Neutral Citation: 2013 ONFSCDRS 77

FSCO A11-001977

BETWEEN:

MARYAN OSMAN Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Robert Bujold Heard: May 6, 2013, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: No one appeared for Ms. Osman Ian D. Kirby for Economical Mutual Insurance Company

Issues:

The Applicant, Maryan Osman, claims that she was injured in a motor vehicle accident on November 16, 2009. She applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Disputes arose regarding the payment of further benefits. Economical has taken the position that the accident was staged, and seeks repayment of benefits already paid. The parties were unable to resolve their disputes through mediation, and Ms. Osman applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Osman entitled to receive a medical benefit for various treatment plans, between January 10 and November 9, 2010, for physiotherapy from Dr. Bar, in the amount of $14,498.59, and for assistive devices, pursuant to a treatment plan of April 26, 2010, from Windermere Assessments, in the amount of $370?
Is Ms. Osman entitled to payments for housekeeping and home maintenance services, from November 16, 2009 to November 16, 2011, at a rate of $100 per week, less amounts paid?
Is Ms. Osman entitled to payments for the cost of a Functional Abilities Evaluation, on February 18, 2010, by Dr. Bar, in the amount of $979.74?
Is Economical liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Osman?
Is Economical liable to pay Ms. Osman’s expenses in respect of the arbitration?
Is Ms. Osman liable to pay Economical’s expenses in respect of the arbitration?
Is Ms. Osman entitled to interest for the overdue payment of benefits?

Result:

Ms. Osman’s claims are dismissed.
Economical is entitled to its expenses of this hearing in an amount to be determined at the conclusion of a hearing still to be held on other bifurcated issues.

Background:

The background in this case is somewhat unusual.

This matter is related to two other matters, Abdulkadir and Economical Mutual Insurance Company (A11-001975) and Ahmed and Economical Mutual Insurance Company (A11‑001978).² A pre-hearing in all three matters was conducted on April 10, 2012. At the pre‑hearing, the three matters were combined for hearing together. Dates of May 6-9 and 13-16, 2013 were set for the hearing of the substantive claims in all three matters.

In addition to the Applicants’ substantive claims, the pre-hearing also addressed issues raised by Economical in its Response to the Application for Arbitration. Specifically, Economical sought to have determined whether the Applicants had been involved in an “accident” within the meaning of the Schedule (i.e. whether or not the accident had been staged), and whether the Applicants were liable to repay benefits already received from Economical. These “preliminary issues” were bifurcated from the substantive hearing. However, only dates for the substantive hearing were set at the pre-hearing. The pre-hearing arbitrator indicated that a date for the preliminary issues hearing would be scheduled once the parties had complied with an earlier undertaking.³

The parties subsequently agreed upon November 9, 2012 for the hearing of the preliminary issues, but that date had not been confirmed by the Commission when the Applicants’ representative, Mr. Mohamed Elbassiouni, sought to withdraw his representation. In correspondence dated August 24, 2012, the pre-hearing arbitrator granted Mr. Elbassiouni’s request to withdraw as the Applicants’ representative, and gave the Applicants two weeks to confirm whether or not they intended to retain another representative. The letter of August 24, 2012 also noted that the preliminary issues hearing date of November 9, 2012 had not been confirmed by the Commission, but a Notice would be sent “should the parties (or their representative(s)) now confirm that they are available to proceed on that date…”

Economical confirmed that it was still prepared to proceed with the preliminary issues hearing on November 9, 2012, but the Commission received no further response from any of the three Applicants. The pre-hearing arbitrator wrote to the parties again on November 7, 2012 confirming this fact, and indicating that the Case Administrator would be in touch with the parties concerning a new date for the preliminary issues hearing.

Although the chronology of events regarding efforts to schedule a new date for the preliminary issues hearing is somewhat unclear, what is clear is that no new date was ever scheduled or confirmed. In correspondence dated April 25, 2013, counsel for Economical suggested that the May 6, 2013 date be used to determine not only the substantive claims but also the preliminary issues, but no confirmation or Notice to this effect from the Commission was sent to the parties.

Finally, shortly before the start of the hearing on May 6, 2013, it came to my attention that a fourth person had a pending Application for Arbitration with the Commission in respect of this accident, i.e. Mohamed and Economical Mutual Insurance Company (A12-005066). Again, the chronology of events is unclear, but for whatever reasons, a pre-hearing has yet to be scheduled in this matter, although the Application for Arbitration was received on August 30, 2012.

ANALYSIS:

Hearing of the Substantive claims:

Ms. Osman did not attend at the Commission on May 6, 2013, the date scheduled for the hearing of her substantive claims.

Rule 37.7 of the Dispute Resolution Practice Code provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Pursuant to Rule 37.7, and being satisfied that Ms. Osman had been properly served at her last known address with a Notice of Hearing for the determination of her substantive claims, the arbitration hearing on those issues proceeded in her absence.

As Ms. Osman did not attend to present any evidence, she failed to establish her entitlement to the benefits claimed. Ms. Osman’s claims were therefore dismissed.

Hearing of the Preliminary Issues:

As noted, Economical sought to have the preliminary issues determined at the May 6, 2013 hearing. I was not prepared to do so. Even though Ms. Osman did not attend to pursue her claims for further benefits, the fact remains that she did not receive any confirmation or Notice from the Commission that the May 6, 2013 date would be used to determine whether the accident had been staged or whether she should be liable to repay the benefits she has already received from Economical. These “preliminary issues” were clearly bifurcated from the substantive issues in the pre-hearing arbitrator’s letter of April 16, 2012. While the substantive hearing was set, and a Notice of Hearing sent out in respect of that hearing, a date for the preliminary issues hearing was never confirmed nor any Notice sent.

Further, I note that the same preliminary issues are germane to the fourth application (Mohamed) that is currently pending in the arbitration unit. Counsel for Economical conceded that a decision on the preliminary issues in this matter would not be binding on Ms. Mohamed, and should Ms. Mohamed defend against the same preliminary issues in her arbitration, we would end up with two hearings on whether or not the accident of November 16, 2009 was staged. Apart from questions of efficiency, the spectre of two hearings on this issue raises the possibility of inconsistent results.

In the circumstances, I have directed the Case Administrator to arrange a pre-hearing in the Mohamed matter for as soon as practicable,⁴ at which time we will arrange a date for the preliminary issues hearing. That date will then be inserted in Notices of Hearing directed to the Applicants in all four matters, i.e. Osman, Abdulkadir, Ahmed and Mohamed.⁵ In the event that we are unable to arrange a date for the preliminary issues hearing through the pre-hearing process in the Mohamed matter, a date for the preliminary issues hearing in the Osman, Abdulkadir and Ahmed matters will be fixed upon consultation with counsel for Economical.

EXPENSES:

Economical is entitled to its expenses of this hearing in an amount to be determined at the conclusion of the hearing still to be held on the bifurcated issues.

June 14, 2013

Robert Bujold Arbitrator

Financial Services Commission of Ontario