Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 89
FSCO A08-000493
BETWEEN:
JUNAID SAID
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Insurer
REASONS FOR DECISION
Before: Jeffrey Rogers
Heard: July 19, 2010 at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: No one appearing for Mr. Said Ms. Pamela A. Brownlee, solicitor for Security National Insurance Co./Monnex Insurance Mgmt. Inc.
Issues:
The Applicant, Junaid Said, was injured in a motor vehicle accident on January 25, 2006. He applied for income replacement benefits and other benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.1 The parties disagreed on entitlement to the claimed benefits. They were unable to resolve their disputes through mediation and Mr. Said 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. Said entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
Is Mr. Said entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Mr. Said entitled to attendant care benefits in the amount of $610.33 per month, from February 21, 2006 to January 25, 2008, pursuant to section 16 of the Schedule?
Is Mr. Said entitled to the following, as the cost of examinations, pursuant to section 24 of the Schedule:
$1,487.11 for a Post-Injury Mental Disability Assessment by Assessment Direct, dated January 26, 2007;
$1,400 for a Neurological Assessment by Assessment Direct, dated February 3, 2007;
$1,248.39 for a Functional Abilities Assessment by Assessment Direct, dated February 20, 2007; and
$1,498 for an Orthopaedic Assessment, dated February 10, 2007?
Is Security National liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Said?
Is Security National liable to pay Mr. Said’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Said liable to pay Security National’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Said entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Result:
The Application for Arbitration is dismissed.
Mr. Said is liable to pay Security National’s expenses in respect of the arbitration in the amount of $1,208.72.
EVIDENCE AND ANALYSIS:
Neither Mr. Said nor anyone on his behalf attended at the arbitration hearing. The pre-hearing was held on March 4, 2009. Mr. Said’s solicitors informed Security National and the Commission that Mr. Said was not in the country and therefore would not be able to participate in person, but that he was available by telephone. The pre-hearing report does not indicate that he participated. The pre-hearing Arbitrator scheduled the hearing to start on November 16, 2009.
On October 13, 2009, the hearing was adjourned to July 19, 2010, based upon information that Mr. Said would not be returning to the country for another four months. A resumption of the pre-hearing was scheduled for June 18, 2010, at the request of Security National. On June 3, 2010, Mr. Said’s solicitors informed the pre-hearing Arbitrator that they had last been in contact with their client on March 31, 2010, had since been unable to contact him, had not been able to obtain meaningful instructions and were seeking to be removed from the record. On June 15, 2010, the pre-hearing Arbitrator made an order removing Mr. Said’s solicitors from the record.
The pre-hearing Arbitrator resumed the pre-hearing on June 18, 2010. Mr. Said did not participate. The pre-hearing Arbitrator reported that he spoke to “Arsheen” who answered the telephone at the number on record for Mr. Said. Arsheen agreed to send an e-mail to Mr. Said informing him that the arbitration hearing was still scheduled to start on July 19, 2010 and that failure to attend at the hearing or have someone attend on his behalf would likely result in the arbitration being dismissed. The pre-hearing Arbitrator also provided Arsheen with his e-mail address and telephone number. Mr. Said has not been in contact with the Commission.
I am satisfied that Mr. Said was given notice of the hearing and failed to attend, without explanation. Mr. Said bears the onus of proving entitlement to the claimed benefits. No evidence having been tendered to support his Application, the Application for Arbitration is dismissed.
EXPENSES:
Security National sought an order requiring Mr. Said to pay its expenses of the arbitration. I find that Security National is entitled to its expenses of the arbitration. Security National was completely successful in defending Mr. Said’s claim for benefits and his failure to meaningfully participate shows that the proceeding was probably unnecessary.
The amount of expenses is fixed at $1,208.72. I have awarded 1.5 hrs. of preparation time for the hearing, instead of the 4 hrs. claimed. The amount claimed appears excessive when counsel must have anticipated that Mr. Said would not attend. I have awarded $251.90 for photocopies, instead of the claimed amount of $630.76. The award reflects the amount of the invoices filed with the Bill of Costs. The award of expenses is summarized as follows:
Counsel fees: 7.7 hrs. @ $96.95 per hr. $746.52
Photocopies, inclusive of HST $251.90
Courier, inclusive of GST $210.30
Total $1,208.72
July 22, 2010
Jeffrey Rogers Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 89
FSCO A08-000493
BETWEEN:
JUNAID SAID
Applicant
and
SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:
The Application for Arbitration is dismissed.
Mr. Said shall pay Security National its expenses of the arbitration in the amount of $1,208.72.
July 22, 2010
Jeffrey Rogers Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.