Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 84 FSCO A08-002648

BETWEEN:

JENNIFER AKASHA Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Alec Fadel Heard: April 30, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Ms. Akasha Amit Gogna for Personal Insurance Company of Canada

Issues:

The Applicant, Jennifer Akasha, was injured in a motor vehicle accident on November 23, 2007 and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Issues arose concerning the applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Akasha 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:

1. Is Ms. Akasha entitled to an income replacement benefit from November 30, 2007 to November 30, 2009 pursuant to section 4 of the Schedule?
2. Is Ms. Akasha entitled to a medical benefit in the amount of $4,216.90 for incurred treatment pursuant to section 14 of the Schedule?
3. Is Personal liable to pay Ms. Akasha’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
4. Is Ms. Akasha liable to pay Personal’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
5. Is Personal liable to pay a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

1. The arbitration is dismissed.
2. The applicant shall pay $1,000, inclusive of disbursements and G.S.T., to the Personal toward its expenses of this arbitration.

EVIDENCE AND ANALYSIS:

An application for arbitration was received by the Commission on December 5, 2008 and the insurer’s response was received accompanied by a cover letter dated January 19, 2009. A pre-hearing discussion was conducted on June 9, 2009 and the applicant was not in attendance. The pre-hearing letter notes that applicant’s counsel stated that they were having difficulty contacting the applicant who had moved to Puerto Rico, U.S.A.. The applicant’s representative indicated that they would provide an updated address once they were able to establish communication with her. At the initial pre-hearing, the issues in dispute were identified and a hearing date was set to commence on February 8, 2010. A resumption of pre-hearing was scheduled for September 25, 2009 for the stated purpose of accommodating a settlement discussion.

By letter dated September 22, 2009, the applicant’s representative indicated that they were unable to attend the resumed pre-hearing and the parties agreed to adjourn the proceeding to November 27, 2009. By letter dated September 29, 2009 from applicant’s counsel, the Commission was provided with an updated address and phone number for the applicant. A further letter from the applicant’s representative dated October 15, 2009 sets out their difficulty corresponding with the applicant, noting their various unsuccessful attempts and requests to be removed as solicitor of record for the applicant. By letter dated October 27, 2009, the pre-hearing arbitrator noted that he would respond to the applicant’s representative’s request to be removed from the record at the already re-scheduled resumption of pre-hearing set for November 27, 2009.

By letter dated December 1, 2009, the pre-hearing arbitrator noted that the applicant was not in attendance at the resumed pre-hearing. The arbitrator noted that he called the applicant at the phone number provided by her solicitor and a woman who answered, but did not identify herself, confirmed that the Commission had the proper contact information for the applicant. According to his letter, she told the arbitrator that the applicant was attending school outside of Canada and that she was forwarded her mail. The arbitrator removed the applicant’s solicitor from the record and advised the applicant, in his letter, to inform the Commission in writing if she retained a new representative. The arbitrator also confirmed, in his letter, that the hearing had been set to commence on February 8, 2010 and informed the applicant that if she intended to present evidence at same she was to contact the case administrator on or before January 4, 2010. The arbitrator also stated that if the applicant did not contact the case administrator by January 4, 2010, the insurer was not to prepare its evidence or anticipate a full hearing. The applicant did not contact the case administrator at any time prior to the hearing.

I presided over the hearing that commenced on February 8, 2010 and the applicant did not appear. I telephoned the applicant at the number on file but there was no answer. The insurer asked that I dismiss the proceeding pursuant to Rule 68 of the Dispute Resolution Practice Code (the “Code”). By letter dated February 8, 2010, I informed the applicant of the insurer’s request that the arbitration be dismissed without a hearing. Despite this request a new hearing date was scheduled for April 30, 2010. In my letter of February 8, 2010, I referred to the fact that the pre-hearing arbitrator had attempted to contact the applicant at the telephone number supplied by her prior solicitor and it was confirmed by the unidentified woman that the Commission had the correct contact information. I also informed the applicant that the Commission was entitled to rely on the last known address as per the Code. I informed the applicant that I was not prepared to dismiss her application at that time and that the hearing was being rescheduled to proceed on April 30, 2010 at 10:00 a.m. at the Commission. I also informed the insurer that it was not to prepare its evidence for the hearing or anticipate a full hearing on April 30, 2010.

A notice of hearing was sent by the Commission to the parties on February 8, 2010 clearly stating that the hearing would resume on Friday, April 30, 2010. On April 30, 2010, the applicant did not attend the resumption of hearing. I waited for 30 minutes prior to calling the applicant by telephone, but I was unable to reach anyone at the last known telephone number on file. The insurer reiterated its request that the arbitration proceeding be dismissed and presented a “costs outline” for my consideration.

I find that the applicant had sufficient notice of the hearing that proceeded on April 30, 2010.

After noting the various proceedings the applicant has failed to attend and her failure to respond to my correspondence and the correspondence of the pre-hearing arbitrator, it is apparent that she 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, she failed to establish entitlement to the benefits claimed and her claims for various accident benefits is dismissed.

EXPENSES:

Section 282 (11) of the Insurance Act states:

Expenses

(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations. 1996, c. 21, s. 38 (4).

The insurer submitted that it was entitled to its expenses of the arbitration and provided its “costs outline” which showed a total number of hours of 31.2 between two lawyers called in 2001 and 2009. At the discounted legal aid rate, the insurer is seeking its expenses, including disbursements, in the amount of $2,543.34. It is clear that the applicant has not met with success in asserting her claim. Accordingly, for the following reasons, I find that the insurer is entitled to part of its expenses of the arbitration.

I note that as early as June 9, 2009, when the applicant failed to appear at the pre-hearing, she continued to have no involvement in this arbitration. Though a hearing date was scheduled at the initial pre-hearing, it became apparent by at least October 15, 2009, that the applicant’s solicitor was experiencing difficulty communicating with the applicant. Subsequent to the resumed pre-hearing where the applicant’s solicitor was removed from the record, the arbitrator’s letter requested that the applicant contact the Commission on or before January 4, 2010. The arbitrator’s letter specifically informed the insurer that if the applicant did not contact the Commission by this date, it was not to prepare its evidence or anticipate a full hearing. Further, after the hearing was adjourned, I also informed the insurer that it should not prepare its evidence or anticipate a full hearing at the resumed hearing of April 30, 2010. I note that more than half of counsel hours claimed by the insurer relate to work done for the initial pre-hearing, however, I find that, on the facts of this case, ordering the applicant to reimburse the insurer for the actual time that was put into the file would be excessive.

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 $1,000.00 which, based on the above, I find to be an appropriate amount.

July 5, 2010

Alec Fadel Arbitrator

ARBITRATION ORDER

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

1. The arbitration is dismissed.
2. The applicant shall pay $1,000, inclusive of disbursements and G.S.T., to the Personal toward its expenses of this arbitration.

July 5, 2010

Alec Fadel Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.