Cumarasam Maheswaran v. Zurich Insurance Company (Commercial Business), 2009 ONFSCDRS 28

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 28

FSCO A06-000759

BETWEEN:

CUMARASAM MAHESWARAN

Applicant

and

ZURICH INSURANCE COMPANY (COMMERCIAL BUSINESS)

Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby

Heard: January 5, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Maheswaran

Maria Mikhailitchenko for Zurich Insurance Company (Commercial Business)

Issues:

The Applicant, Cumarasam Maheswaran, was injured in a motor vehicle accident on January 17, 2005. He applied for and received statutory accident benefits from Zurich Insurance Company (Commercial Business) (“Zurich”), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits and housekeeping and home maintenance benefits. It denied certain other benefits. The parties were unable to resolve their disputes through mediation, and Mr. Maheswaran 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. Maheswaran precluded from proceeding to arbitration, in respect of his claim for an income replacement benefit, by operation of subsection 50(b) of the Schedule?
Is Mr. Maheswaran entitled to a weekly income replacement benefit in the amount of $400.00, less any amounts paid by Zurich, from January 24, 2005 to August 14, 2005 pursuant to section 4 of the Schedule?
Is Mr. Maheswaran entitled to attendant care benefits in the amount of $1,000.00 per month, from January 17, 2005 to June 2005, pursuant to section 16 of the Schedule?
Is Mr. Maheswaran entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week, less any amounts paid by Zurich, from March 16, 2005 to August 2005, pursuant to section 22 of the Schedule?
Is Mr. Maheswaran entitled to payment, in the amount of $210.00, for an in-home assessment conducted by Century Assessments, pursuant to section 24 of the Schedule?
Is Zurich liable to pay Mr. Maheswaran’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Maheswaran liable to pay Zurich’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Maheswaran entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Maheswaran may proceed to arbitration in respect of his claim for an income replacement benefit.
Mr. Maheswaran is not entitled to a weekly income replacement benefit.
Mr. Maheswaran is not entitled to an attendant care benefit.
Mr. Maheswaran is not entitled to housekeeping and home maintenance benefits.
Mr. Maheswaran is not entitled to payment, in the amount of $210.00, for an in-home assessment conducted by Century Assessments.
Zurich is not liable to pay Mr. Maheswaran’s expenses in respect of the arbitration.
Mr. Maheswaran is liable to pay Zurich’s expenses in respect of the arbitration in the amount of $1,311.08.
Mr. Maheswaran is not entitled to interest for the overdue payment of benefits.

PROCEDURAL HISTORY:

On March 28, 2006, Mr. Maheswaran filed an Application for Arbitration with the Commission.

On December 18, 2006, Counsel for Mr. Maheswaran requested an adjournment of the pre-hearing scheduled for that day. The adjournment was granted notwithstanding the short notice.

On August 2, 2007, a rescheduled pre-hearing discussion was convened. Zurich’s representative and its counsel attended. Mr. Maheswaran did not attend but was represented by counsel. A motion date was set for November 30, 2007 to hear Zurich’s motion to dismiss the Application.

On November 27, 2007, Zurich filed its submissions in respect of its motion to dismiss.

On November 30, 2007, the pre-hearing was resumed. Mr. Maheswaran attended by telephone from Beijing, China. He advised Zurich and the Commission that he wished to terminate his representative’s retainer and represent himself or retain new counsel. The hearing was scheduled for four days commencing July 28, 2008 when Mr. Maheswaran expected to be available to attend in person.

On December 7, 2007, the pre-hearing Arbitrator wrote to the parties. He confirmed that during the pre-hearing on November 30, 2007, Mr. Maheswaran had undertaken to provide the Commission and Zurich with written notice of his intention to represent himself. He had failed to provide that written notice and the pre-hearing Arbitrator ordered that the firm of Mazin Rooz Mazin be removed as solicitors of record.

On March 13, 2008, the Commission was advised by Zurich’s counsel that it understood that Mr. Maheswaran was not going to be able to attend the hearing scheduled to commence on July 28, 2008.

On April 11, 2008, the pre-hearing was resumed by teleconference. Mr. Maheswaran participated and represented himself. The hearing was adjourned from four days commencing July 28, 2008 to four days commencing on January 5, 2009, when Mr. Maheswaran expected to be in Toronto.

In a letter dated April 14, 2008, Mr. Maheswaran was advised that the rescheduled hearing could proceed in his absence if he failed to attend. As well, the pre-hearing Arbitrator issued an Order requiring Mr. Maheswaran to provide Zurich with authorizations necessary to its obtaining documents relevant to the issues to be arbitrated.

On April 23, 2008, the Commission issued a Notice of Rescheduled Hearing. The notice was sent to Mr. Maheswaran at the address he provided to the Commission.

On December 30, 2008, Zurich filed its Submissions seeking an Order dismissing the arbitration and its expenses.

Procedural Order:

On January 5, 2009 at 10:00 a.m. the hearing was convened before me. Zurich was represented by its counsel. No one appeared for Mr. Maheswaran. A German interpreter, retained by the Commission was also present. I recessed the proceedings to 10:30 a.m. to give Mr. Maheswaran additional time to appear. At 10:40 a.m. the hearing was resumed. Mr. Maheswaran was not in attendance.

Being satisfied that Mr. Maheswaran had notice of the hearing and knew that it could proceed in his absence I ordered that the hearing proceed.

EVIDENCE AND ANALYSIS:

Parties are required to prove their claims on a balance of probabilities.

Income Replacement Benefits:

Preliminary Issue:

Zurich disputed Mr. Maheswaran’s right to proceed to arbitration in respect of his claim for an income replacement benefit by operation of subsection 50(b) of the Schedule which provides:

50 An insured person shall not commence a mediation proceeding under section 280 of the Act unless,

(b) the insured person, if he or she was required to undergo a designated assessment under section 43, has undergone the designated assessment and has complied with that section.

Zurich has the burden of establishing that Mr. Maheswaran was required to undergo a designated assessment and had failed to attend the assessment on a balance of probability. It did not enter evidence to support its claim. Therefore, I find that Mr. Maheswaran was entitled to proceed to arbitration of his claim for an income replacement benefit.

Entitlement to Income Replacement Benefits:

Mr. Maheswaran failed to present evidence in support of his entitlement to a weekly income replacement benefit in the amount of $400.00, less any amounts paid by Zurich, from January 24, 2005 to August 14, 2005. Therefore, I find that Mr. Maheswaran has failed to establish his entitlement on a balance of probabilities and is not entitled to a weekly income replacement benefit.

Attendant Care Benefits and Housekeeping and Home Maintenance Benefits and Examination Expenses:

Mr. Maheswaran claims an attendant care benefit of $1,000.00 per month, from January 17, 2005 to June 2005, pursuant to section 16 of the Schedule. As well, he claims housekeeping and home maintenance benefits in the amount of $100.00 per week, less any amounts paid by Zurich, from March 16, 2005 to August 2005, pursuant to section 22 of the Schedule. Mr. Maheswaran also claims an examination expense pursuant to section 24 of the Schedule in the amount of $210.00 in respect of an in-home assessment conducted by Century Assessments.

Mr. Maheswaran failed to produce evidence in support of his claims for these benefits. Therefore, he failed to establish his entitlement on a balance of probabilities and is not entitled to an attendant care benefit, a housekeeping and home maintenance benefit or payment of the examination expense.

INTEREST:

Mr. Maheswaran claimed entitlement to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule. As there is no overdue payment of a benefit, Mr. Maheswaran is not entitled to interest.

EXPENSES:

Both parties claimed their expenses pursuant to subsection 282(11) of the Insurance Act.

The procedural history reflects a pattern of failure, on the part of Mr. Maheswaran, to participate meaningfully in the arbitration process. Mr. Maheswaran failed to comply with his undertaking to confirm in writing that he intended to represent himself. Mr. Maheswaran failed to comply with the order to provide releases. Mr. Maheswaran failed to attend the hearing notwithstanding it was scheduled and rescheduled on dates convenient to him. Mr. Maheswaran’s conduct caused Zurich to incur unnecessary expense in defending his claim. Therefore, I find that Zurich is entitled to its expenses of the arbitration.

The expenses set out in its Bill of Costs totalling $1,311.08 are reasonable and fall within Section F of the Expense Regulation.² Therefore, I award Zurich its expenses of $1,311.08, inclusive of G.S.T.

February 24, 2009

Denise Ashby Arbitrator

Date