Neutral Citation: 2014 ONFSCDRS 165

FSCO A13-012511

BETWEEN:

NIKITA PURI

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: September 19, 2014 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Aida Davari for Ms. Puri Meredith Harper for Unifund

Background

The Applicant, Nikita Puri, was injured in a motor vehicle accident on November 14, 2011. Disputes arose between Ms. Puri and her insurer, Unifund Assurance Company (“Unifund”), concerning her entitlement to accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”).¹ and Ms. Puri applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

A pre-hearing discussion was conducted by teleconference on May 13, 2014. Ms. Puri participated, as did her counsel, Ms. Diana Pike of Zayouna Law Firm and Ms. Margaret Morrison on behalf of Unifund. Ms. Harper, legal counsel, represented Unifund.

At that juncture, the pre-hearing arbitrator was informed that a settlement of all issues had been reached and the file was closed.

In a letter dated August 8, 2014, FSCO was advised that Unifund had never received executed settlement documents from Ms. Puri or Zayouna Law Firm.

According, a hearing of Mr. Puri’s claims was scheduled for September 19, 2014 at 2 p.m. at the offices of FSCO.

The Hearing

Ms. Davari of Zayouna Law Firm (“Zayouna”) appeared on behalf of Ms. Puri. Ms. Harper, legal counsel appeared on behalf of Unifund, as did Ms. Margaret Morrison. Ms. Puri did not appear despite being provided with notice at her last known address. The notice had not been returned.

Ms. Davari requested that Zayouna be removed as Ms. Puri’s counsel of record. She indicated that after the pre-hearing discussion, there was a communication breakdown between Ms. Puri and Zayouna. She indicated that the last contact the firm had with Ms. Puri was with Ms. Puri’s mother, on May 21, 2014. She indicated that the settlement documents were forwarded to Ms. Puri’s address, but that they were never returned.

Unifund took the position that Zayouna ought to have requested withdrawal as Ms. Puri’s representative of record at a much earlier date. Unifund could then have dealt with Ms. Puri directly and perhaps avoided today’s hearing. Unifund requested its expenses in continuing to correspond with Zayouna and in attending today’s hearing.

I agree that Zayouna could have requested permission to withdraw at an earlier date. However, I declined to award Unifund expenses as this hearing would in all likelihood have been necessary, even if Zayouna had requested withdrawal earlier.

Zayouna Law Firm is allowed to withdraw as Ms. Puri’s representative.

As Ms. Puri did not appear and no evidence was introduced supporting her claims, Unifund moved that Ms. Puri’s claims should be dismissed.

Notice was sent to Ms. Puri of today’s hearing on August 9, 2014 to her last known address. I note that the hearing notice stated that the hearing was to commence at 10 a.m. However, my letter of August 8, 2014, which was also sent to Ms. Puri’s last known address, specified 2 p.m. I believe that is Ms. Puri had appeared at FSCO offices at 10 a.m. I would have been so advised, or she would have been made aware, by the posted docket, that her hearing was to commence at 2 p.m.

No evidence was proffered supporting Ms. Puri’s claims and accordingly, they are dismissed.

EXPENSES:

Unifund asked for its expenses in responding to Ms. Puri’s Application for Arbitration.

The criteria for awarding of expenses are set out in the Expense Regulation³. Included in these criteria is “conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertaking and orders”.

By failing to communicate with her counsel, or with Unifund, her reasons (if any) for refusing to complete settlement documentation, after a settlement was reached, has unduly prolonged this proceeding, and put Unifund to unnecessary expense.

Accordingly, I fix Unifund’s expenses in preparing for, and attending today’s hearing at $500.00 (inclusive of HST).

I order Ms. Puri to pay Unifund’s expenses at $500.00, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

October 6, 2014

Stuart J. Mutch Arbitrator

Date

Financial Services Commission of Ontario