Mohamed Aden v. Certas Direct Insurance Company, 2015 ONFSCDRS 126

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 126

FSCO A13-003163

BETWEEN:

MOHAMED ADEN

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Sudabeh Mashkuri

Heard: By way of written submissions

Appearances: No one appearing for Mr. Aden

John P. Desjardins for Certas Direct Insurance Company

The Applicant, Mohamed Aden, was injured in a motor vehicle accident on April 3, 2011. In a decision dated March 20, 2015, I dealt with his claims for statutory accident benefits under the Schedule.¹ I dismissed the application for arbitration, and set a timetable for written submissions on the issue of expenses.

Mr. Aden’s file was joined with three other related files, namely Ms. Khadija Sheikh (A13-003160) who is Mr. Aden’s mother; Mr. Ali Abdulkadir Sheikh Mao (A13-003170) who is Mr. Aden’s maternal uncle; and Ms. Sofia Aden (A13-003166) who is Mr. Aden’s sister. None of the applicants had legal representation. At the preliminary issues hearing on March 9, 2015, each of the applicants requested that their arbitration applications be dismissed without award of expenses. Mr. Mohamed Aden was not present and asked his mother, Ms. Sheikh, to ask for dismissal of his case without payment of expenses.

Mr. Desjardins, representing Certas Direct Insurance Company (Certas), made oral submissions at the hearing on March 9, 2015 with regards to expenses and sent in written submissions on March 10, 2015. Mr. Desjardins submitted a bill of costs on March 10, 2015, requesting $14,628.00 in total expenses for all four dismissed claims.

At the preliminary issues hearing, Mr. Aden through his mother, Ms. Sheikh, submitted that he could not afford to pay a lawyer or pay any expenses to the insurance company and did not want to pursue his claim. Mr. Aden’s mother, Ms. Sheikh, sent a letter dated March 25, 2015 signed by all the applicants asking for an adjournment of the hearing in order to find legal representation. The letter did not address the issue of expenses. Given that, I had already dismissed the applications on March 20, 2015, there was no hearing to adjourn. Mr. Desjardins responded by letter dated April 1, 2015. On April 24, 2015 Ms. Sheikh, Mr. Aden’s mother, on behalf of herself and the other applicants sent another letter stating she could not afford to pay any expenses because they are impecunious.

I have considered the case law, provided to me by Certas, as well as the oral and written submissions. However, I do not believe this matter warrants a line by line analysis of Certas’ expenses. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable. I find that Mr. Aden having failed to pursue his claim, and not succeeding on the issues in dispute, is disentitled to expenses. This matter was dismissed at the preliminary hearing stage and did not go to a full arbitration hearing and, therefore, I also find that, the amount of $14,628.00 in total for the four application, asked by Mr. Desjardins, excessive.

The applicants through their correspondence and appearance at the preliminary issues hearing made clear that they did not want to pursue their claims. The applicants did not have a legal representative and did not ask for any legal expenses. I find Certas is entitled to reasonable expenses for a claim that was not pursued by the Applicants. I therefore fix Certas’ expenses in the amount of $700.00 per applicant.

June 17, 2015

Sudabeh Mashkuri

Arbitrator

Date