Donovan Lodge v. Aviva Canada Inc., 2013 ONFSCDRS 32

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 32

FSCO A11-004206

BETWEEN:

DONOVAN LODGE

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeffrey Rogers

Heard: February 8, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Lodge

Ms. Jessica Rogers, solicitor for Aviva Canada Inc.

The issues in this hearing are:

Should the application for arbitration be dismissed because Mr. Lodge has not attended?
Is Aviva entitled to its expenses of the arbitration, and if so, in what amount?

Result:

The application is dismissed.
Aviva is entitled to its expenses of the arbitration in the amount of $1,600.

Background:

The Applicant, Donovan Lodge, was injured in a motor vehicle accident on August 3, 2009. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Disputes arose regarding his entitlement to further benefits. The parties were unable to resolve their disputes through mediation, and Mr. Lodge applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was scheduled for August 27, 2012. Mr. Lodge did not attend. His counsel attended and advised that he had lost contact with his client since October 2011. He sought an adjournment in order to make further efforts to contact his client, and make a decision about seeking to be removed from the record. He confirmed that Mr. Lodge’s last known address was the one contained in the records of the Commission. The pre-hearing was adjourned to November 16, 2012.

Mr. Lodge again did not attend on November 16, 2012. His counsel’s efforts to contact him had failed. Counsel therefore sought removal from the record. He did not have a new address for Mr. Lodge. I made an order removing counsel from the record. I decided to proceed with the pre‑hearing in Mr. Lodge’s absence, and scheduled the hearing for March 8, 2013. Mr. Lodge did not attend on March 8, 2013.

ANALYSIS:

I am satisfied that Mr. Lodge was given Notice of the 2 pre-hearings and the hearing, as required by Rules 5.7 and 7.1 of the Dispute Resolution Practice Code. The Notice of Hearing warned Mr. Lodge that, if he did not attend, the matter may be disposed of in his absence. I know of no reason not to proceed in Mr. Lodge’s absence.

Mr. Lodge bears the onus of proving entitlement to the accident benefits he claimed. Since no evidence was provided to support the claims, the application for arbitration is dismissed.

EXPENSES:

I find that Aviva is entitled to its expenses of the arbitration based on its complete success. Counsel for Aviva attended both pre-hearings and the hearing. Nevertheless, I find to be excessive, the 38.8 hours of counsel time, plus 10.7 hours by a law clerk, claimed by Aviva. I award $1,600 for expenses, inclusive of fees, disbursement and HST.

March 13, 2013

Jeffrey Rogers

Arbitrator

Date