Ernest Adjekumhene v. Belair Insurance Company Inc., 2014 ONFSCDRS 50

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 50 FSCO A11-001472

BETWEEN:

ERNEST ADJEKUMHENE Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

REASONS FOR DECISION

Before: James Robinson Heard: February 24, 2014, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Douglas Mac Con for Belair Insurance Company Inc.

Issues:

The Applicant, Ernest Adjekumhene, alleged that he had been injured in a motor vehicle accident on December 31, 2009. He applied for and received statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.¹ Belair terminated all benefits to the applicant by letter dated July 30, 2013 on the basis that there had been no accident. The parties were unable to resolve their disputes through mediation, and Mr. Adjekumhene 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. Is the applicant entitled to income replacement benefits in the amount of $400.00 per week from January 7, 2010 to date and ongoing?

2. Is the applicant entitled to an attendant care benefit in the amount of $457.75 per month from December 31, 2009 to date and ongoing?

3. Is the applicant entitled to a medical benefit in the amount of $363.24 for transportation expenses provided by All Ways Transportation from December 31, 2009 to date and ongoing?

4. Is the applicant entitled to housekeeping/home maintenance expenses in the amount of $100.00 per week from December 31, 2009 to date and ongoing?

5. Is the applicant entitled to expenses for the cost of examinations as follows: (a) $1,046.53 – In-Home Assessment Follow-Up Assessment, August 2010 (b) $200.00 – Documentation fee, December 2010 (c) $1,950.00 – Clinical Social Work, October 2010 (d) $200.00 – Administration fee for OCF 22 Sleep Study, August 4, 2010 (e) $200.00 – Administration fee for OCF 22 Nutritional, July 22, 2010

6. Is the respondent insurer liable to pay the applicant's expenses with respect to the arbitration?

7. Is the applicant liable to pay the Respondent insurer's expenses with respect to the arbitration?

8. Is the applicant entitled to interest for overdue payment of benefits?

Result:

1. The applicant's claims are dismissed in their entirety.

2. The applicant shall pay to the respondent its expenses of the arbitration.

EVIDENCE AND ANALYSIS:

Issue 1 – Dismissal of the Applicant's Claims

I dismissed the applicant's claims in their entirety because the evidence adduced by Belair satisfies me that the accident was staged.

The applicant has never appeared before the Commission nor has he ever made himself available to Belair.

The applicant failed to attend an appointment for Examination under Oath pursuant to the Schedule served upon him and returnable on November 17, 2011. The applicant failed to attend an appointment for Examination under oath, pursuant to the Schedule, served upon him and returnable on December 3, 2013.

The applicant failed to attend the hearing of this matter at 10:00 A.M. on February 24, 2014 at the offices of the Financial Services Commission of Ontario, although duly served with a Notice of Hearing on November 16, 2012 both personally and through counsel.

I am satisfied on the basis of the evidence produced before me on the hearing date that the applicant was further notified of the impending hearing date by correspondence dated January 27, 2014 and delivered to him by pre-paid courier. I am satisfied on the basis of the representations of counsel for the respondent that such correspondence was directed to an address obtained through the efforts of a private investigator retained for that purpose, and that such correspondence was not returned nor otherwise responded to.

I am satisfied on the basis of the available evidence that the applicant was at all times aware of this proceeding and that he elected not to attend.

The Commission proceeded to hear the matter after waiting approximately one hour.

The applicant did not provide any particulars of his claims for income replacement benefit, attendant care benefits, medical benefits, housekeeping/home maintenance expenses, or expenses for the cost of examinations. This was the case notwithstanding repeated requests by the respondent insurer and notwithstanding the order of the Commission at the pre-hearing requiring him to do so.

The respondent insurer tendered in evidence the incident report of Michael J. Jenkins, B.E.Sc., P. Eng. dated February 15, 2013 prepared at its request.

The accident was alleged to have occurred when a U-Haul rental vehicle (the "Mohamoud U‑Haul") ran a stop sign and collided with the right side of a Toyota Sedan (the "Evans Toyota") in which the applicant was one of three occupants.

Mr. Jenkins' report states as follows:

The reported circumstances offered differing accounts of the collision circumstances. In particular, Ms. Evans reported that the weather was clear, the roads were dry and it was daylight, whereas Ms. Mohamoud indicated that it was raining, the roads were wet, and it was dark. Further, Ms. Evans offered two different reports, one of which indicated that she was a passenger in the Toyota and the other stating that she was the driver of the vehicle...

An assessment of the documented damage to the involved vehicles indicated that the damage to the Evans Toyota was not caused by the Mohamoud U-Haul. The absence of any documented damage to the front of the Mohamoud U-Haul confirms the determination that the two vehicles never made contact. The observed damage to the Evans Toyota indicated that the impacting vehicle or object was at least 50 cm narrower than the front of the Mohamoud U-Haul.

I am satisfied on the basis of the said report that there is no reason to believe that the accident alleged by the applicant did in fact occur. I accordingly find that the applicant is not entitled to benefits under the Schedule.

Issue 2 – Expenses

Section 12 of Ontario Regulation 664, R.R.O. 1990 (the "Expense Regulation"), prescribes the criteria which I must consider in the exercise of my discretion with respect to any award of expenses in the present application. I agree with the submission of respondent's counsel that the only such criterion relevant in the present proceeding is the "degree of success in the outcome of the proceeding." I find that the respondent is entitled to its reasonable expenses of this application.

With respect to quantum, I will deal first with the matter of the respondent's disbursements. I specifically disallow the respondent's claim for payment of its arbitration filing fee in the amount of $3,000.00. Section 1 of the Schedule to Ontario Regulation 664 permits the insured, but not the insurer, to claim an award of its filing fee. The regulatory intent is clear and I will not depart from the rule.

I find that the remainder of the respondent's disbursements are reasonable and appropriate and I accordingly award the sum of $534.04 ($472.60 plus HST in the amount of $61.44) to the respondent on account of its disbursements herein.

The respondent's Bill of Costs shows docketed time for various legal professionals as follows:

9.7 hours - lawyer (2003 call) 17.5 hours – lawyer (2011 call) 2.7 hours – articling student 0.4 hours – clerk

The respondents were put to the expense of preparing for an arbitration that was anticipated to require four hearing days. At no time did the applicant, who until very recently was represented by counsel, disclose to the respondent that he would not be attending the hearing. The respondent accordingly incurred costs in preparing for and attending upon a pre-trial and at the hearing itself.

In view of the involvement of two different lawyers in the file it is reasonable to expect that there was some duplication of effort. I am of course also constrained by the provisions of subsection 3(3) of the Schedule to the Expense Regulation and of Rule 75 of the Dispute Resolution Practice Code to apply hourly rates in accordance with Ontario Regulation 107/99 of the Legal Aid Services Act, 1998 to the Bill of Costs.

In light of the foregoing, I fix the amount payable by the applicant to the respondent with respect to legal fees at $2,260.00 ($2,000.00 plus HST in the amount of $260.00.)

The total amount of expenses payable by the applicant to the respondent is accordingly the all-inclusive amount of $2,794.04 ($534.04 in disbursements plus $2,260.00 in fees equals $2,794.04.)

March 26, 2014

James L. Robinson Arbitrator

ARBITRATION ORDER

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

1. The Application for Arbitration of the applicant Ernest Adjekumhene is dismissed.

2. The applicant Ernest Adjekumhene shall pay expenses to the respondent Belair Insurance Company Inc. in the amount of $2,794.04.

March 26, 2014

James L. Robinson Arbitrator

Footnotes

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