Neutral Citation: 2014 ONFSCDRS 174

FSCO A12-005066

BETWEEN:

ASLI MOHAMED Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Robert Bujold

Heard: June 27, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Ms. Mohamed Ian D. Kirby for Economical Mutual Insurance Company

Issues:

The Applicant, Asli Mohamed, claimed 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. The parties were unable to resolve their disputes through mediation, and Ms. Mohamed applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In its Response to Ms. Mohamed's Application for Arbitration, Economical disputed that an accident took place as she had reported. This decision considers the preliminary issue of whether Ms. Mohamed was involved in an "accident" as defined in section 2(1) of the Schedule. Economical also sought repayment of benefits already paid on the basis of material misrepresentation or fraud. The claim for repayment was bifurcated and will proceed to hearing with claims for repayment in three other related matters: Abdulkadir and Economical (A11‑001975), Ahmed and Economical (A11-001978) and Osman and Economical (A11‑001977). The substantive claims in these related matters were previously dismissed.

The preliminary issue in this proceeding is:

Was Ms. Mohamed injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Result:

Ms. Mohamed's claims are dismissed.
Economical is entitled to its expenses of this hearing in an amount to be determined at the conclusion of the hearing on the bifurcated issue for repayment.

EVIDENCE AND ANALYSIS:

Background:

On October 18, 2013 at 10:00 a.m., a motion by Tkatch & Associates to withdraw as Ms. Mohamed's representative and a pre-hearing discussion took place at the offices of the Commission. Mr. Bona, licensed paralegal, attended from Tkatch & Associates. Mr. Kirby, legal counsel, represented Economical. Ms. Mohamed did not appear, although a Notice of Motion (for Tkatch & Associates' motion to withdraw) and a Notice of Pre-Hearing Discussion were mailed to Ms. Mohamed at her last known address and did not get returned as undeliverable.

Tkatch & Associates' motion was supported by an Affidavit to the effect that the firm had been unable to establish any communications with Ms. Mohamed for over three years. Tkatch & Associates attempted to serve their Affidavit in support of the motion on Ms. Mohamed, but the process server was advised by a person who answered the front door of the residence that Ms. Mohamed no longer lived there and had not lived there for approximately one and a half years. That individual claimed to have no forwarding contact information for Ms. Mohamed.

Rule 9.1(c) of the Dispute Resolution Practice Code requires parties to advise the Dispute Resolution Group (DRG) of any change of address, telephone number or electronic transmission address (if any). The Rule also provides that the DRG is entitled to rely upon the last known contact information contained in its records.

I was satisfied that Tkatch & Associates had made reasonable efforts to contact Ms. Mohamed and, notwithstanding those efforts, there had been a complete breakdown in the solicitor-client relationship. As a result, Tkatch & Associates' request to withdraw as Ms. Mohamed's representative in this matter was granted.

The pre-hearing then proceeded in Ms. Mohamed's absence, and the preliminary issue of whether she had been involved in an "accident" was scheduled for June 27, 2014 at 10:00 a.m. at the offices of the Commission.²

A Notice of Hearing dated October 30, 2013, confirming the June 27, 2014 hearing, was sent to Ms. Mohamed at her last known address. The Notice of Hearing was not returned to the Commission as undeliverable.

The Preliminary Issue Hearing:

On June 27, 2014 at 10:00 a.m., Mr. Kirby attended at the Commission on behalf of Economical.

By 10:30 a.m., Ms. Mohamed had still not appeared at the offices of the Commission.

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 of the Code, and being satisfied that Ms. Mohamed had been properly served at her last known address with the Notice of Hearing, the preliminary issue hearing proceeded in her absence.

As Ms. Mohamed did not attend to present any evidence, she failed to establish that she was involved in an "accident" as defined by section 2(1) of the Schedule. An insured person must establish that an "accident" has taken place as a condition precedent to any claim for accident benefits. Ms. Mohamed's claims were therefore dismissed.

EXPENSES:

Economical is entitled to its expenses of this hearing in an amount to be determined at the conclusion of the hearing on the bifurcated claim for repayment.

October 30, 2014

Robert Bujold Arbitrator

Financial Services Commission of Ontario