Neutral Citation: 2011 ONFSCDRS 104 FSCO A11-000629

BETWEEN:

SALAR MATTI Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Deborah Pressman Heard: November 4, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Matti Caroline Meyer for Economical Mutual Insurance Company

Background:

The Applicant, Salar Matti, claims to have been involved in a motor vehicle accident on October 22, 2009. He claimed statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Mr. Matti applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Matti failed to attend the various stages of this arbitration, despite having received notices at the address he provided to FSCO. Mr. Matti also failed to attend this hearing.

Issues:

The issues, as identified in Mr. Matti’s Application for Arbitration, are as follows:

Is Mr. Matti entitled to receive a weekly income replacement benefit in the amount of $400.00 per week from October 30, 2009, and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Matti entitled to attendant care benefits at the rate of $841.52 per month from October 22, 2009, and ongoing, pursuant to section 16 of the Schedule?
Is Mr. Matti entitled to receive a medical benefit in the amount of $624.76 for physiotherapy and massage treatment provided by Osler Rehabilitation Centre Inc., as per a treatment plan dated October 22, 2009, pursuant to section 14 of the Schedule?
Is Mr. Matti entitled to payments of housekeeping and home maintenance services at the rate of $100.00 per week from October 22, 2009 and ongoing, pursuant to section 22 of the Schedule?
Is Economical liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Matti?
Is Economical liable to pay Mr. Matti’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Matti liable to pay Economical’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Matti entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Matti’s claims are dismissed.
Mr. Matti is liable to pay Economical’s expenses in respect of the arbitration, fixed at $1,035.61, pursuant to subsection 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Mr. Matti’s claims for accident benefits are dismissed for the reasons that follow.

Mr. Matti failed to attend the pre-hearing discussion on September 28, 2011, which was held together with a motion brought forward by Mr. Matti’s previous counsel to withdraw as his representative in this proceeding.

Although I was satisfied that Mr. Matti was served with a Notice of Motion and Notice of Pre-Hearing Discussion at his last known address, I recessed the pre-hearing discussion and motion for 30 minutes to allow time for Mr. Matti to attend. During the recess, our office attempted, without success, to contact Mr. Matti by placing a telephone call to the number on file. Both the pre-hearing discussion and motion proceeded in his absence.

By letter dated October 3, 2011, I informed Mr. Matti that the pre-hearing discussion and motion proceeded in his absence and that his counsel has been permitted to withdraw as his representative.

By the same letter, I notified Mr. Matti that the arbitration hearing is scheduled for November 4, 2011, and stated the following:

In the event that Mr. Matti does not attend, then, as noted above, the hearing may proceed in his absence. Mr. Matti’s Application for Arbitration may be dismissed and Economical’s expenses of the arbitration proceeding may be awarded against him.

A Notice of Hearing was sent to Mr. Matti on October 7, 2011. It stated:

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.

Neither Mr. Matti, nor anyone representing him, appeared at FSCO for his arbitration hearing scheduled for November 4, 2011 at 11:00 a.m. I recessed the hearing until 11:30 a.m. to allow time for Mr. Matti or a representative to attend. At approximately 11:15 a.m., our office placed a telephone call to the number on file. A female person answered the call and advised that Mr. Matti was not available and would not return the call. The person who answered the telephone did not identify herself and did not have an alternative telephone number or forwarding address for Mr. Matti. By 11:30 a.m., Mr. Matti had still not attended at FSCO. Economical requested that the hearing proceed in Mr. Matti’s absence. I agreed.

The file shows that notices of all the various stages of this arbitration were sent to Mr. Matti at the address he provided to FSCO. Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”) provides that “[FSCO] is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.”

I am also satisfied that the Notice of Hearing complied with the requirements of section 6 of the Statutory Powers Procedure Act (“SPPA”), an act which governs our proceedings.²

Notwithstanding having received notice, Mr. Matti failed to attend at the November 4, 2011 hearing. Subsection 7(1) of the SPPA speaks to the effect of non-attendance at a hearing after due notice. It reads as follows:

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.

Rule 37.7 of the Code provides:

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.

Pursuant to Subsection 7(1) of the SPPA and Rule 37.7 of the Code, the hearing proceeded in Mr. Matti’s absence.

In order to establish his entitlement to benefits, Mr. Matti must provide evidence supporting his claims and prove his claims on a balance of probabilities. As Mr. Matti did not attend to present any evidence, he failed to establish his entitlement to the benefits claimed in his Application for Arbitration. He did not meet his burden of proof.

Consequently, I dismissed Mr. Matti’s claims for income replacement benefits, attendant care benefits, medical benefits and housekeeping expenses, as well as his claim for interest on overdue payments and expenses.

Mr. Matti also claimed a special award under the Insurance Act. Since his claims for statutory accident benefits and interest have been dismissed, it follows that there is no basis upon which a special award can be made. Mr. Matti’s claim for a special award is also dismissed.

EXPENSES:

Economical provided oral and written submissions with respect to its claim for legal expenses of the arbitration proceeding.

When assessing legal fees, arbitrators at FSCO determine entitlement and quantum by applying a criteria dictated by the legislation,³ and bearing in mind the overriding principle of reasonableness.⁴ I find that only the first criterion, “each party’s degree of success in the outcome of the proceeding,” is relevant in this case.

Mr. Matti failed to communicate with FSCO and did not attend this hearing. As a result of his failure to proceed with his arbitration and the ultimate dismissal of his claims, he met with no success in asserting his benefits and is not entitled to his expenses. Economical, as the “successful party”, is entitled to its expenses.

Economical presented a Bill of Costs of $981.09 for legal fees and $54.52 for disbursements (inclusive of HST). It claimed less than 10 hours, at the appropriate legal aid rate, for the preparation and attendance at the pre-hearing discussion and motion on September 28, 2011, and at the hearing on November 4, 2011. The hours claimed did not include travel time and the disbursements are minimal. Accordingly, I find Economical’s legal expenses to be reasonable.

I therefore exercise my discretion and order Mr. Matti to pay Economical’s expenses against him at $1,035.61, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

November 18, 2011

Deborah Pressman Arbitrator

Date

Financial Services Commission of Ontario