Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 166

FSCO A11-003868

BETWEEN:

SUDI ADAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

nsurer

Minor error on page 1corrected on January 27, 2014, in accordance with the

Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Pamila Ahlfeld

Heard: December 9, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.Written submissions from Nicholaus de Koning on behalf of Economical were received on December 13, 2013.

Appearances: Gabriel Flatt, lawyer for Economical Mutual Insurance Company

Issues:

Should Ms. Adan’s arbitration be dismissed?

Result:

Ms. Adan’s application for arbitration is dismissed. Costs and expenses were to be submitted for consideration by December 13, 2013.

BACKGROUND

The Applicant, Sudi Adan, was injured in a motor vehicle accident on May 7, 2010. She applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ The parties were unable to resolve their dispute of denied benefits through mediation and the applicant made an application for arbitration.

Ms. Adan did not appear for her preliminary issue hearing on December 9, 2013. Mr. Flatt who appeared for Mr. de Koning asked that the arbitration be dismissed with an order for expenses due to Ms. Adan’s failure to attend.

EVIDENCE AND ANALYSIS:

Ms. Adan has not appeared at any of the proceedings throughout the arbitration process. She did not attend the prehearing conference, the motion hearing or the preliminary issue hearing There is no correspondence or notes on file that indicate that Ms. Adan has communicated with the Financial Services Commission other than through her previous counsels who have been permitted to be removed from the record.

I am satisfied that Ms. Adan has been notified of all of the different proceedings she was to attend via mail to her last known address. There is no indication on file that mail has been returned.

The onus is on the Applicant to establish entitlement to claims made in her Application for Arbitration. Ms. Adan has failed to meet this onus. Accordingly, I find that it is appropriate that the application for arbitration be dismissed.

EXPENSES:

When assessing expenses, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation.² I find that only the first criterion, “each party’s degree of success in the outcome of the proceeding,” is relevant in this case. Ms. Adan did not succeed in asserting her claims for benefits and is not entitled to her expenses. Economical as the “successful party”, is entitled to its reasonable expenses.

Economical requested expenses in the amount of $3,150.40. By letter on December 13, 2013, Mr. de Koning provided me with a breakdown of his costs and disbursements, including a report that had been specifically incurred for the purpose of the preliminary issue. Although the costs and disbursements are a little higher than the norm at this stage of the proceeding, I find the breakdown in these particular circumstances to be reasonable. I have also taken into consideration the fact that Economical had counsel appear for at least two in-person proceedings and the preparation in this file included preparation for a preliminary issue hearing.

Accordingly, I find that Economical is entitled to its expenses that I fix in the amount of $3,150.40.

December 19, 2013

Pamila Ahlfeld

Arbitrator