Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 129

FSCO A09-003110

BETWEEN:

EDWARD ROSS

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

Before: Robert A. Kominar

Heard: October 13, 2010, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Ross Robert W. Kerkmann for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Edward Ross, was injured in a motor vehicle accident on December 1, 2008. He applied for and received statutory accident benefits from Motor Vehicle Accident Claims Fund (“MVAC Fund”), payable under the Schedule.¹ MVAC Fund denied various benefits requested by Mr. Ross. The parties were unable to resolve their disputes through mediation, and Mr. Ross 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. Ross entitled to Non-Earner benefits in the amount of $185 per week from June 1, 2009 to September 15, 2009, under Part III of the Schedule?
Is Mr. Ross entitled to Attendant Care Benefits in the amount of $19,875 from March 2, 2009 to September 15, 2009, under section 16 of the Schedule?
Is Mr. Ross entitled to $575 for the cost of broken eyewear and the cost of a torn jacket, under section 23 of the Schedule?
Is Mr. Ross entitled to Housekeeping and Home Maintenance Expenses in the amount of $100 per week from the date of the accident to September 15, 2009, under section 22 of the Schedule?
Is Ms. Ross entitled to interest on any overdue amounts under section 46 of the Schedule, a special award under subsection 282(10) of the Insurance Act and his expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Mr. Ross’ claims for non-earner benefits, attendant care benefits, compensation for damage to clothing and eyewear, housekeeping and home maintenance benefits, interest, legal expenses and a special award are all dismissed.

EVIDENCE AND ANALYSIS:

This matter came up for hearing on October 13, 2010, at 10:00 a.m. at the Offices of the Financial Services Commission of Ontario in Toronto. At that time Mr. Kerkmann, counsel for MVAC Fund was in attendance and prepared to proceed. No one appeared on behalf of Mr. Ross, who has been self represented throughout the arbitration process.

The Commission’s file reflects that Mr. Ross was advised by the pre-hearing arbitrator, in the pre-hearing letter, of the advisability of retaining legal representation. The procedural history of this matter makes it clear that Mr. Ross has elected not to seek the services of a legal representative, as is his right. I am therefore fully satisfied that there is no reason to delay dealing with this matter based on any concern that Mr. Ross may be having difficulties in obtaining representation and thus needing more time.

This matter was originally scheduled for hearing on June 29, 2010. On that date, the matter came before Arbitrator Killoran, who observed that Mr. Ross had been requesting a form of hearing where he would just “file” documents with the Commission. He has stated clearly in multiple communications with the Commission that he has no intentions of personally participating in a hearing at any point in time, nor does he intend to call any witnesses at an arbitration hearing or make submissions.

Mr. Ross has, over time, filed a number of documents with the Commission and apparently is of the view that I, as the hearing arbitrator, would review those documents and use them in some unspecified manner in arriving at my decision in this arbitration. Rather than proceeding with the arbitration hearing on June 29th, Arbitrator Killoran conducted a Preliminary Issue Hearing into the question of whether the matter should be adjourned given Mr. Ross’ potential confusion over the format of the arbitration process. She adjourned the hearing and her reasons for that decision were released on August 11, 2010. I am satisfied that the reasons for decision were received by Mr. Ross, based on the fact that he wrote to the Commission afterwards expressing his disapproval of the results.

Since Mr. Ross declined to participate in the ongoing pre-hearing process, the hearing date of October 13, 2010 was set without his input. Although I am satisfied that he was aware of this date due to the fact that he communicated with the Commission to state that he did not intend to participate in any manner. I point out here that Mr. Ross has not just “failed” to participate in setting this arbitration date; he has “refused” to become involved in the Commission’s process for doing so. Given that Mr. Ross, from the pre-hearing date onwards, has expressly refused to participate, either in person or by teleconference, in further proceedings I am satisfied that no unfairness arises in adjudicating with his claims for accident benefits.

Notwithstanding that Mr. Ross has sent a number of documents to the Commission, which ostensibly are supposed to support his claim for benefits, I must dismiss all of his claims. Even though arbitration at the Commission is intended to be a less formal, more accessible, legal process for resolving disputes between accident benefit insurers and claimants than exists in the courts, it is still an adversarial proceeding. The implications of this are that Applicants for benefits still must prove their case on the balance of probability by way of presenting evidence before the arbitrator and then making submissions on how the law should be applied to the specific facts. In an adversary context all parties have the opportunity to “challenge” the evidence put forth by the other side. It is this right to examine and challenge evidence that is the essence of adversary process.

I have no idea why Mr. Ross filed this Application for Arbitration and then decided that he would no longer actively participate in it, even when he was offered the opportunity to custom design a process that might work for him and the insurer. I note that Arbitrator Killoran was prepared to assist him in any way that she could had Mr. Ross articulated specific concerns he had about further participation; specifically she wondered whether there might be access issues which were preventing Mr. Ross from participating. Mr. Ross has never provided any specific reason for not participating in the arbitration process either in person or by teleconference. He simply refuses to further participate. The only inference which I can draw from this is that there are no specific concerns that Mr. Ross has and he simply refuses to further advance his claims within the arbitration process.

It is trite law that an Applicant bears the burden of proof in arbitration to establish the merits of his or her claims on a balance of probabilities. In other words, Mr. Ross has to satisfy me in this case, by way of presenting evidence, that his claims are more likely valid than not. In this case no evidence has been put before me at all. I am not prepared to conduct an amorphous review of documents placed before me “in the file” by Mr. Ross. I have no idea what it is in these documents that Mr. Ross wants me to rely on, or what he wants to challenge. My job is not to be his advocate but to be his adjudicator. This is exactly why Mr. Ross ought to have participated further in this arbitration process in some meaningful way or else retained legal representation to assist him. Mr. Ross may or may not have legitimate claims to assert against MVAC Fund, I am uncertain. The irony here is that through his adamant refusal to participate in the arbitration process, including most saliently his apparent refusal to allow arbitrators to assist him to even discuss the possibility of settlement with MVAC Fund, Mr. Ross may have actively prevented himself from obtaining relief to which he is actually legally entitled.

Closure of disputes is also a value in litigious proceedings. It is, in my view, completely unfair to expose MVAC Fund to ongoing legal expenses associated with what are in effect quixotic attempts to get Mr. Ross to participate in the process. As a result I have no alternative but to dismiss all of Mr. Ross’ claims in this arbitration on the basis that no evidence was presented to me at the hearing to support any of them. He has therefore not met the required burden of proof.

EXPENSES:

Given the result on the substantive benefits which I have reached, I find that Mr. Ross is not entitled to legal expenses in this arbitration. MVAC Fund has advised me that, in the circumstances they are not seeking to recover legal expenses from Mr. Ross. Therefore I order that no expenses be paid by either party to the other in this arbitration.

November 5, 2010

Robert A. Kominar Date

Arbitrator