Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 142

FSCO A11-002462

BETWEEN:

SAMY NASSIF

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

Before: Alec Fadel

Heard: August 21, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared for Mr. Nassif

Ashleigh Leon for Economical Mutual Insurance Company

Issues:

The Applicant, Samy Nassif, was injured in a motor vehicle accident on January 21, 2010. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ A dispute arose concerning the Mr. Nassif’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Nassif applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Background

At the pre-hearing of this matter on July 24, 2012, Mr. Nassif’s then solicitor requested to be removed from the record as Mr. Nassif’s representative. Mr. Nassif did not appear at the pre-hearing. A proper motion was served and filed noting September 21, 2012 at 11:00 a.m. as the date the motion would be heard. The motion proceeded at 11:20 a.m.. After hearing submissions and reviewing the filed materials, I granted the requested order and Mazin Rooz Mazin were removed as solicitors of record for Mr. Nassif.

The issues in this hearing are:

Should Mr. Nassif’s application for arbitration be dismissed?
Is Mr. Nassif liable to pay Economical’s expenses pursuant to subsection 282(11) of the Insurance Act?

Result:

Mr. Nassif’s application for arbitration is dismissed.
Mr. Nassif shall pay Economical’s expenses in the amount of $500.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Mr. Nassif filed an application for arbitration on July 26, 2011. He claimed the following benefits from Economical: an ongoing income replacement benefit; an ongoing attendant care benefit; medical benefits; an ongoing housekeeping benefit; cost of examinations, interest, expenses and a special award.

A pre-hearing discussion took place on July 24, 2012 at the FSCO. Despite being sent notice for the pre-hearing, Mr. Nassif failed to appear. By letter dated July 24, 2012, I informed Mr. Nassif that a hearing date was set for September 21, 2012 concerning the issues that are in arbitration. I wrote that he must attend and warned that a hearing would proceed without his attendance that may result in a dismissal of his arbitration along with a potential expenses award made against him.

In addition, FSCO sent a notice of hearing to Mr. Nassif on July 25, 2012, setting out the date of hearing and stated that if Mr. Nassif did not attend his case could be dismissed in his absence. This notice was sent to the last known address on file and confirmed by Mr. Nassif’s prior solicitor to be his current address. The notice was not returned to FSCO.

On September 21, 2012 at 11 a.m., in accordance with the notice of hearing, Economical’s counsel appeared before me in this matter. Mr. Nassif did not attend. I delayed the start of the hearing until 11:30 a.m. to allow for time for Mr. Nassif to attend. I also telephoned Mr. Nassif at the phone number on file which was confirmed to be his current phone number by his prior counsel. Mr. Nassif did not answer my call and no voice mail system was in place to take my message.

I confirm that the notice of hearing stated:

The hearing will determine all issues in dispute between the parties under the Statutory Accident Benefits Schedule – Effective September 1, 2010, 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. Nassif has declined to participate in the dispute resolution process by not appearing at today’s hearing, the prior motion brought by his solicitors or the pre-hearing discussion. Therefore, Mr. Nassif’s application for arbitration is dismissed.

EXPENSES:

Economical submitted that it was entitled to an award of expenses. Although Mr. Nassif failed to appear at the proceedings, Economical was required to respond to his application for arbitration and attend at both the pre-hearing and the hearing. Economical requested $750.00 in expenses. Since this file was administratively combined with A11-002424 which was also dismissed with expenses, I find $500.00, inclusive of HST to be reasonable.

October 2, 2012

Alec Fadel

Arbitrator

Date