Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 3

FSCO A11-001424

BETWEEN:

SATARA VANIQUE EVANS

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: Alec Fadel

Heard: December 12, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared for Ms. Evans

Anna-Marie Musson for Belair Insurance Company Inc.

Issues:

The Applicant, Satara Vanique Evans, was allegedly injured in a motor vehicle accident on December 31, 2009. She applied for and received statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ A number of issues relating to Ms. Evans’ claims arose and the parties were unable to resolve their disputes through mediation. Ms. Evans 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 of February 16, 2012, Ms. Evans failed to appear. According to the pre-hearing arbitrator’s letter, she could not be contacted by telephone. Ms. Evans’ representative at the time indicated an intention to be removed from the record noting that they would file a motion for same.

A motion was filed subsequently and the pre-hearing arbitrator removed Mazin Rooz Mazin from the record as Ms. Evans’ representative. The arbitrator noted that Ms. Evans failed to appear at the motion.

A notice of hearing was sent by FSCO to the parties on March 16, 2012, noting that a hearing would proceed on December 12, 2012 at 10:00 a.m.. Ms. Evans did not attend the hearing. I waited for 30 minutes before proceeding in order to give her an opportunity to appear. After starting the hearing at 10:30 a.m., I called Ms. Evans by telephone with the number provided to FSCO by her previous representative. No one answered and a voice system indicated that no one was available to take the call. The system did not allow me to leave voice mail.

I noted that the Notice of Hearing was properly served and indicated that the hearing would “determine all issues in dispute…” and that “[i]f 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.”

The hearing therefore proceeded.

The issues in this hearing are:

Is Ms. Evans entitled to a caregiving benefit from December 31, 2009 to date and ongoing?
Is Ms. Evans entitled to an attendant care benefit from December 31, 2009 to date and ongoing?
Is Ms. Evans entitled to a medical benefit in the amount of $2,011.41 for treatment at Downsview Health Care and $502.35 for transportation from All Ways Transport?
Is Ms. Evans entitled to a housekeeping and home maintenance benefit from December 31, 2009 to date and ongoing?
Is Ms. Evans entitled to the cost of examinations including: $1,046.53 for a follow-up in-home assessment by Century Assessment Centre; $103.44 for clinical social work, OCF-22 by Century Assessment Centre; $1,573.00 for a pre-screen sleep study by Precision?
Is Ms. Evans entitled to interest on any overdue payments?
Is Ms. Evans entitled to a special award?
Is Belair entitled to its expenses of the arbitration?
Is Ms. Evans entitled to her expenses of the arbitration?

Result:

Ms. Evans’ arbitration is dismissed.
Belair is entitled to its expenses in the amount of $750.00.

EVIDENCE AND ANALYSIS:

In the absence of any evidence in support of this arbitration, I find that there is no case for Belair to meet. I therefore granted the insurer’s request to dismiss the application for arbitration. I announced my decision orally at the hearing. In addition, I heard submissions from Belair concerning the issue of expenses.

EXPENSES:

Belair referred to an earlier court action that it initiated with the Superior Court of Justice concerning the same subject matter as that raised by the applicant in her application for arbitration. In the court action, Belair claimed that the defendant (Ms. Evans) made claims for accident benefits as a result of wilful misrepresentation or fraud. In a motion for default judgment, Belair was successful and received judgement along with substantial indemnity costs by order dated October 15, 2012. At the hearing, Belair requested that my expenses order deal with the monetary award made by the Superior Court of Justice. It also asked that I reimburse it for the filing fee for arbitration in the amount of $3,000.00 on the grounds that the arbitration was frivolous, vexatious and without merit.

My authority to deal with expenses is derived from s. 17.1 of the Statutory Powers Procedure Act (SPPA), s. 282(11) of the Insurance Act and Rule 75 of the Dispute Resolution Practice Code. Section 17.1(1) of the SPPA states that a Tribunal may “order a party to pay all or part of another party’s costs in a proceeding,” and s. 282(11) of the Insurance Act states that “an arbitrator may award all or part of such expenses incurred in respect of an arbitration proceeding.” While the insurer would like me to deal with the costs awarded to them by the Superior Court of Justice, I find this is outside of my jurisdiction. In addition, I find no jurisdiction to award payment of the assessment fee of $3,000.

Rule 75.2 of the DRPC sets out the criteria for making an expenses order and based on that criteria I find that the insurer is entitled to its expenses from the arbitration proceeding. Up to the time of the hearing, the insurer’s counsel prepared for and attended one pre-hearing meeting in person at FSCO. Since, this file was administratively combined with A11-001473 only one appearance was required for both pre-hearing meetings. In addition, counsel for the insurer attended at the hearing which clearly was not going to proceed without an adjournment if the applicant actually did attend. While a Bill of Costs was not presented, I find that the amount of $1,500.00 is reasonable in expenses to account for the insurer’s preparation and attendance at the pre-hearing and the hearing. This award applies to both arbitration files and therefore each applicant is responsible to pay $750.00 as their share of the expenses ordered.

January 9, 2013

Alec Fadel

Arbitrator

Date