Neutral Citation: 2015 ONFSCDRS 155

FSCO A14-005666

BETWEEN:

MEE-SOOK DERVENIS Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

*Minor error on pg. 1 corrected on September 15, 2015 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Maggy Murray Heard: May 1, 2015, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Ms. Dervenis did not appear Angelo Sciacca for Economical Mutual Insurance Company

Issues:

The Applicant, Mee-Sook Dervenis, was injured in a motor vehicle accident on October 27, 2012. She applied for statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule¹ but Economical denied various benefits. The parties were unable to resolve their disputes through mediation, and Ms. Dervenis applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Dervenis entitled to the following medical benefits: i. $1,873.52 for treatment from Mackenzie Medical Rehab; ii. $1,455.14 for treatment from Mackenzie Medical Rehab; iii. $3,558.72 for treatment from Mackenzie Medical Rehab; iv. $764.74 for assistive devices from Alliance Diagnostics and Treatments Inc.?
Is Ms. Dervenis entitled to the following cost of examination expenses: i. $1,980 for a physiatry assessment by Alliance Diagnostics and Treatments Inc.; ii. $1,285.70 for a worksite assessment by Alliance Diagnostics and Treatments Inc.; iii. $1,980 for a neurology assessment by Alliance Diagnostics and Treatments Inc.?
Is Economical liable to pay Ms. Dervenis's expenses in respect of the arbitration?
Is Ms. Dervanis liable to pay Economical's expenses in respect of the arbitration?
Is Ms. Dervanis entitled to interest for the overdue payment of benefits?

Result:

Ms. Dervenis's claims are dismissed.
Ms. Dervenis shall pay Economical's expenses of the arbitration fixed in the amount of $1,500.00, inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Ms. Dervenis did not attend the pre-hearing on April 9, 2015, nor did her counsel. On May 1, 2015, her counsel was removed from representing her. Ms. Dervenis did not attend the arbitration hearing on May 1, 2015. No one appeared on her behalf. Economical requested that the arbitration proceed in the absence of Ms. Dervenis. I adjourned the hearing for 30 minutes to allow time for Ms. Dervenis to attend. At that time, I resumed the hearing in Ms. Dervenis's absence.

Rule 37.7 of the Dispute Resolution Practice Code — Fourth Edition 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.

I am satisfied that Ms. Dervenis received Notice of the Hearing because it was sent to her by FSCO at her last known address and no correspondence sent to her by FSCO was returned to FSCO.

The burden of proof in this arbitration proceeding lies with Ms. Dervenis. In order to establish her entitlement to benefits, she must provide evidence supporting her claims. She presented no evidence and has failed to meet the burden of proof. Consequently, her claims for statutory accident benefits, interest and expenses are dismissed.

EXPENSES:

Economical's counsel advised that 45.6 hours were spent by his office on this matter, excluding time spent on May 1, 2015, the day of the hearing. Two lawyers spent a total of 40.2 hours on this file, and two law clerks spent a total of 5.4 hours on this file. Economical presented a bill of costs and calculated the time spent on this file in accordance with the legal aid rates. Economical sought an order that Ms. Dervenis was liable to pay $4,344.81 for fees, plus $469.50 for disbursements, plus HST.

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 Ms. Dervenis was unsuccessful in all of her 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 Ms. Dervenis's conduct prolonged the proceeding. I was presented with no evidence that this proceeding was improper or vexatious. However, it appears that this proceeding was unnecessary due to Ms. Dervenis's conduct. I find that Economical is entitled to its reasonable expenses in this arbitration based on its success.

Lawyers spending over forty five hours on this file is excessive given the early stage of the proceeding. Nevertheless, 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 attending at a pre-hearing conference. I fix expenses at $1,500.00, inclusive of disbursements and HST, payable by Ms. Dervenis to Economical.

July 20, 2015

Maggy Murray Arbitrator

Financial Services Commission of Ontario