Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 117

FSCO A11-000364

BETWEEN:

ROBERT POWER

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Deborah Pressman

Heard: December 1, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared for Mr. Power

Peter Yoo for RBC General Insurance Company

Issues:

The Applicant, Robert Power, claims to have been involved in a motor vehicle accident on August 17, 2009. He claimed statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Mr. Power applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

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

Is Mr. Power entitled to receive a weekly income replacement benefit in the amount of $400.00 per week from August 24, 2009 and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Power entitled to attendant care benefits at the rate of $824.63 per month from August 17, 2009, and ongoing, pursuant to section 16 of the Schedule?
Is Mr. Power entitled to receive a medical benefit in the amount of $851.16 for chiropractic and massage treatment provided by Osler Rehabilitation Centre Inc., as per a treatment plan dated August 17, 2009, pursuant to section 14 of the Schedule?
Is Mr. Power entitled to payments of housekeeping and home maintenance services at the rate of $100.00 per week from August 17, 2009 and ongoing, pursuant to section 22 of the Schedule?
Is Mr. Power entitled to payments for the cost of examinations, pursuant to section 24 of the Schedule as follows:

$280.00 for the completion of four OCF-22 forms by Assessment Direct;
$226.46 for the provision of assistive devices by Assessment Direct; and
$2,023.56 for a driving evaluation assessment by Assessment Direct, dated August 17, 2009?

Is RBC liable to pay Mr. Power’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Power liable to pay RBC’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Power entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Power’s claims are dismissed.
Mr. Power is liable to pay RBC’s expenses in respect of the arbitration, fixed at $1,000.00, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Mr. Power failed to attend the various stages of this arbitration. Mr. Power also failed to attend this hearing. Mr. Power’s claims for accident benefits are dismissed for the reasons that follow.

The file shows that notices of all the various stages of this arbitration were sent to Mr. Power 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.”

On September 21, 2011, a pre-hearing discussion was held with a motion brought by Mr. Power’s previous counsel to withdraw as his representative in this proceeding. Mr. Power failed to attend the pre-hearing discussion and motion.

Although I was satisfied that Mr. Power 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. Power to attend. During the recess, our office attempted, without success, to contact Mr. Power by placing a telephone call to the number on file. Both the pre-hearing discussion and motion proceeded in his absence.

By letter dated September 27, 2011, I informed Mr. Power that the pre-hearing discussion and motion proceeded in his absence and that his counsel had been permitted to withdraw as his representative.

By the same letter, I notified Mr. Power that the arbitration hearing was scheduled for December 1, 2011, and stated the following:

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

A Notice of Hearing was sent to Mr. Power on September 26, 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.

I am satisfied that this Notice of Hearing complied with the requirements of section 6 of the Statutory Powers Procedure Act (“SPPA”).²

Notwithstanding the notice, neither Mr. Power, nor anyone representing him, appeared at FSCO for his arbitration hearing scheduled for December 1, 2011 at 10:00 a.m. I recessed the hearing until 10:30 a.m. to allow time for Mr. Power or a representative to attend. At approximately 10:15 a.m., our office placed a telephone call to the number on file and left a voice mail for Mr. Power. By 10:30 a.m., Mr. Power had still not attended at FSCO and did not return our call. RBC requested that the hearing proceed in Mr. Power’s absence. I agreed.

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. Power’s absence.

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

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

EXPENSES:

RBC provided oral submissions with respect to its claim for $2,500.00 (inclusive of HST) for its legal expenses of the arbitration proceeding.

When assessing legal fees, arbitrators at FSCO determine entitlement and quantum by applying 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. Power 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 did not succeed in asserting his claim for benefits and is not entitled to his expenses. RBC, as the “successful party”, is entitled to its expenses.

Counsel for RBC submitted that the actual hours spent on this file exceed the $2,500.00 claimed for expenses. However, RBC did not provide a Bill of Costs to substantiate this claim and did not particularize the number of hours spent or the applicable hourly rate in preparing for this arbitration.

In addition, there were only two minor attendances in this arbitration proceeding which did not require significant time to prepare. My letter dated September 27, 2011 advised RBC not to prepare for the second attendance. Therefore, I find RBC’s claim for $2,500.00 for legal fees and disbursements to be excessive.

I find that RBC is entitled to its reasonable legal expenses in this matter, which I fix at $1,000.00 (inclusive of HST). This amount takes into consideration the time counsel spent for preparing a Response to the Application for Arbitration, consulting with his client, preparing for and attending at the brief pre-hearing discussion and motion, and attending at the hearing.

I therefore exercise my discretion and order Mr. Power to pay RBC’s expenses against him at $1,000.00, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

December 19, 2011

Deborah Pressman

Arbitrator

Date