Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 59

FSCO A11-001471

BETWEEN:

NIKITA BAIN

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: James Robinson

Heard: March 3, 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, Nikita Bain, alleged that she had been injured in a motor vehicle accident on December 31, 2009. She applied for and received statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ Belair terminated or did not pay some or all of these benefits on the basis that there had been no accident. The parties were unable to resolve their disputes through mediation, and Ms. Bain applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The substantive issues in this hearing included the following:

Is the applicant entitled to caregiver benefit in the amount of $250.00 per week from December 31, 2009 to date and ongoing, less amounts paid if any?
Is the applicant entitled to an attendant care benefit in the amount of $781.39 per month from December 31, 2009 to date and ongoing, less amounts paid if any?
Is the applicant entitled to a medical benefit in the amount of $1,147.26 for treatment at Downsview Healthcare Inc., and $588.60 for transportation?
Is the applicant entitled to $100.00 per week for housekeeping expenses from December 31, 2009, less amounts paid if any?
Is the applicant entitled to payments for the cost of examinations as follows:

(a) $200.00 – Documentation fee from Century Diagnostic & Assessment Centre, December, 2010

(b) $2,509.82.- Driving evaluation from Pacific Assessment Centre, December, 2010

(d) $2,124,31 – Physiatry examination, August 10, 2010

(e) $200.00 – Sleep study administration fee, August 4, 2010.

Is the respondent insurer liable to pay the Applicant’s expenses with respect to the arbitration?
Is the applicant liable to pay the Respondent’s expenses with respect to the arbitration?
Is the applicant entitled to interest for overdue payment of benefits?

However, the preliminary issue to be determined is that of whether or not an accident occurred.

Result:

The applicant’s claims are dismissed in their entirety.
The applicant shall pay to Belair 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 satisfied me that the accident was staged.

The applicant has never appeared before the Commission nor has she ever made herself available to Belair.

The applicant failed to accompany her former counsel to the pre-hearing in this matter, which proceeded on February 16, 2012. The applicant failed to attend the motion date set for her counsel to remove herself from the record on February 7, 2014.

The applicant failed to attend an appointment for Examination under Oath pursuant to the Schedule served upon her and returnable on November 22, 2011. The Applicant also failed to attend an appointment for Examination under Oath pursuant to the Schedule served upon her and returnable on December 3, 2013.

The applicant failed to attend the hearing of this matter at 10:00 a.m. on March 3, 2014 at the Offices of the Commission, although duly served with a Notice of Hearing on November 20, 2012, both personally and through counsel.

The applicant’s former counsel confirmed on February 7, 2014 that the address of the applicant on file with the Commission remains a valid address for the applicant.

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

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

The applicant did not provide any particulars of her claims for caregiver benefits, 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 her 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.

Subsection 2(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

I am satisfied on the basis of this report that there is no reason to believe that the accident alleged by the applicant did in fact occur. Insofar as there was no accident within the meaning of the Schedule I find that the applicant is not entitled to benefits.

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 Belair’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 balance of the respondent’s disbursements are reasonable and appropriate and I accordingly award the sum of $779.23 ($689.59 plus HST in the amount of $89.64) to the respondent on account of its disbursements herein.

The respondent’s bill of costs shows docketed time for various legal professionals as follows:

13.4 hours - lawyer (2003 call)

12.9 hours – lawyer (2011 call)

6.0 hours – articling student

3.4 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 recently was represented by counsel, disclose to the respondent that she 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. The expenses associated with attendance at the motion of the Applicant’s counsel to be removed from the record are not, in my view, recoverable insofar as they do not directly relate to prosecution of the arbitration itself.

I note that the time expended in this matter substantially exceeds the time reported with respect to Commission file no. A11-001472 which arose out of the same motor vehicle accident and involved substantially the same issues and procedural steps. I am also, of course, 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 will exercise my discretion to fix the amount payable by the applicant to the respondent 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 $2,791.04 all-inclusive ($779.23 in disbursements plus $2,260.00 in fees equals $3,039.23).

April 4, 2014

James Robinson

Arbitrator

Date