Kojo Armah v. Intact Insurance Company, 2013 ONFSCDRS 89

Financial Services Commission of Ontario

Neutral Citation: 2013 ONFSCDRS 89 FSCO A12-000664

BETWEEN:

KOJO ARMAH Applicant

and

INTACT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Judith Killoran Heard: April 19, 2013

Appearances: Mr. Armah did not appear and no one appeared on his behalf John P. Desjardins for Intact Insurance Company

Issues:

The Applicant, Kojo Armah, was involved in a motor vehicle accident on May 10, 2009. He applied for statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Armah 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:

1. Should Mr. Armah’s Application for Arbitration be dismissed?
2. Is Intact entitled to its expenses of the arbitration, and if so, in what amount?

Result:

1. Mr. Armah’s Application for Arbitration is dismissed.
2. Mr. Armah shall pay Intact’s expenses fixed at $1500, inclusive of disbursements and HST.

CHRONOLOGY:

• On February 15, 2012, the Commission registered Mr. Armah’s Application for Arbitration.
• On June 18, 2012, Mr. Armah notified FSCO and the insurer that he would be acting on his own behalf with respect to the FSCO proceedings.
• Both parties to the proceeding were consulted about a mutually agreeable pre-hearing date which was scheduled for January 8, 2013. A Notice of Pre-hearing Discussion was served on the parties.
• Mr. Armah did not attend at the pre-hearing scheduled for January 8, 2013 and no one attended on his behalf.
• I scheduled a second pre-hearing for April 19, 2013 at 10:00 a.m.
• On February 19, 2013, Intact filed materials with the Commission and served Mr. Armah pursuant to Rule 67.3 of the Dispute Resolution Practice Code. Intact sought to have the proceeding dismissed pursuant to Rule 68. It further relied on Rule 65 of the DRPC. The grounds for the dismissal were that Mr. Armah failed to attend at the pre-hearing and failed to respond to Intact or to the Commission with regard to his intentions in the proceeding. Intact also claimed recovery of its expenses pursuant to Rule 75.1 of the DRPC.
• Mr. Armah did not object to the dismissal of the Application for Arbitration, as required by Rule 68.3 of the DRPC.

EVIDENCE AND ANALYSIS:

On April 19, 2013 at 10:00 a.m., I began the hearing. As Mr. Armah was not present, I adjourned the hearing for thirty minutes. Mr. Armah did not appear and I proceeded with the hearing.

Intact presented its submissions in support of dismissal. I find that Mr. Armah failed to attend at two scheduled prehearings and the motion hearing, without explanation, despite being provided with notice. Also, I find that he received a copy of Intact’s motion materials on or about February 19, 2013.

I am satisfied that Mr. Armah was given notice of all proceedings in the dispute resolution process as required by the Dispute Resolution Practice Code. The Notice of Hearing specified that the matter could be disposed of in Mr. Armah’s absence. Mr. Armah bears the burden of proving entitlement to the accident benefits he claimed. As no evidence was provided to support his claims, the application for arbitration is dismissed. I provided Intact with an oral decision at the hearing.

EXPENSES:

Intact made submissions on expenses relating to the proceedings. An arbitrator’s authority to award expenses is established by subsection 292(11) of the Insurance Act, as amended. The criteria for an award of expenses is set out in Ontario Regulation 664, R.R.O. 1990 and mirrored in Rule 75 of the DRPC.

In the case before me, Mr. Armah did not participate in the dispute resolution process. He did not appear for both scheduled pre-hearings or the motion hearing. Intact was required to respond to his Application for Arbitration by attending at both proceedings and filing submissions.

Intact made submissions in support of having its expenses paid by Mr. Armah. I fix Intact’s expenses at $1500, inclusive of HST and disbursements, to be paid by Mr. Armah to Intact.

July 8, 2013

Judith Killoran Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Armah’s Application for Arbitration is dismissed.
2. Mr. Armah shall pay Intact’s expenses fixed at $1500, inclusive of disbursements and HST.

July 8, 2013

Judith Killoran Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.