Ali Ebrahem v. Intact Insurance Company, 2013 ONFSCDRS 66

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 66

FSCO A11-003503

BETWEEN:

ALI EBRAHEM

Applicant

and

INTACT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

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

Appearances: Anastasia Sukalsky for Intact Insurance Company

No one appearing for Ali Ebrahem

Background:

The Applicant, Ali Ebrahem, claims that he was injured in a motor vehicle accident on September 13, 2009. He applied for accident benefits from Intact Insurance Company (“Intact”) payable under the Schedule.¹ Disputes arose concerning certain claims for accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Ebrahem applied for arbitration of these disputes at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On May 17, 2012, a pre-hearing conference was held at the offices of the Financial Services Commission. Mr. Ebrahem was in attendance. At that time, the hearing of the issues in dispute was set to commence on April 15, 2013. This was confirmed by the pre-hearing arbitrator by letter dated May 18, 2012 which was sent by regular mail to both parties and to their legal representatives. A notice of this hearing was sent by mail by the Financial Services Commission to Mr. Ebrahem at his last known address on May 23, 2012.

Intact raised as a preliminary issue whether there was an “accident” at all. This issue was common to applications that had been filed not just by Mr. Ebrahem, but also by persons who were occupants of both vehicles allegedly involved in this incident. The hearing of this common preliminary issue was set to commence on April 15, 2013.

On April 15, 2013, Mr. Ebrahem failed to attend the hearing.

Mr. Ebrahem was represented by Pace Law Firm. Prior to April 15, 2013, Pace Law Firm alerted the Financial Services Commission and Intact to the fact that it had lost contact with the Applicant and would be seeking to get off the record.

On April 15, 2013, Alex Voudouris from Pace Law Firm attended before me and sought permission for himself, Geoffrey Williams and Pace Law Firm to be removed from the record as the Applicant’s legal representatives. For reasons explained in a separate decision, I granted this motion and permitted Mr. Voudouris to leave the hearing. The hearing proceeded in the absence of the Applicant.

Intact requested that this application be dismissed as there was no evidence whatsoever before me to support this application and the Applicant appeared to have abandoned this proceeding. Intact also sought an order for its expenses of this proceeding.

Issues:

Should this application be dismissed?
Should Intact be awarded its expenses of this proceeding pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, as amended?

Result:

This application is dismissed.
The Applicant shall pay to Intact its expenses of this proceeding, fixed in the amount of $3,000.00.

EVIDENCE AND ANALYSIS:

Request for Dismissal

The Applicant has abandoned this proceeding. He failed to attend the hearing before me and has failed for approximately 8 months to communicate with either the Financial Services Commission or his own legal representatives when he knew that a hearing was scheduled to take place on April 15, 2013. No evidence has been presented on behalf of the Applicant to support this application. I therefore dismiss this application.

Expenses

Intact has requested an order for its expenses of this proceeding, totalling a little over $4,000.00 (fees of $3,713.78 and disbursements of $335.00). Considering that Intact was completely successful in this matter and that the Applicant seems to have needlessly put the Insurer to the expense of defending his claims, I find that Intact is entitled to its reasonable expenses.

I find, however, that the expenses claimed on behalf of Intact are a bit inflated. First, the hourly rates used to calculate the fees are from the Legal Aid Tariff effective April 1, 2013 even though many of the services were provided prior to April 1, 2013. Second, I find the total number of hours spent on this matter to be somewhat high. Finally, the claimed disbursements are not supported by any actual invoices or proof of payment.

Having considered the appropriate hourly rates and the reasonable time that I find it would take to review the file, prepare a Response, prepare for and attend a pre-hearing conference and prepare for the (aborted) preliminary issue hearing (as well as other usual duties of counsel), I find it appropriate to fix Intact’s legal expenses related to this proceeding in the amount of $3,000.00, inclusive of all fees, disbursements and applicable taxes.

May 17, 2013

Richard Feldman

Arbitrator

Date