Igor Denisenko v. Guarantee Company of North America, 2012 ONFSCDRS 133

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 133

FSCO A11-001244

BETWEEN:

IGOR DENISENKO

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeffrey Rogers

Heard: August 28, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Denisenko

Ms. Rose Bilash, solicitor for Guarantee Company of North America

Issues:

The issues in this hearing are:

Should this arbitration be dismissed because Mr. Denisenko failed to attend the hearing?
Is Guarantee entitled to its expenses of the arbitration, and if so, in what amount?

Result:

The arbitration is dismissed.
Guarantee is entitled its expenses of the arbitration in the amount of $1,114.67.

EVIDENCE AND ANALYSIS:

The Applicant, Igor Denisenko, alleges that he was injured in a motor vehicle accident on October 2, 2009. He sought statutory accident benefits from Guarantee Company of North America (“Guarantee”), payable under the Schedule.¹ Guarantee refused to pay certain claimed benefits. The parties were unable to resolve their disputes through mediation, and Mr. Denisenko applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

I held a pre-hearing discussion on January 16, 2012. Mr. Denisenko attended the pre-hearing, along with his counsel. Counsel for Guarantee also attended. At the pre-hearing, the parties agreed that the following issues were in dispute in this arbitration:

Is Mr. Denisenko entitled to receive a medical benefit in the amount of $10,264.67 for treatment at Medic8, as set out in 7 treatment plans, dated between July 15, 2011 and November 22, 2011? (This issue was added to the arbitration, on consent)
Is Mr. Denisenko entitled to monthly attendant care benefits of $450.88, for services provided by A. Lyaskovska, from October 2, 2009 to October 1, 2011?
Is Mr. Denisenko entitled to weekly payments $100, for housekeeping and home maintenance services provided by A. Lyaskovska, from November 25, 2009 to October 1, 2011?
Is Mr. Denisenko precluded from applying for mediation or from entitlement to the claimed benefits, because he breached time limits imposed by the Schedules, failed to comply with his obligation to provide information required by the Schedules, or failed to attend insurer medical examinations?
Is Guarantee liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Denisenko?
Is Guarantee liable to pay Mr. Denisenko’s expenses in respect of the arbitration?
Is Mr. Denisenko liable to pay Guarantee’s expenses in respect of the arbitration?
Is Mr. Denisenko entitled to interest for the overdue payment of benefits?

I set two hearing dates at the pre-hearing. A preliminary issue hearing was scheduled for August 28, 2012. That hearing would determine whether Mr. Denisenko was precluded from proceeding with his claims for benefits. A 3-day hearing on entitlement to benefits was also scheduled, commencing on December 3, 2012.

Shortly after the pre-hearing, counsel for Mr. Denisenko informed the Commission that there had been a breakdown in his relationship with his client, and that Mr. Denisenko had been advised to retain new counsel. Mr. Denisenko did not retain new counsel. On April 13, 2012, counsel for Mr. Denisenko brought a motion for an order removing him from the record. Mr. Denisenko did not attend, and I granted the order requested.

At that time, Mr. Denisenko was in breach of a deadline I had set for delivering written submissions on the preliminary issue. I wrote to him informing him of the removal of counsel, and telling him that it appeared that he had lost interest in pursuing this arbitration. I also told him that consolidating the hearing on all issues to the date set for the preliminary issue hearing, seemed to be the most expeditious way to resolve this arbitration. My letter asked Mr. Denisenko to provide written submissions on my suggested approach, no later than April 30, 2012.

Mr. Denisenko did not provide written submissions. On April 30, 2012, I again wrote to Mr. Denisenko. I confirmed that the hearing was now scheduled to proceed on all issues on August 28, 2012. I informed him that the arbitration would be dismissed on that date if he did not participate further in the process, and that he would likely be ordered to pay some of the cost that Guarantee had incurred in responding to his claims. I urged him to get in touch with Guarantee to attempt to resolve this matter by agreement, even if he no longer intended to pursue his claim for accident benefits.

Mr. Denisenko did not contact Guarantee or the Commission and he did not attend on August 28, 2012.

Analysis:

Rule 37 of the Dispute Resolution Practice Code allows an arbitrator to proceed in the absence of a party who has been given notice of a hearing, but fails to attend. I am satisfied that Mr. Denisenko was given notice of this hearing. I am also satisfied that, given the history of this matter, giving him further notice would serve no practical purpose.

Mr. Denisenko presented no evidence to support his claims. This arbitration is therefore dismissed.

EXPENSES:

I find that Guarantee is entitled to its expenses of this arbitration on the basis of its success. I find its claim for fees and disbursements totalling $1,114.67 to be reasonable and recoverable. Guarantee is therefore entitled to its expenses of this arbitration in the amount of $1,114.67.

September 19, 2012

Jeffrey Rogers

Arbitrator

Date