Khadija Sheikh v. Certas Direct Insurance Company, 2015 ONFSCDRS 129

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 129

FSCO A13-003160

BETWEEN:

KHADIJA SHEIKH

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Sudabeh Mashkuri

Heard: By way of written submissions

Appearances: No one appearing for Ms. Sheikh

John P. Desjardins for Certas Direct Insurance Company

The Applicant, Khadija Sheikh, was injured in a motor vehicle accident on April 3, 2011. In a decision dated March 20, 2015, I dealt with her 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.

Ms. Sheikh’s file was joined with three other related files, namely Ms. Sofia Aden (A13-003166) who is Ms. Sheikh’s daughter; Mr. Ali Abdulkadir Sheikh Mao (A13-003170) who is Ms. Sheikh’s brother; and Mr. Mohamed Aden (A13-003163) who is Ms. Sheikh’s son. 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 claims.

At the preliminary issues hearing (which was converted to a hearing for the purposes of dismissal of the applications), Ms. Sheikh submitted that she could not afford to pay a lawyer or pay any expenses to the insurance company and did not want to pursue her claim. Subsequent to the hearing, Ms. Sheikh sent a letter to FSCO 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 on April 1, 2015. On April 24, 2015 Ms. Sheikh, 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 Ms. Sheikh having failed to pursue her 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, therefore I also find, the amount of $14,628.00 in total for the four applications, asked by Mr. Desjadins, excessive.

The applicants through their correspondence and appearance at the preliminary hearing made clear that they did not want to pursue their claims. The applicants did not have a legal representative and therefore did not ask for any legal fee 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