delay in submitting an application for arbitration.

At the start of the preliminary issue hearing, Mrs. Parvin's counsel advised that he had not been able to reach his client until she called him that morning and advised him of her inability to attend the hearing. He stated that he was not sure whether his client was out of town or on her way to Germany on the morning of the hearing. He was not clear about the purpose of the trip but believed she was going to Germany to visit her husband. He did not indicate whether there was any emergency or urgency for her having to take the trip, nor was he able advise when Mrs. Parvin will be returning from Germany. Mrs. Parvin's counsel, on behalf of Mrs. Parvin asked that the hearing be adjourned. Allstate opposed the adjournment on the basis that pursuant to Practice Note 9 of the Dispute Resolution Practice Code (the "Code") none of the pre-conditions for requesting and granting an adjournment had been fulfilled.

In addition to opposing the adjournment, Allstate requested that the preliminary issue hearing be dismissed.

I found it inappropriate on the limited information available to make a decision on either of the parties' requests, accordingly, the hearing was adjourned de facto and I requested the parties to provide me with submissions on their motions by July 17, 2009.

ALLSTATE'S SUBMISSIONS

Allstate submits that Mrs. Parvin did not comply with the Code in requesting her adjournment and accordingly the adjournment should be denied and the arbitration dismissed.

Allstate submits that Mrs. Parvin failed to comply with the notice requirements in that the request was never submitted in writing or in advance of the hearing. The Code requires seven days notice. Since the reason for the adjournment was that Mrs. Parvin had to go to Germany, there was opportunity to give advance notice. Moreover, Allstate submits, Mrs. Parvin failed to provide any grounds set out in Practice Note 9 as a reason for the adjournment. Allstate submits there was no suggestion of an emergency in respect of her trip to Germany. Moreover, Allstate pointed out that at the pre-hearing, six months prior, Mrs. Parvin advised that she was divorced.

In support of its position that this hearing should not be adjourned and that the case should be dismissed, Allstate relies on Syed and Allstate Insurance Company of Canada.² In Syed the applicant did not attend at the preliminary issue hearing. His counsel did attend. After the arbitrator confirmed that the applicant had been given proper notice of the hearing, she decided that she could dispose of the case without further notice to the applicant.

MRS. PARVIN'S SUBMISSIONS

Mrs. Parvin submitted that she had re-married since the time of the pre-hearing and that her husband lives in Germany; that she did not spend much time at the address (her mother's home) to which mail and reminders of the hearing were sent; that she only received the message about the hearing that weekend; and that she was unable to attend because she was extremely preoccupied with preparations for the trip to Germany to see her husband. Her departure date was scheduled for June 13, 2009 or on June 27, 2009. There was no supporting evidence of her June 13, 2009 reservation, but there was some documentation of her departure on June 27, 2009 by way of a copy of an e-mailed ticket.

Mrs. Parvin submits that her adjournment should be granted on the basis of a "personal emergency" which falls within the reasons to allow an adjournment in Practice Note 9 of the Code. Mrs. Parvin submits that the immediate upheaval in her life, her recent marriage and her preparations to move from Canada to Germany occupied the majority of her attention and were so distracting that she failed to properly diarize the dates of the hearing and receive the communications from her counsel and FSCO.

Mrs. Parvin submits that a refusal to adjourn this hearing would result in the complete dismissal of her claim. Accordingly, she requests that her explanation be accepted and be given the opportunity to present her case. Mrs. Parvin submits that, if the adjournment is granted she will comply with all of the conditions for an adjournment presented by Allstate on page 9 of its submissions. In addition, Mrs. Parvin submits that she gives her consent for Mazin Rooz Mazin to use its discretion to agree to a dismissal in the event that she missed another proceeding.

ANALYSIS AND FINDINGS

After receiving submissions from the parties, I sent the parties a letter on August 7, 2009, that the hearing is adjourned with reasons to follow. My order in the letter stated the following:

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

The June 9, 2009 preliminary issue hearing is adjourned.
The arbitration hearing, scheduled to commence on September 8, 2009, is vacated.
Within 10 days of receipt of this letter, the parties shall agree on a date for the preliminary issue hearing to be held within 90 days of receipt of this letter. If the parties cannot agree on a date, then I shall set a date for a hearing to be held within 90 days of this letter.
The preliminary issue hearing is set peremptory to Mrs. Parvin. If Mrs. Parvin does not appear for this proceeding, the proceeding shall be dismissed.
Mrs. Parvin shall pay Allstate $1,500 in costs forthwith, in any event of the cause.

My reasons for granting the adjournment and not dismissing the preliminary issue are as follows:

(1) The Adjournment Motion

Practice Note 9 of the Code provides three circumstances for which adjournments will be granted. These are:

in cases of personal emergencies, such as serious illnesses or deaths in the family;
for valid reasons relating to the hearing itself, such as an imminent settlement, or medical or other critical evidence that is unavoidably delayed; or
when a lawyer is involved in a trial or other proceeding that was scheduled to conclude before the start of the Commission proceeding and which has continued or been held over into the time scheduled for the Commission proceeding.

In addition, arbitrators exercising their discretion pursuant to Rule 81 of the Code can allow adjournments for other reasons.

Exercising my discretion pursuant to Rule 81 of the Code, my reasons for granting this adjournment are as follows.

I do not give much weight to Mrs. Parvin's submission that her non-attendance at the hearing was unavoidable and urgent. Mrs. Parvin's submissions, nevertheless, leaves the impression that her life at the time of the hearing date was very much in transition and chaotic. It is possible, although not necessarily excusable, that she failed to keep track of her hearing date. Albeit very late, she did contact her counsel to advise him she could not attend the hearing. Since this is the first request for an adjournment, and because at the time of the hearing date Mrs. Parvin's life appears to have been in a serious muddle, I am reluctant not to grant the adjournment. Accordingly, I exercise my discretion to allow the adjournment request with the terms that it be made peremptory to Mrs. Parvin and that should she not appear for this proceeding, the proceeding shall be dismissed. The latter is a term Mrs. Parvin has consented to.

Allstate has asked for $1,500 in costs forthwith in any event of the cause. In her submissions for the adjournment, Mrs. Parvin stated: "The applicant does not dispute and will comply with all of the conditions for an adjournment suggested by Mr. Triantafillopoulos on page 9 of his submissions." I agree that on the facts in this case, costs against Mrs. Parvin should be awarded. I find the sum of $1,500 to be reasonable. Accordingly, I find that Mrs. Parvin shall pay Allstate $1,500 in costs forthwith in any event of the cause.

(2) The Dismissal Motion

The adjournment having been granted makes the motion for dismissal moot. However, for the sake of completeness, I am providing my reasons for the motion on dismissal.

In its submissions, Allstate relies on the Syed case in support of its motion to dismiss the arbitration for failure on the part of Mrs. Parvin to attend the hearing. Syed, in my view, can be clearly distinguished from the present case. In Syed, the counsel for the applicant attended the hearing, the applicant did not. Mr. Syed's representative explained to the arbitrator "that he had attempted to contact Mr. Syed without success. He advised that the address provided to the Commission as Mr. Syed is correct." The arbitrator went on to find that she was satisfied that Mr. Syed was provided with reasonable notice of the hearing, which included notice that in his absence she may dispose of the case without further notice to him. She then proceeded to dispose of the case in his absence.

The present case is different. In Syed the representative had not succeeded in contacting the applicant, nor did the representative request an adjournment or oppose the dismissal on behalf of Mr. Syed. In the present case, Mrs. Parvin's counsel did succeed in contacting her, albeit the morning of the hearing, and although not fully cognizant of all the facts of why Mrs. Parvin was not available, he did request an adjournment on her behalf and opposed a dismissal of the arbitration.

Dismissing a case where the applicant is not present is a serious matter and should not be done lightly. While I appreciate the distinction of the facts made by Allstate in its submissions from the present case with the facts in the case of Kalin v. Ontario College of Teachers³, I, nevertheless, find that the principle stated in Kalin is applicable here.

In Kalin the applicant had been denied a hearing date of his selection. He was out of the country and was only provided with six weeks notice of the hearing date. He requested an adjournment a week before the hearing and advised of his expected date of return. The case of sexual abuse allegations against a teacher with 30 years of exemplary service proceeded in his absence. In finding that Mr. Kalin had been denied natural justice the Divisional Court stated:

It is a fundamental precept of our system of justice that an individual is entitled to be heard before a decision affecting his interest can be made against him. That does not mean that tribunals must cater to the convenience of the parties at all costs. However, the interests of fairness must at least be addressed and seriously considered before a tribunal embarks on a hearing with serious consequences for the person affected. The Tribunal in this case did not weigh the interests of justice and fairness in the balance before electing to proceed with the hearing.

In coming to my conclusion that Mrs. Parvin's case should not be dismissed, the principle enunciated in Kalin governs my decision.

This is not a case where the applicant has failed to attend the pre-hearing and has previously had one or more adjournment requests. This is the first adjournment request. Allstate can be compensated in costs for the missed hearing. A dismissal without hearing from Mrs. Parvin, however, would result in seriously affecting any rights that Mrs. Parvin may have for accident benefits.

Accordingly, I find that in balancing the serious consequences to Mrs. Parvin with any prejudice to Allstate leads me to conclude that in the interests of justice and fairness, the hearing should not be dismissed. Accordingly, for these reasons, Allstate's motion to dismiss is denied.

August 28, 2009

Joyce Miller Arbitrator

Financial Services Commission of Ontario