REASONS FOR DECISION

Before: Arbitrator Jeffrey Rogers Heard: June 29, 2012 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mrs. Brown Mr. Bruce A. Keay, solicitor for Co-operators General Insurance Company

Issues:

The Applicant, Nadine Brown, was injured in a motor vehicle accident on May 30, 2008. She applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ The parties disagree on her entitlement to further accident benefits. They were unable to resolve their disputes through mediation, and Mrs. Brown 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 this application for arbitration be dismissed because Mrs. Brown failed to attend the hearing?
Is Co-operators entitled to its expenses of the arbitration, and if so, in what amount?

Result:

This application for arbitration is dismissed.
Mrs. Brown shall pay Co-operators its expenses of the arbitration in the amount of $1,289.53.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion in this matter was scheduled to take place on March 5, 2012, by telephone conference call. On that date, Mr. Orville Brown, the substitute decision maker for the applicant, could not be reached by telephone at the number in the Commission's records. Counsel for Mrs. Brown advised that her firm was seeking to be removed from the record as a result of a breakdown in the solicitor/client relationship.

The pre-hearing was adjourned to May 4, 2012 at the Offices of the Commission. The same date was set for hearing a motion for an order removing the solicitors for Mrs. Brown from the record.

Despite proper notice, no one attended for Mrs. Brown on May 4, 2012. The pre-hearing and the motion proceeded in her absence. An order was made removing her solicitors from the record. The hearing date was set for June 29, 2012. Mrs. Brown was notified that it was likely that the arbitration would be dismissed if no one attended on her behalf on that date. She was also notified that, in the event of dismissal, she would likely be ordered to pay some of Co-operators' expenses of the arbitration.

Despite proper notice of the hearing, no one attended on Mrs. Brown’s behalf on June 29, 2012. The application for arbitration is dismissed because Mrs. Brown presented no evidence at the hearing to support her entitlement to the accident benefits in dispute.

EXPENSES:

I find that Co-operators is entitled to its expenses of the arbitration on the basis of its success. I am satisfied that the 10.1 hours claimed for counsel is reasonable. However, I have no jurisdiction to award the claimed hourly rate of $150. The maximum hourly rates that may be awarded for counsel for insurers is the applicable rate established under the Legal Aid Services Act, 1998.² In this case, the rate is $112.24 per hour.³ Co-operators is therefore entitled to $1,133.62 for counsel fee, plus $147.37 HST.

I am also satisfied that the disbursements claimed are reasonable. However, I find no jurisdiction to award payment of the assessment fee of $3,000. Co-operators is therefore entitled to disbursements in the amount of $7.56, plus $0.98 HST.

The total amount awarded for expenses is therefore $1,289.53.

August 8, 2012

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2012 ONFSCDRS 122 FSCO A11-001524

BETWEEN:

NADINE BROWN Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

This application for arbitration is dismissed.
Mrs. Brown shall pay Co-operators its expenses of the arbitration in the amount of $1,289.53.