Worrell v. Continental Casualty Company, 2012 ONFSCDRS 126

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 126

FSCO A11-000438

BETWEEN:

STEVE WORRELL

Applicant

and

CONTINENTAL CASUALTY COMPANY

Insurer

REASONS FOR DECISION

Before: Judith Killoran

Heard: June 25, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. Worrell did not appear and no one appeared on his behalf

Kiran Sah for Continental Casualty Company

Issues:

The Applicant, Steve Worrell, was involved in a motor vehicle accident on September 25, 2009. He applied for statutory accident benefits from Continental Casualty Company (“the Continental”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Worrell 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 the following:

Should Mr. Worrell’s Application for Arbitration be dismissed?
Is Mr. Worrell liable to pay Continental’s expenses pursuant to subsection 282(11) of the Insurance Act?

Result:

Mr. Worrell’s Application for Arbitration is dismissed.
Mr. Worrell shall pay Continental’s expenses of $1,000, inclusive of HST.

EVIDENCE AND ANALYSIS:

Mr. Worrell filed an Application for Arbitration on February 15, 2011. He claimed from Continental the following benefits: income replacement, medical, housekeeping, cost of examinations, interest and expenses. A pre-hearing discussion was scheduled for January 11, 2012 at 10:00 a.m. at the Financial Services Commission of Ontario. A representative for Continental and counsel for Continental appeared. Mr. Worrell did not appear and no one appeared on his behalf.

A pre-hearing discussion was rescheduled for April 17, 2012 at 10:00 a.m. at the Financial Services Commission. Mr. Worrell was sent a Notice of Rescheduled Pre-hearing Discussion. Counsel for Continental appeared. However, Mr. Worrell did not appear and no one appeared on his behalf. I forwarded correspondence to both parties confirming Mr. Worrell’s non-attendance and the setting of an arbitration hearing for Friday, June 22, 2012 at 10:00 a.m. at the Financial Services Commission of Ontario. I stated in the letter that Continental had given notice that it would request that Mr. Worrell’s application for accident benefits be dismissed if he did not appear on the hearing date.

A Notice of Hearing was couriered to Mr. Worrell with a request for his signature. The courier, Canpar, provided a proof of delivery report on April 19, 2012 confirming that the delivery was signed for by Mr. Worrell.

On June 22, 2012 at 10 a.m., Continental’s counsel appeared before me in this matter. I recessed the hearing until 10:30 a.m. to allow for time for Mr. Worrell to attend. However, Mr. Worrell did not attend and no one attended on his behalf.

Continental submitted that Mr. Worrell’s Application for Arbitration should be dismissed due to Mr. Worrell’s non-participation in the dispute resolution process. I note that the Notice of Hearing states that “The hearing will determine all issues in dispute between the parties under the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, enacted under the Insurance Act, R.S.O. 1990, c.I.8, as amended. You may attend this hearing in person and/or be represented. 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 find that Mr. Worrell has declined to participate in the dispute resolution process by not appearing at the hearing or either of the two pre-hearing discussions for which he received notice. Consequently, Mr. Worrell’s Application for Arbitration is dismissed.

EXPENSES:

Continental submitted that as the hearing was to determine all issues in dispute, it was entitled to an award of expenses. Despite Mr. Worrell’s non-attendance at all proceedings, Continental was required to respond to his Application for Arbitration by attending at both pre-hearings and the hearing. Continental requested $1000 in expenses. I find that Continental is entitled to $1000 in expenses, inclusive of HST.

August 17, 2012

Judith Killoran

Arbitrator

Date