Neutral Citation: 2012 ONFSCDRS 115

FSCO A11-002160

BETWEEN:

ELIZABETH GOMES Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: May 18, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing on behalf of the Applicant Darrell March appearing for Wawanesa Mutual Insurance Company

Background:

The Applicant, Elizabeth Gomes, claims to have been injured in a motor vehicle accident on January 24, 2010. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain benefits. The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Application for Arbitration was filed on July 8, 2011. The Insurer filed its response on or about July 15, 2011. The pre-hearing conference in this matter was scheduled to take place on February 22, 2012. At that time, the Applicant failed to attend. Gary Mazin indicated that his firm had been unable to communicate with or obtain instructions from the Applicant for several months and that, unless they were able to rectify the situation, his firm intended to bring a motion to be removed from the record as the Applicant’s legal representatives.

At the pre-hearing conference, the hearing of this arbitration was scheduled for May 18, 2012. In my letter to the Applicant dated February 22, 2012, I explained that her attendance on May 18, 2012 was mandatory and that, if she failed to attend, the hearing would proceed in her absence and that, “In the absence of evidence from the Applicant, it is likely that her Application will be dismissed and the Insurer may then seek compensation for its legal expenses.” I also indicated, however, that if the Applicant attended before me, I was prepared to convert the hearing into a pre-hearing conference.

On May 18, 2012, the Applicant did not attend the hearing. I first heard and granted a motion in which Mazin, Rooz, Mazin sought to be removed from the record as the Applicant’s representatives. I then dealt with the merits of this application and the issue of the expenses of this arbitration proceeding.

Issues:

According to the Application for Arbitration, the issues in this hearing are:

Is the Applicant entitled to attendant care benefits of $814.63 per month from January 24, 2010 onwards?
Is the Applicant entitled to the following medical benefits:

a. The cost ($879.64) of treatment recommended by Assessment Direct in a plan dated January 24, 2010?

b. The cost ($1,976.57) of treatment recommended by Universal Rehabilitation Centre in a plan dated January 25, 2010?

c. The cost ($261.16) of treatment recommended by Universal Rehabilitation Centre in a plan dated January 27, 2010?

d. The cost ($120.00) of treatment recommended by Universal Rehabilitation Centre in a plan dated February 3, 2010?

Is the Applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from January 24, 2010 onwards for the services provided by Ross Fyer?
Is the Applicant entitled to the following:

a. The cost ($2,635.80) of an attendant care and psychological assessment by Assessment Direct?

b. The cost ($200.00) of a nutritional assessment by GTA Assessments?

c. The cost ($1,054.88) of an initial assessment and several disability certificates by Universal Injury Rehabilitation Centre.

Is the Applicant entitled to interest for the overdue payment of benefits?
Is the Insurer liable to pay the Applicant’s expenses in respect of the arbitration?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration?

Result:

This application is dismissed.
The Applicant shall pay to the Insurer its expenses of this arbitration proceeding, fixed in the amount of $1,500.00 (inclusive of all fees, disbursements and any applicable taxes).

EVIDENCE AND ANALYSIS:

In the absence of any evidence in support of this arbitration, I find that there is no case for the Insurer to meet. I therefore granted the Insurer’s request that this application be dismissed. This was announced orally at the hearing. I then heard submissions from counsel for the Insurer with respect to the issue of expenses.

EXPENSES:

The Insurer is seeking its expenses of this proceeding. The Bill of Costs prepared by Insurer’s counsel was of limited assistance as it was not prepared using the appropriate Legal Aid rates permissible in FSCO proceedings. The Insurer is claiming approximately 10 hours of work by lawyers (about 8 hours by Darrell March and about 2 hours by a more junior counsel) and about 7 hours of work by a law clerk. This work by the Insurer’s legal representatives was related to reviewing the Application, preparing a Response, correspondence, preparing for a pre-hearing conference and attending before me on February 22, 2012 and May 18, 2012. This does not seem to me to be an unreasonable amount of time to have spent on this matter. By applying the hourly rates that are permitted to the total reasonable number of hours spent on this matter and taking into consideration HST and some modest disbursements, I find that the Insurer is entitled to its expenses, fixed in the amount of $1,500.00 (inclusive of all fees, disbursements and any applicable taxes).

July 19, 2012

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario