Neutral Citation: 2012 ONFSCDRS 145 FSCO A11-001464 and A11-001440

BETWEEN:

GLENICE JEAN Applicant

and

AXA INSURANCE (CANADA) Insurer

REASONS FOR DECISION

Before: Deborah Pressman Heard: October 9, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Jean Harley Kruger for Mazin Rooz Mazin Tom Yen for AXA Insurance (Canada)

Issues:

The Applicant, Glenice Jean, was injured in two motor vehicle accidents on November 6, 2009 and December 22, 2009. Disputes arose between Mr. Jean and his insurer, AXA Insurance (Canada) (“AXA”), concerning his entitlement to accident benefits payable under the Schedule¹ and Mr. Jean applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.² Despite notices, Mr. Jean did not attend his arbitration hearing and failed to prove his claims for accident benefits. His Applications for Arbitration are dismissed.

The issues in this hearing are:

Should the Law Office of Mazin Rooz Mazin be permitted to withdraw as Mr. Jean’s representative?
Should Mr. Jean’s Applications for Arbitration be dismissed?
Is Mr. Jean liable to pay AXA’s expenses in respect of the arbitrations under subsection 282(11) of the Insurance Act?

Result:

The Law Office of Mazin Rooz Mazin is permitted to withdraw as Mr. Jean’s representative.
Mr. Jean’s Applications for Arbitration are dismissed.
Mr. Jean is liable to pay AXA’s expenses, fixed at $1,500.00, inclusive of HST, in respect of the arbitrations under subsection 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Mr. Jean did not attend his pre-hearing discussion or his arbitration hearing and failed to prove his claims for accident benefits listed in his Applications for Arbitration. Mazin Rooz Mazin, unable to reach Mr. Jean, requested to withdraw as his representative due to a breakdown in the solicitor-client relationship. For the reasons that follow, Mr. Jean’s claims are dismissed and Mazin Rooz Mazin is permitted to withdraw as his representative.

A pre-hearing discussion in these matters was held on January 24, 2012. Mr. Jean, represented by Mazin Rooz Mazin, did not attend. The pre-hearing discussion proceeded in his absence and his arbitration hearing was scheduled, without his input, to commence on October 9, 2012.³

On August 16, 2012, Mazin Rooz Mazin filed a motion to withdraw as Mr. Jean’s representative. My letter, dated August 23, 2012, notified all parties that the motion to withdraw and Mr. Jean’s arbitration hearing will proceed on October 9, 2012.⁴

The Statutory Powers Procedure Act (“SPPA”) states that parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.⁵

All correspondence, including the Notice of Hearing and Notice of Motion, was sent to Mr. Jean at the address he provided to us. Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”) provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.”

I am satisfied that the Notice of Hearing and Notice of Motion complied with the requirements of Rule 9.1(c) of the Code and section 6 of the SPPA. In addition, both notices warned Mr. Jean that non-attendance at the motion/hearing may result in the dismissal of his case. More specifically, my letter of August 23, 2012 stated the following:

In the event that Mr. Jean does not attend, then, as noted above, the motion and hearing may proceed in his absence.

Mr. Mazin may be permitted to withdraw as Mr. Jean’s representative and the hearing may proceed immediately thereafter. Mr. Jean’s Applications for Arbitration may be dismissed and Axa’s expenses of the arbitration proceeding may be awarded against him. [emphasis in original]

Notwithstanding the notices and my letter dated August 23, 2012, Mr. Jean did not appear at FSCO on October 9, 2012. I recessed the hearing for 30 minutes to allow time for Mr. Jean to attend. During the recess, our office attempted, without success, to contact Mr. Jean by phone at the number on file. By 10:30 a.m., Mr. Jean had still not attended at FSCO or returned our call.

Both the SPPA and FSCO’s Code speak to the effect of non-attendance at a hearing after due notice. Where notice of hearing has been sent to a party and a party does not attend, the tribunal may proceed in the party’s absence. Pursuant to Subsection 7(1) of the SPPA and Rule 37.7 of the Code, the hearing and motion proceeded in Mr. Jean’s absence.

AXA did not oppose Mazin Rooz Mazin’s motion to withdraw as Mr. Jean’s representative. Mr. Kruger submitted that his firm has been unable to contact Mr. Jean despite multiple attempts, as evidenced in the motion materials, and requested that they be permitted to withdraw. I am satisfied that there has been a breakdown in the solicitor-client relationship and order that the Law Office of Mazin Rooz Mazin be permitted to withdraw as Mr. Jean’s representative.

Turning now to the merits and Applications for Arbitration, in order to establish entitlement to benefits, Mr. Jean must provide evidence supporting his claims and prove his claims on a balance of probabilities. As Mr. Jean did not attend to present any evidence, he failed to establish his entitlement to the benefits. As a result, I dismiss Mr. Jean’s claims for non-earner benefits, housekeeping expenses, a special award, as well as his claim for interest on overdue payments and expenses.

EXPENSES:

AXA provided a Costs Outline and oral submissions with respect to its claim for $3,227.34 (inclusive of HST) for its legal expenses of the arbitration proceedings.

When assessing expenses, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation.⁶ I find that only the first criterion, “each party’s degree of success in the outcome of the proceeding,” is relevant in this case. Mr. Jean did not succeed in asserting his claims for benefits and is not entitled to his expenses. AXA, as the “successful party”, is entitled to its reasonable expenses.

AXA particularized over 45 hours spent in preparing for these arbitrations. However, there were only two attendances in these arbitration proceedings which did not require such a significant time to prepare. My letter dated August 23, 2012 advised AXA not to prepare for the second attendance. Therefore, I find AXA’s claim to be excessive.

Bearing in mind the overriding principle of reasonableness,⁷ I fix AXA’s expenses at $1,500.00 (inclusive of HST). This amount takes into consideration the time counsel spent preparing a Response to the Applications for Arbitration, consulting with his client, preparing for and attending at the pre-hearing discussion on January 24, 2012 and attending at the motion and hearing on October 9, 2012.

I order Mr. Jean to pay AXA’s expenses at $1,500.00, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

October 23, 2012

Deborah Pressman Arbitrator

Date

Financial Services Commission of Ontario