Neutral Citation: 2013 ONFSCDRS 22

FSCO A10-000075

BETWEEN:

MOHAMMAD ARSHAD BUTT

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Jeffrey Rogers

Heard: January 15, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on January 22, 2013.

Appearances: No one appearing for Mr. Butt Ms. Tripta S. Sood, solicitor for Personal Insurance Company of Canada

Issues and background:

The Applicant, Mohammad Arshad Butt, was injured in a motor vehicle accident on January 16, 2006. He applied for and received statutory accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.¹ Personal refused to pay further benefits on the grounds that Mr. Butt's election to opt out of the benefit scheme of the Workplace Safety and Insurance Act² was made primarily for the purpose of obtaining statutory accident benefits.

The parties were unable to resolve their dispute through mediation, and Mr. Butt applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing held on September 21, 2010, the Arbitrator scheduled a preliminary issue hearing to determine the issue of the validity of Mr. Butt's election. The Arbitrator identified the issue as follows:

Is the election which Mr. Butt executed to opt out of the benefit scheme of the Workplace Safety and Insurance Act valid, in that it was not made primarily for the purpose of obtaining statutory accident benefits as provided under section 59(2) of the Schedule?

On June 8, 2012, the Workplace Safety and Insurance Tribunal ruled that Mr. Butt was in the course of employment at the time of the accident, and that he was entitled to benefits under the Workplace Safety and Insurance Act. The pre-hearing Arbitrator then scheduled the preliminary issue hearing to proceed on October 2, 2012.

On October 2, 2012, Mr. Butt appeared and requested an adjournment in order to retain counsel. The Arbitrator adjourned the hearing to January 15, 2012, for that purpose. The Arbitrator warned Mr. Butt that the hearing may well proceed on that date, if he was still unrepresented, and had no evidence that he had made arrangements to retain counsel. Mr. Butt did not appear on January 15, 2012.

The following issues arise:

Should this application for arbitration be dismissed because Mr. Butt failed to appear for the preliminary issue hearing, despite proper notice?
Is Mr. Butt liable to pay Personal its expenses of the arbitration, and if he is, in what amount?

Result:

The application for arbitration is dismissed.
Mr. Butt shall pay Personal its expenses of the arbitration in the amount of $5,254.77, inclusive of HST.

EVIDENCE AND ANALYSIS:

When Mr. Butt did not appear for the hearing, counsel for Personal tried to contact him by telephone at the two telephone numbers in the records of the Commission. She was not successful. Counsel advised that efforts to contact Mr. Butt in the week before the hearing had also been unsuccessful. Counsel submitted that the hearing should proceed in his absence. Mr. Butt has not communicated with the Commission since the hearing was adjourned for him to retain counsel.

I was satisfied that Mr. Butt had been given proper notice of the hearing, and ample opportunity to participate in it. I therefore decided to proceed in his absence.

As noted above, the issue to be determined at the preliminary issue hearing was:

Is the election which Mr. Butt executed to opt out of the benefit scheme of the Workplace Safety and Insurance Act valid, in that it was not made primarily for the purpose of obtaining statutory accident benefits as provided under section 59(2) of the Schedule?

Mr. Butt bore the onus of proving that his election was not made primarily for the purpose of obtaining statutory accident benefits.³ Mr. Butt was not entitled to proceed with this arbitration, without that proof.

Since Mr. Butt failed to prove that his election was not made primarily for the purpose of obtaining statutory accident benefits, this arbitration must be dismissed.

I denied Personal's request to address the issue of repayment of the benefits paid, since that was not an issue in this arbitration.

EXPENSES:

I find that Personal is entitled to its expenses of the arbitration because of its complete success, and the fact that Mr. Butt's conduct tended to prolong the proceeding. The result of this conduct was that there were three pre-hearing discussions and two appearances for the preliminary issue hearing.

I find Personal's claim for expenses, as set out in its Bill of Costs, to be reasonable and award the following:

Solicitor's fees $4,290.16

H.S.T. 557.72

Disbursements 360.08

H.S.T 46.81

Total $5,254.77

February 19, 2013

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario