Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 101

FSCO A14-002018

BETWEEN:

OMAR WILLIAMS

Applicant

and

AVIVA INSURANCE COMPANY INC.

Insurer

Before: Maggy Murray

Heard: March 6, 2015 by telephone conference call arranged by the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared for Mr. Williams

Anne Fyfe for Aviva Canada Inc.

Issues:

The Applicant, Omar Williams, was injured in a motor vehicle accident on May 2, 2011. He applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Aviva denied payment of various benefits. The parties were unable to resolve their disputes through mediation, and Mr. Williams applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Williams entitled to receive various medical benefits?
Is Mr. Williams entitled receive various rehabilitation benefits?
Is Mr. Williams entitled to receive various cost of examination expenses?
Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Williams?
Is Aviva liable to pay Mr. Williams’s expenses in respect of the arbitration?
Is Mr. Williams liable to pay Aviva’s expenses in respect of the arbitration?
Is Mr. Williams entitled to interest for the overdue payment of benefits?

Result:

Mr. Williams’s claims are dismissed.
Mr. Williams shall pay Aviva’s expenses of the arbitration fixed in the amount of $1,500.00, inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Mr. Williams’s counsel was removed from representing him on June 3, 2014. Mr. Williams did not attend the pre-hearing on October 15, 2014 at the Financial Services Commission of Ontario (FSCO). A resumption of the pre-hearing was scheduled for February 2, 2015 by telephone conference. Two telephone attempts were made to contact him at the telephone number FSCO has on file for him, on February 2, 2015, but he could not be reached.

The arbitration hearing was scheduled for March 6, 2015 at 2:00 p.m. by telephone conference call arranged by FSCO. Two telephone attempts to contact Mr. Williams at his last known telephone number were made, one at 2:00 p.m., and again at 2:30 p.m. Both attempts were unsuccessful, with a generic recording stating that the cell phone customer was unavailable.

Aviva requested that the arbitration proceed in the absence of Mr. Williams. At 2:30 p.m., I resumed the hearing in Mr. Williams's absence.

Rule 37.9 of the Dispute Resolution Practice Code — Fourth Edition (the “Code”) provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

According to Rule 9.1(c) of the Code, FSCO can rely on a party’s last known address and telephone number contained in its records. I am satisfied that Mr. Williams received Notice of the Hearing because it was sent to him by FSCO to his last known address.

The burden of proof in this arbitration proceeding lies with Mr. Williams. In order to establish his entitlement to benefits, he must provide evidence supporting his claims. He presented no evidence and has failed to meet the burden of proof. Consequently, his claims for statutory accident benefits, interest and expenses are dismissed.

EXPENSES:

Aviva’s counsel advised that approximately 55 hours² were spent by her office on this matter. Ms. Fyfe was called to the Ontario Bar in 2012. Aviva sought an order that Mr. Williams was liable to pay $1,500 inclusive of fees, disbursements and HST, on a partial indemnity basis.

I have considered the criteria in the Expense Regulation, which are contained in Rule 75.2 of the Code. The relevant criteria are:

Each party's degree of success in the outcome of the proceeding.
Any written offers to settle that were made in accordance with the rules of practice and procedure applicable to the proceeding after the conclusion of mediation and before the conclusion of the hearing.
Whether novel issues are raised in the proceeding.
The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.

I find that Mr. Williams was unsuccessful in all of his claims. I was not advised of any written offers to settle. There were no novel issues raised in the proceeding. An important consideration is that Mr. Williams’s conduct prolonged the proceeding. I was presented with no evidence that any aspect of this proceeding was improper or vexatious. It appears that some aspects of the proceeding were unnecessary due to Mr. Williams’s conduct. I find that Aviva is entitled to its reasonable expenses in this arbitration based on its success.

The Insurer should be compensated at an appropriate rate for the services of its legal representatives in reviewing the file, preparing a Response and preparing for and participating in two pre-hearing conferences and this hearing. Aviva’s request for costs in the amount of $1,500.00 is reasonable. I fix expenses at $1,500.00, inclusive of disbursements and HST, payable by Mr. Williams to Aviva.

May 8, 2015

Maggy Murray

Arbitrator

Date