Neutral Citation: 2014 ONFSCDRS 66 FSCO A12-002161

BETWEEN:

WILLIAM SOROKA Applicant

and

UNICA INSURANCE INC. Insurer

REASONS FOR DECISION

Before: Alan Mervin Heard: March 26, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Soroka Stanislav Razenberg for Unica Insurance Inc.

Issues:

The Applicant, William Soroka, claimed to have been injured in a motor vehicle accident on January 13, 2009. He applied for and received statutory accident benefits from Unica Insurance Inc. (“Unica”), payable under the Schedule.¹ Unica terminated weekly income replacement benefits, and the parties were unable to resolve their disputes through mediation. Mr. Soroka applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Despite notices sent to Mr. Soroka, he did not attend his arbitration hearing and failed to prove his claims for accident benefits.

The issues in this hearing are:

Should Mr. Soroka’s Application for Arbitration be dismissed?
Is Mr. Soroka liable to pay Unica’s expenses in respect of his arbitration under subsection 282(11) of the Insurance Act?

Result:

Mr. Soroka’s Application for Arbitration is dismissed.
Mr. Soroka is liable to pay Unica’s expenses, fixed at $734.09, inclusive of HST.

EVIDENCE AND ANALYSIS:

Mr. Soroka failed to participate in the arbitration process and despite notices, did not attend his arbitration hearing. As a result, he failed to prove his claims for accident benefits and his Application for Arbitration is therefore dismissed. He is liable to pay Unica’s expenses, fixed at $734.09, inclusive of HST.

Mr. Soroka did not attend the pre-hearing discussion at the scheduled time of 2:00 p.m. on January 22, 2014.²

Attempts were made to reach him at the telephone numbers he had provided to FSCO, without success. Mr. Soroka’s voice mail was full, and no messages could be left. The pre-hearing discussion then proceeded in his absence.

In my letter dated January 23, 2014, sent following the pre-hearing discussion, I advised the Applicant that his non-attendance at the hearing scheduled for March 26, 2014 may result in the dismissal of his case and expenses awarded against him.

That letter contained this warning in bold type; “Mr. Soroka’s Application for Arbitration may be dismissed and Unica’s expenses of the arbitration proceeding may be awarded against him.”

The Notice of Hearing dated January 27, 2014, sent to the Applicant at his last known address,³ also contained this warning; “If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.”

I am satisfied that the Notice of Hearing complied with the requirements of Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”) and section 6 of the Statutory Powers Procedure Act (“SPPA”).

Despite the Notices and my letter of January 23, 2014, Mr. Soroka did not appear on March 26, 2014 for his arbitration hearing. The hearing recessed until 10:30 a.m. in order to allow additional time for Mr. Soroka to attend, and then proceeded in his absence.

In every arbitration, in order to establish entitlement to benefits, the applicant must provide evidence supporting his or her claims and prove the claims on a balance of probabilities. As Mr. Soroka did not attend the hearing, no evidence was led on his behalf. This arbitration is dismissed.

EXPENSES:

Unica made submissions with respect to its legal expenses of the arbitration proceedings and provided a Bill of Costs for $734.09, inclusive of HST.

Subsection 12(2) of the Expense Regulation⁴ sets out the criteria that an arbitrator shall consider in assessing expenses.

In Henri and Allstate Insurance Company of Canada,⁵ the arbitrator held that “[a] line-by-line assessment of the expenses claimed is not appropriate. Rather, the Arbitrator should make a global assessment of reasonable expenses.”

This view has been followed in numerous arbitration expense decisions. The Insurer had to prepare for two pre-hearings, a motion by his previous solicitor to be removed from the record, and file review and attendance at the hearing.

I note Arbitrator Pressman’s comments in Honaramand and Security National Insurance Co./Monnex Insurance Mgmt. Inc.,⁶ a case also involving Mr. Razenberg, where she states that, “In assessing the appropriate hourly rate for Mr. Razenberg’s services, I note that his contribution to this matter is significant. A review of past FSCO decisions⁷ indicates that arbitrators have considered and recognized circumstances where a law clerk’s contribution to the file is significant enough to warrant a higher rate than the $23 per hour rate prescribed by the Legal Aid Services Act. I agree with these decisions.”

Mr. Razenberg was instrumental in preparing this file for arbitration, and it is evident that his representation was a cost effective way of doing work on this case. In looking at the total number of hours spent on this file, the fact that most of the pre-hearing and hearing preparation was done by a licensed paralegal (at a lower rate than counsel), is an efficient and reasonable use of resources.

Under the circumstances of this case, I find that an hourly rate of $45.00 per hour for Mr. Razenberg’s services is reasonable, to reflect his contribution and handling of this matter, and that the total time billed is reasonable. The time billed by counsel has been kept to a minimum and billed in accordance with the Legal Aid Tariff, and I find that that the bill of costs that was submitted, in the amount of $734.09, not excessive.

For these reasons, I find that Unica is entitled to its legal fees as submitted in its bill of costs, in the total amount of $734.09, inclusive of applicable HST. As no disbursements were requested there is no amount awarded for disbursements.

April 16, 2014

Alan Mervin Arbitrator

Date

Financial Services Commission of Ontario