Financial Services Commission of Ontario
Neutral Citation: 2014 ONFSCDRS 6 FSCO A11-003130
BETWEEN:
CATHERINE YEBOAH Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Arbitrator John Wilson Heard: May 15, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: No-one appearing for Ms. Yeboah Nicholaus de Koning for Economical Mutual Insurance Company
Issues:
The Applicant, Catherine Yeboah, claimed to have been injured in a motor vehicle accident on November 14, 2009. She applied for statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.1 Economical challenged Ms. Yeboah’s claim for benefits on the grounds that no “accident” actually occurred and that “Catherine Yeboah made up the story of the accident.”
Needless to say, the parties were unable to resolve their disputes through mediation, and Ms. Yeboah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Issues:
The issues in this hearing are:
- Should Ms. Yeboah’s claim be dismissed?
Result:
- Ms. Yeboah’s claim is dismissed.
EVIDENCE AND ANALYSIS:
At the pre-hearing which took place on May 22, 2012, Economical provided engineering evidence indicating that the supposed collision damage on the two vehicles was inconsistent with “any contact whatsoever between the two vehicles.” A preliminary issue hearing was then set to deal with the issue of whether an “accident”, as defined by the Schedule, had indeed taken place.
It is clear then that Ms. Yeboah was put on notice of Economical’s allegations concerning her accident benefit claim and was present when the preliminary issue was formally raised.
Ms. Yeboah had been represented at the pre-hearing by Mr. Elvis Viskovic of the Sal Guzzo law firm. In November 2012, that firm asked to be removed as solicitor of record due to a breakdown in the solicitor-client relationship.
After receiving submissions, I accepted that the Sal Guzzo law firm had met the requirements of the Dispute Resolution Practice Code. Indeed, Ms. Yeboah consented to their removal, and the Commission was provided with the most recent contact information for their client.
Consequently, the Sal Guzzo law firm was ordered removed as counsel of record for Ms. Yeboah.
Ms. Yeboah then advised the Commission that she did not wish to proceed with the hearing unrepresented. She did not, however, wish to withdraw her claim. Rather, she asked for time to retain new counsel and proceed with the preliminary issue hearing at a later date.
On November 28, 2012, I adjourned the preliminary issue hearing sine die with the condition that Ms. Yeboah had a maximum of 60 days to retain new counsel.
In spite of correspondence from both the Commission and the Insurer asking that she contact the Commission and provide the details of any new counsel, Ms. Yeboah did not respond further.
I received a letter from Mr. de Koning dated February 6, 2013 in which he noted that Ms. Yeboah had failed to either retain new counsel or to contact Mr. de Koning personally to set new dates for the preliminary issue hearing in this matter as was ordered in my letter of November 28, 2012.
In a letter dated February 28, 2013 addressed to both parties, I ordered that Ms. Yeboah contact the Commission within two weeks to confirm whether or not she intended to proceed with her arbitration. No response was ever received from Ms. Yeboah.
It is important to note that in this matter Ms. Yeboah personally attended at the pre-hearing and was confronted with Economical’s evidence as to the frailty, not to mention the inventiveness of her claim for accident benefits. In short, Economical had accused Ms. Yeboah of fraudulently conceiving the accident and had provided cogent evidence in support of its theory, in the form of an accident reconstruction report, which was made available to Ms. Yeboah at the pre-hearing.
Notwithstanding the failure of Ms. Yeboah to communicate with either the Commission or the Insurer or to respond to any correspondence from me, at the request of Economical, I scheduled the preliminary issue hearing as May 15 and 16, 2013 at the offices of the Financial Services Commission. I did so because the parties had already been asked to keep these dates clear for a hearing in this matter. I wrote to the parties:
I will also give Ms. Yeboah two weeks from today’s date to communicate her intention, in writing, to continue with her claim, and consequently with the preliminary issue hearing to commence on May 15. This letter should be sent both to the case administrator at FSCO and to counsel for Economical, Mr. de Koning.
What essentially remained to deal with, if Ms. Yeboah continued in her refusal to contact the Commission, was the issue of whether the arbitration should be dismissed at this time and if there should be any cost consequences for her failure to participate further in the process. In this case, however, Economical decided that it wanted to give Ms. Yeboah the benefit of the doubt and not to preclude the possibility of a full hearing.
Consequently, while the appropriate notices of hearing were sent out by the Commission to Ms. Yeboah at what she had indicated was an appropriate address, I also reiterated my previous order requiring Ms. Yeboah to inform the Commission of her intentions.
It is apparent from the Commission file that none of the notices or letters were returned to the Commission. Since they were sent to an address provided by Ms. Yeboah, and that she had attended at the original pre-hearing based on notices sent to that address, I conclude that she did in fact receive proper notice of both the hearing date and her obligation to inform the Commission of her intentions.
Under the circumstances, especially given the presence of Ms. Yeboah in the early parts of the process, I am satisfied that Ms. Yeboah was given adequate notice of the May 15, 2013 hearing date. Consequently her failure to attend at the hearing had serious consequences for her claim.
The Statutory Powers Procedure Act (SPPA) provides at section 7(1):
Effect of non-attendance at hearing after due notice
7(1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding2
In accordance with the above section, not only is it permissible to dismiss Ms. Yeboah’s claim based on her failure to attend and provide the slightest evidence to support the bona fides of her claim, but it is also permissible to proceed with Economical’s claim for expenses against her without further notice.
EXPENSES:
By failing to appear and contest, Ms. Yeboah did not merely abandon her claim. She may also be seen as inviting a finding that she admitted the detailed allegations made against her by Economical as to the bona fides of her claim.3 I note that although given an opportunity under the Dispute Resolution Practice Code to reply to Economical’s allegations as contained in its Response, no Reply was ever filed by Ms. Yeboah.
Vice-Chancellor Knight Bruce, in Barrs v. Jackson, observed:
Lord Ellenborough and the Court of King's Bench, in Outram v. Morewood, decided most accurately, with reference to the pleadings in that action at common law, that an allegation on record, upon which the issue has been once taken and formed, is between the parties taking it, conclusive according to the finding thereon, so as to estop them respectively from litigating that fact once so tried and found.4
While in other situations arbitrators have allowed a “deemed withdrawal” of an arbitration application without prejudice to an applicant’s further claims, given the specificity of Economical’s claims against Ms. Yeboah and her failure to respond to them once confronted, I am left with the impression that her claim indeed had no substance, and was concocted with the sole purpose of obtaining undeserved accident benefits from Economical. Under the circumstance, I am not inclined to consider this as a “deemed withdrawal.” Rather, if it was anything it was a tactical retreat that left the field to Economical.
Although the normal consideration in ordering expenses at the end of an arbitration is to request cost submissions from the parties, including the submission of a bill of costs, send out further notices of hearing and hold a further hearing on the issue of expenses, given the circumstances of this case I do not consider that process either appropriate or necessary.
In this case, given Ms. Yeboah’s consistent refusal to reply to the Commission or to participate in this process, I would consider such a process a waste of time of such proportion as to bring the arbitration process into disrepute. Instead, I prefer to rely on section 1.7 of the SPPA and proceed, without further notice to Ms. Yeboah, to deal with expenses.
Because of Ms. Yeboah’s apparently spurious claim, Economical had to investigate the alleged accident, commission an engineering report to make sense of the physical evidence, file a Response in this matter, and attend at pre-hearings as well as the ultimate hearing.
While I accept that it would run contrary to the consumer protection mandate of the Schedule to discourage insureds from bringing forward meritorious claims that have been denied by an insurer, I have heard nothing from Ms. Yeboah to suggest that her case has any foundation.
Despite being faced with clear, un-contradicted evidence of the weakness of her case, early on in the arbitration process she was unwilling to withdraw her claim and, by her inaction, forced Economical on to a hearing, which she could not be bothered to attend.
Under the circumstances, I accept that Ms. Yeboah was both unsuccessful in her claim and, by her actions, needlessly prolonged the hearing process. As such, I find that Ms. Yeboah should bear Economical’s expenses in defending this claim to the amounts permitted under the Expense Regulation.
I will proceed to fix this amount once I have received an estimate of the expenses incurred from Economical.
January 13, 2014
John Wilson Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2014 ONFSCDRS 6 FSCO A11-003130
BETWEEN:
CATHERINE YEBOAH Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Yeboah’s claim is dismissed.
Ms. Yeboah shall pay Economical’s reasonable expenses in this matter which I will fix following receipt of Economical’s costs outline.
Economical shall provide its costs outline within 30 days
January 13, 2014
John Wilson Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- R.S.O. 1990, c. S.22
- In The "Peerless" (1860), Lush. 103, 167 E.R. 53, the Judicial Committee of the Privy Council said that an admission in the pleadings in the case extended to matters of fact but not of law.
- 62 E.R. 1028