Shahid v. Perth Insurance Company, 2011 ONFSCDRS 109

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 109

FSCO A09-003054

BETWEEN:

ZOHAIB SHAHID

Applicant

and

PERTH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Lloyd (J. R.) Richards

Heard: October 17, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Shahid

Caroline Meyer for Perth Insurance Company

Introduction:

The Applicant, Zohaib Shahid, was injured in a motor vehicle accident on June 26, 2008. He applied for and received some statutory accident benefits from Perth Insurance Company (“Perth”), payable under the Schedule.¹ Perth terminated benefits, the parties were unable to resolve their disputes through mediation, and Mr. Shahid 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:

Should Mr. Shahid’s claims be dismissed because he failed to appear at the hearing in this matter?
Is Mr. Shahid liable to pay Perth’s arbitration expenses in this matter?

Result:

Mr. Shahid’s claims are dismissed.
Mr. Shahid shall pay Perth’s arbitration expenses in the amount of $1,682.25 in this matter.

EVIDENCE AND ANALYSIS:

The first pre-hearing in this matter took place on July 19, 2010. Mr. Shahid did not attend. Nevertheless, I allowed the pre-hearing to proceed with Mr. Shahid’s representative. I set a hearing date for May 30, 2011 and Mr. Shahid’s representative agreed that Mr. Shahid would produce certain documents to Perth. Mr. Shahid had not produced the documents by April 2011 and Perth requested a resumption of the pre-hearing to address the issue.

I resumed the pre-hearing by teleconference on May 13, 2011 and Mr. Shahid participated. At the resumed pre-hearing, I ordered that Mr. Shahid produce certain documents to Perth. I also adjourned the hearing to commence December 12, 2011 to allow Perth to address the contents of the documents I ordered Mr. Shahid to produce.

Mr. Shahid did not comply with my Order and did not produce documents to Perth. I resumed pre-hearings in this case on September 16 and 19, 2011 to address the issue. Mr. Shahid did not participate on either date. Mr. Shahid’s representative also stated that he was experiencing ongoing difficulty in getting instructions from Mr. Shahid. At the September 19, 2011 resumed pre-hearing I rescheduled the hearing in this case to October 7, 2011.

At the hearing in this matter Mr. Shahid’s representatives requested that they be allowed to withdraw as Mr. Shahid’s representatives as they had been unable to convince Mr. Shahid to participate in the hearing process and to instruct them on how he wished to proceed. Mr. Shahid was advised of his representatives’ request prior to the hearing. Mr. Shahid’s representative provided to the Commission Mr. Shahid’s last known address and telephone number and Notice of this hearing was sent to that address. Prior to hearing any submissions on the issues in dispute I allowed Mr. Shahid’s representatives to withdraw.

At the commencement of the hearing I adjourned the hearing for thirty minutes, giving Mr. Shahid an opportunity to appear. As Mr. Shahid did not appear after the thirty-minute adjournment, the hearing in this matter proceeded in his absence.

The onus is on the Applicant to prove his claim on a balance of probabilities. Hearing no evidence from Mr. Shahid, and hearing nothing from Perth in the way of evidence that could support Mr. Shahid’s claims, I find that he has failed to meet the burden of proving his claims. Therefore, his claims for benefits are dismissed.

EXPENSES:

Perth submitted an expense claim in the amount of $1,682.25 (combined fees and disbursements). I find that Mr. Shahid, having failed to appear on this matter, and not succeeding on the issues in dispute, is disentitled to expenses. I also find that Perth is entitled to its reasonable expenses in the arbitration of this matter.

Rather than engaging in a line by line analysis of Perth’s expense claim, I find that the submitted fees and disbursements are reasonable given the progression of this case. Professional responsibility required Perth to spend time preparing for the hearing, even though it was unlikely that Mr. Shahid would appear. Although Mr. Shahid has been present only once during the life of his arbitration file at the Commission, Perth had to be prepared for any eventuality. I therefore fix Perth’s expenses in the amount of $1,682.25.

November 29, 2011

J.R. Richards

Arbitrator

Date