Samsul Hassan v. Economical Mutual Insurance Company, 2010 ONFSCDRS 39

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 39

FSCO A08-002880

BETWEEN:

SAMSUL HASSAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alec Fadel

Heard: February 16, 2010, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared for Mr. Hassan

Katherine Waterston, student-at-law, for Economical Mutual Insurance Company

Issues:

The Applicant, Samsul Hassan, was injured in a motor vehicle accident on February 14, 2007. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Hassan 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. Hassan entitled to receive weekly caregiver benefits at the rate of $250 from February 14, 2007 to date and ongoing, pursuant to section 13 of the Schedule?
Is Mr. Hassan entitled to payments for housekeeping and home maintenance services in the amount of $9,500.00, pursuant to section 22 of the Schedule?
Is Economical liable to pay Mr. Hassan’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Hassan liable to pay Economical’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Hassan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Hassan’s application for arbitration is dismissed.
Mr. Hassan shall pay Economical’s expenses of the arbitration fixed at $750.

EVIDENCE AND ANALYSIS:

An application for arbitration was received at the Commission by letter dated December 16, 2008 and Economical filed its response by letter dated January 27, 2009. Subsequently, by letter dated March 24, 2009, the applicant’s solicitor indicated that they would be bringing a motion to get off the record and included a draft motion record noting “a material breakdown of the solicitor-client relationship,” and stating that the applicant had failed to contact them in order to give proper instructions. A date was provided for the motion, being June 12, 2009. At the hearing on June 12, 2009, the applicant did not attend and the motion was adjourned to July 3, 2009. All along, the insurer indicated that it was not opposed to the relief sought by the applicant’s solicitor and its counsel did not appear at the motion. The motion proceeded on July 3, 2009 and on July 8, 2009, I issued the following order:

At the resumed motion which took place on July 3, 2009, applicant’s counsel provided an affidavit of service indicating that the applicant had been served with the motion record at the above address. I noted that as per Rule 67 of the Dispute Resolution Practice Code the applicant was given sufficient notice to respond to the motion.

In their motion materials, applicant’s counsel set out their difficulty in contacting the applicant noting that they were unable to secure meaningful instruction from the applicant and that the applicant had failed to contact them in order to give proper instruction.

At the original motion date of June 12, 2009, applicant’s counsel attended, however, the applicant did not attend. Given the lack of proper service, the motion was adjourned to July 3, 2009 in order to give applicant’s counsel another opportunity to serve the applicant with their motion record. At the resumed motion, it was clear that the applicant was given at least 10 days to respond to the motion materials. The applicant did not attend at the motion on July 3, 2009. I telephoned the applicant at four different numbers supplied by applicant’s counsel. All but one of the phone numbers were either not in service or the wrong number. I was successful in contacting “Jasmine” at a number the applicant provided to his solicitors. “Jasmine” confirmed that she was the proper contact for the applicant and I confirmed that the address used for service was the correct mailing address. “Jasmine” informed me that the applicant was out of the country and she was unaware when he would return.

Based on the above, the following order was made:

ORDER: After hearing submissions from applicant’s counsel, noting the consent of Economical and noting the applicant’s failure to respond or appear at the motion, it is ordered that Zayouna Law Firm be removed from the record as legal representative of the applicant in this proceeding (file number A08-002880) pursuant to Rule 9.8 of the Dispute Resolution Practice Code.

Subsequent to the abovementioned motion, the Commission attempted to set up a pre-hearing directly with the applicant. The case administrator was unable to contact the applicant in an attempt to set a mutually agreeable date and by letter dated September 17, 2009, I informed the applicant that we were attempting to schedule the pre-hearing and requested that he contact the Commission within 30 days. I also set out parts of Rule 9 of the Dispute Resolution Practice Code (the “Code”) in my letter, including Rule 9.1(c) which confirms that the Commission is entitled to rely on the last known address contained in its records. This letter was sent to the address provided by the applicant’s prior solicitor by way of courier and regular mail. The letter sent by courier was returned to the Commission, however the letter sent by regular mail was not returned. The applicant did not contact the case administrator and a pre-hearing was scheduled, without his input, to proceed in person on November 9, 2009.

A notice of pre-hearing was sent to the applicant by way of courier and regular mail on October 20, 2009 and again the courier copy was returned but the regular mail was not. At the pre-hearing, despite the insurer participating by telephone, a room was designated at the Commission in the event the applicant attended. The applicant did not attend and was not available at the phone number on file. The pre-hearing letter dated November 9, 2009 noted that the applicant was now self-represented and that he did not appear at the motion or the pre-hearing. It set out the issues in dispute in the arbitration as described in the applicant’s application for arbitration and the insurer’s response. A hearing date of February 16, 2010 at 10:00 a.m. was set and was noted in the pre-hearing letter. At the pre-hearing, I specifically advised the insurer not to prepare for a hearing of the substantive issues on February 16, 2010 noting that in the event the applicant did attend, the hearing would likely be adjourned and a new hearing date chosen with the applicant’s input.

The hearing proceeded on February 16, 2010 and the applicant did not attend. I confirmed that a notice of hearing was issued by the Commission on December 4, 2009 and sent to the applicant at the address on file. The hearing was to commence at 10:00 a.m. and at 10:40 a.m. I took submission from the insurer. The insurer asked that the arbitration be dismissed and sought its expenses in the arbitration process in the amount of $1,200.

As noted above, the Commission “is entitled to rely on the last known address, telephone number and electronic transmission (if any) contained in its records,” as per Rule 9.1(c) of the Code. The Commission was first notified of an address change in a letter from the applicant’s then-solicitor, dated June 11, 2009 concerning the service of their motion to get off the record. This letter stated that the applicant had provided new contact information including a contact person. In addition, at the hearing of the motion, I spoke with said contact person who confirmed that the contact information was correct.

After noting the various proceedings the applicant has failed to attend and his failure to respond to my correspondence, it is apparent that he has abandoned this arbitration. Section 7 of the Statutory Powers Procedure Act states:

7.(1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

In addition, Rule 37.7 of the Code states:

37.7 Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Based on the above, I find that the applicant received notice of the hearing and failed to appear to give evidence. Consequently, he failed to establish entitlement to the benefits claimed and his claims for various accident benefits is dismissed.

EXPENSES:

The insurer submitted that it was entitled to its expenses of the arbitration and provided two interim account statements showing the hours spent on the file with a total of 11.2 hours shared between senior counsel, student-at-law and law clerk. It is clear that the applicant has not met with success in asserting his claim and I find that the insurer is entitled to its expenses of the arbitration.

I note that as early as March 24, 2009, when the applicant’s then-solicitor requested to be removed from the record, the applicant has had no involvement in this arbitration. The insurer consented to the relief requested in the motion and on that basis was not required to appear at the motion. As well, despite the pre-hearing conference being scheduled in person, I allowed the insurer to participate by teleconference in the event the applicant did not attend. Finally, at the pre-hearing, a hearing date was chosen but counsel for the insurer was asked specifically not to prepare for a hearing noting that the arbitration likely would be adjourned in the event the applicant attended. Based on the above, I find that the insurer is entitled to its expenses of the arbitration and pursuant to s. 282(11) of the Insurance Act, I order the applicant to pay Economical’s expenses fixed in the amount of $750.00 which I find to be an appropriate amount.

April 1, 2010

Alec Fadel Date

Arbitrator