Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2010 ONFSCDRS 101
FSCO A09-003110
BETWEEN:
E. R.
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Judith Killoran
Heard: June 29, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: E. R. did not appear and no one appeared on his behalf
Robert W. Kerkmann for the Motor Vehicle Accident Claims Fund
Issues:
The Applicant was injured in a motor vehicle accident on December 1, 2008. He applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund (“MVAC Fund”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant 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 issue is:
- Should the hearing proceed on June 29, 2010?
Result:
- The hearing scheduled for June 29, 2010 is adjourned to a later date.
EVIDENCE AND ANALYSIS:
A hearing was scheduled before me on Tuesday, June 29, 2010 at 10:00 a.m. The Applicant did not appear to participate in the hearing although the MVAC Fund was represented. I adjourned the hearing for one-half hour to allow more time for the Applicant to appear. When I resumed the hearing at 10:30 a.m., the Applicant had not yet appeared. However, the MVAC Fund was prepared to proceed with the hearing.
I declined to proceed with the hearing and ordered an adjournment of the hearing. I had a number of concerns about the fairness of proceeding with the hearing in the absence of the unrepresented Applicant.
I relied on the pre-hearing letter of February 19, 2010 which confirmed that a pre-hearing discussion was held on February 18, 2010 by telephone conference call arranged by the Financial Services Commission of Ontario (“Commission”). The Applicant participated as did a representative of the MVAC Fund. The Applicant was not represented. Legal counsel represented the MVAC Fund.
Based on the pre-hearing letter, it appeared that the Applicant resides part-time in Toronto but he did not wish to attend a face-to-face pre-hearing. He did not wish to discuss settlement and he requested that the arbitration hearing be in writing. The MVAC Fund objected and requested one day for an oral hearing, based on its intention to call oral evidence from the adjuster and its assessors in addition to presenting documents. The Applicant did not object to this process but stated that he did not intend to appear at the hearing or present witnesses for his claims and he did not wish to participate by telephone. The pre-hearing arbitrator stated that the Applicant should indicate in writing to the Case Administrator at least thirty days in advance of the hearing if he did intend to appear with witnesses to present evidence to the hearing arbitrator. He was also asked to name the witnesses and briefly explain what they would testify about.
The pre-hearing arbitrator stated that the Applicant wanted the arbitrator who hears this matter admit as his evidence the documents he previously sent to the Commission with his Application for Arbitration together with his written submissions.
As the Applicant did not send the MVAC Fund copies of the documents he provided to the Commission with his Application, the MVAC Fund agreed to review and make copies of the listed thirty documents that are contained in the Commission’s file. Both parties were reminded in the pre-hearing letter that they are obligated to send each other copies of all documents they intend to be admitted as evidence for the hearing in accordance with Rules 32 and 39 of the Dispute Resolution Practice Code.
The issues in dispute for the hearing were determined to be the following:
- Non-Earner Benefits: The Applicant claims $185 per week from June 1, 2009 to September 15, 2009 pursuant to section 12 of the Schedule.
- Attendant Care Benefits: The Applicant claims a total of $19, 875 from December 1, 2008 to March 2, 2009 and $451.57 per month from March 2, 2009 to September 15, 2009 pursuant to section 16 of the Schedule.
- Clothing/Glasses: The Applicant claims $575 under section 23 of the Schedule.
- Housekeeping Expenses: The Applicant claims $100 per week until September 15, 2009 under section 22 of the Schedule.
The Applicant also claimed interest on any overdue amounts under section 46 of the Schedule and a special award under subsection 282(10) of the Insurance Act. Both parties sought their expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, according to the Application for Arbitration and the Response by Insurer to an Application for Arbitration.
The Applicant appeared to have proposed a form of “hybrid” hearing; that is, a written hearing for himself and an oral hearing for the MVAC Fund.
Subsection 5.1 (1) of the Statutory Powers Procedure Act (“SPPA”)2 states the following:
A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding.
Section 25.1 of the SPPA states the following:
A tribunal may make rules governing the practice and procedure before it.
In compliance with the SPPA, the Dispute Resolution Services Branch at the Commission has rules which are contained in the Dispute Resolution Practice Code. Rule 37.1 states:
The arbitrator may:
(a) hold an oral hearing;
(b) hold a written hearing;
(c) hold an electronic hearing; or
(d) hold a hearing which combines one or more of the above formats.
Rule 37.2 states that an arbitrator shall not hold a written hearing where a party satisfies the arbitrator that there is a good reason for not doing so. It appears that the arbitrator at the pre-hearing was satisfied that there was a good reason for not holding a written hearing. Therefore, the Notice of Hearing stated that the hearing was scheduled for Tuesday, June 29, 2010 at the Commission.
It appears that the Applicant believes that it is not necessary to attend a hearing as the Notice of Hearing states the following:
You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.
I was not persuaded that the unrepresented Applicant realized the possibly prejudicial consequences to himself of refusing to discuss settlement, refusing to appear at the hearing, and refusing to present witnesses at the hearing. By doing so, he forfeited the possibility of resolving his claims and he exposed himself to possible cost consequences if he was unsuccessful at the hearing. That is, the MVAC Fund could apply to the hearing arbitrator under Rule 75 of the Dispute Resolution Practice Code for the Applicant to pay its expenses of the proceeding.
I was concerned that the Applicant had relinquished his right to cross-examination of the MVAC Fund’s witnesses and his right of reply. He had also exposed himself to the possibility that the MVAC Fund could file a motion for dismissal of his case. I was not persuaded that the Applicant understood that some or all of the “evidence” which he wanted to admit at the hearing might be disallowed by the hearing arbitrator.
On the other hand, the Applicant did not appear to recognize that he had any obligation to either pursue his claims or withdraw them. He also did not appear to grasp that he bears the burden of proof and that, in order to be successful, he must establish on the balance of probabilities that he has met the requirements for entitlement under the Schedule.
As a result of my concerns about the fairness of proceeding with the hearing in the absence of the Applicant, I adjourned the hearing and asked the Case Administrator to schedule a resumption of pre-hearing before me to discuss these issues. I requested that she explore with the Applicant whether he wanted to discuss settlement and whether there were accommodation issues which we could satisfy that would result in his attendance at both the pre-hearing and hearing.
On July 6, 2010, the Applicant forwarded correspondence to the Case Administrator in response to her efforts to schedule a resumption of the pre-hearing discussion. He stated that he would be unavailable to participate, either in person, or by telephone conference call, or otherwise in any arbitration proceeding. Further, he stated that he would be “relying solely on documents already submitted to the Commission, relevant to my claim.”
On July 22, 2010, the Applicant forwarded correspondence to the Case Administrator which stated that the Notice of Hearing for the arbitration hearing does not specifically mandate any face-to-face attendance of the applicant nor any particular obligation to participate in person. He was concerned about my determination to impose what he characterized as an extraneous duplicate pre-hearing. The Applicant also notified the Case Administrator that his telephone number is no longer in service, although his mailing address remains the same.
In light of the Applicant’s response to my efforts to schedule a resumption of the pre-hearing, I must conclude that another hearing date should be scheduled after consultation with the MVAC Fund, with notice to the Applicant. I am not seized of this matter as I have heard no evidence with respect to the issues in dispute.
August 11, 2010
Judith Killoran
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2010 ONFSCDRS 101
FSCO A09-003110
BETWEEN:
E. R.
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The hearing scheduled for June 29, 2010 is adjourned to a later date.
August 11, 2010
Judith Killoran
Arbitrator
Date