Financial Services Commission of Ontario
Neutral Citation: 2011 ONFSCDRS 52 FSCO A10-001213
BETWEEN:
KWASI YEBOAH Applicant
and
ZURICH INSURANCE COMPANY LTD. (COMMERCIAL BUSINESS) Insurer
REASONS FOR DECISION
Before: Susan Sapin Heard: June 13, 2011, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: No one appeared for Mr. Yeboah or his estate Jennifer McGlashan for Zurich Insurance Company Ltd. (Commercial Business)
Issues:
The Applicant, Kwasi Yeboah, was injured in a motor vehicle accident on March 27, 2008. He applied for and received statutory accident benefits from Zurich Insurance Company Ltd. (Commercial Business) (“Zurich”), payable under the Schedule.1 Zurich eventually terminated benefits. The parties were unable to resolve their disputes through mediation, and Mr. Yeboah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, on April 30, 2010. On February 14, 2011, Mr. Yeboah died of causes not related to the accident.
The issues in dispute in this hearing are:
Attendant Care Benefits: Under section 16 of the Schedule, Mr. Yeboah claims $611.60 per month from April 1, 2008 to June 30, 2008 and $79.37 per month to July 1, 2008, less $1,317.27 Zurich paid.
Housekeeping Expenses: Under section 22 of the Schedule, Mr. Yeboah claims $100 per week to March 27, 2010, less $1,717.18 Zurich paid.
Medical/Rehabilitation Benefits: Under Part V of the Schedule, Mr. Yeboah claims $1,397.72 for chiropractic and massage treatments.
Costs of Examination: Under section 24 of the Schedule, Mr. Yeboah claims $1,259.95 for a functional abilities evaluation and $1,821.00 for a psychological assessment.
Interest on overdue amounts found to be owing, under section 46 of the Schedule.
Arbitration expenses: both parties claim their expenses of the arbitatration proceeding under section 282 of the Insurance Act, R.S.O. 1990.
Result:
The Application for Arbitration is dismissed.
As the successful party, Zurich Insurance Company Ltd. would normally be entitled to its costs thrown away, but there is no party against whom an order for costs can be made.
EVIDENCE AND ANALYSIS:
Background:
At a pre-hearing scheduled before Arbitrator Sampliner on May 13, 2011, Mr. Emmanuel Oppong, Mr. Yeboah’s uncle, appeared and produced a death certificate and advised that no one had been appointed by the Court to legally act as representative for Mr. Yeboah’s estate. Arbitrator Sampliner acceded to the request of Zweibel and Associates, counsel for the late Mr. Yeboah, also present, to withdraw from the record for want of instructions. Mr. Oppong was advised that he or a family member should obtain Court authority if he or they wished to advance Mr. Yeboah’s claims, and an arbitration hearing was scheduled for June 13, 2011.
Ms. Murleen Grant, counsel for Zurich at the pre-hearing, provided written submissions indicating Zurich was requesting the arbitration proceeding be dismissed, with costs.
Contrary to Rule 32 of the Dispute Resolution Practice Code setting out the requirements for the ongoing exchange and filing of documents that are reasonably necessary to determine the issues being arbitrated, no material was filed on behalf of Mr. Yeboah in support of his claims, nor has any been produced since.
The Hearing:
At the hearing, no one appeared on behalf of Mr. Yeboah or his estate. Ms. Jennifer McGlashan appeared on behalf of Zurich and reiterated Zurich’s request that the arbitration proceeding be dismissed with costs. Zurich filed written submissions, a brief of documents (Exhibit 1), and its bill of costs (Exhibit 2).
Rule 37.7 of the Dispute Resolution Practice Code states that where notice of hearing has been sent to a party and the party does not attend, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, and the party is not entitled to any further notice of the proceeding.
I am satisfied the notice of hearing was sent to Mr. Yeboah’s last known address (the same address to which the pre-hearing notice was sent) and to his counsel. I am satisfied Mr. Oppong, who attended the pre-hearing, was aware of the date for the arbitration hearing, which was scheduled at the pre-hearing, and was aware of the need for a court-appointed representative for the estate of Mr. Yeboah in order for the claims to be pursued.
After waiting a reasonable period of time, the hearing proceeded in the absence of any representative of Mr. Yeboah or his estate. The onus in this matter is upon the Applicant to prove his claims on the balance of probabilities. As no evidence was presented on behalf Mr. Yeboah’s estate, and as I find the medical assessments conducted on behalf of Zurich under section 42 of the Schedule indicate Mr. Yeboah did not meet the statutory tests for entitlement to housekeeping, attendant care, medical treatment and assessments claimed, I find that the claims are not proven on a balance of probabilities. They are, therefore, dismissed.
EXPENSES:
As noted, Zurich claims its expenses of the arbitration proceeding. Under subsection 282(11) of the Insurance Act, an arbitrator may award expenses to either party according to criteria prescribed in the regulations; in this case, as set out in section 12 of R.R.O. 1990 Regulation 664, made under Insurance Act, as amended: the “Expense Regulation.” I find only the first criteria, “each party’s degree of success in the outcome of the proceeding,” to be relevant. On that basis, Zurich, as the “successful party” in this case, would normally be entitled to its expenses, and has in fact asked for an order for expenses. However, as Zurich was the only party before me, and there is no party before me that I can order to pay Zurich’s expenses, no order can be made.
In any event, Zurich’s costs of $9,488.55 exceed the amounts permitted by regulation. Were I required to consider what expenses would be reasonable, I would fix Zurich’s arbitration expenses at $1,000, inclusive of all attendances, $149 in disbursements, and GST, on the basis of legal fees at the maximum legal aid hourly rate of $112.24.
June 16, 2011
Susan Sapin Arbitrator
Financial Services Commission of Ontario
Neutral Citation: 2011 ONFSCDRS 52 FSCO A10-001213
BETWEEN:
KWASI YEBOAH Applicant
and
ZURICH INSURANCE COMPANY LTD. (COMMERCIAL BUSINESS) Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The arbitration is dismissed.
June 16, 2011
Susan Sapin Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.