Vyacheslav Borshch v. Wawanesa Mutual Insurance Company, 2014 ONFSCDRS 26

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 26

FSCO A12-006316

BETWEEN:

VYACHESLAV BORSHCH

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Deborah Pressman

Heard: October 24, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Borsch not appearing Elena Steinberg, representative of record for Mr. Borshch, not appearing Michelle Mainprize for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Vyacheslav Borshch, claimed to have been injured in a motor vehicle accident on October 6, 2009. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Disputes arose with respect to benefits that the parties were unable to resolve through mediation, and Mr. Borshch applied for arbitration.² However, Mr. Borshch failed to participate in his arbitration process, despite proper notices.

The issues in this hearing are:

Should Mr. Borshch’s Application for Arbitration be dismissed?
Is Wawanesa entitled to its expenses in the amount of $1,500.00?

Result:

Mr. Borshch’s Application for Arbitration is dismissed.
Wawanesa entitled to its expenses in the amount of $1,500.00.

EVIDENCE AND ANALYSIS:

For the reasons that follow, Mr. Borshch’s claims are dismissed, and Wawanesa is entitled to its expenses of this arbitration in the amount of $1,500.00.

The pre-hearing discussion took place on August 19, 2013. Mr. Borshch did not appear and it proceeded in his absence. His representative, Ms. Steinberg, advised that she has been unable to locate Mr. Borshch and that she may be seeking to withdraw as his representative. I scheduled a motion to withdraw and Mr. Borshch’s arbitration hearing to take place at the same time on October 24, 2013. The motion to withdraw was vacated, as Ms. Steinberg failed to serve or file the required materials and did not appear on October 24, 2013.

I am satisfied that Mr. Borshch was given notice of his hearing at his last known address, as required by the Dispute Resolution Practice Code and the Statutory Powers Procedure Act.³ Although Mr. Boshch was advised of the consequences of his non-attendance at the hearing by my letter and Notice of Hearing dated August 21, 2013, he did not appear, and the arbitration hearing proceeded in his absence.

Mr. Borshch bears the onus of proving entitlement to the claimed accident benefits. Since he did not appear at the hearing and no evidence was presented to support his claims, this arbitration is dismissed.

EXPENSES:

I find that Wawanesa is entitled to its expenses of the arbitration, which I fix at $1,500.00.

A party’s entitlement and quantum of expenses is determined by applying criteria prescribed by the legislation.⁴ I find that only the first criterion, “each party’s degree of success in the outcome of the proceeding,” is relevant, and that Wawanesa, as the “successful party”, is entitled to its reasonable expenses.

Wawanesa claimed $1,500.00 (inclusive of HST) for its legal expenses of the arbitration. I find this to be a reasonable amount given that its representative had to prepare a Response to the Application for Arbitration, consult with her client, prepare for and attend at the pre-hearing discussion, and attend at this hearing.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, Mr. Borshch is ordered to pay Wawanesa’s expenses in the amount of $1,500.00, inclusive of HST.

February 14, 2014

Deborah Pressman Arbitrator

Date