Touch Kum v. Economical Mutual Insurance Company, 2015 ONFSCDRS 160

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 160

FSCO A12-007950

BETWEEN:

TOUCH KUM

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: June 16, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing on behalf of Mr. Kum

Marni Miller for Economical Mutual Insurance Company

Background:

The Applicant, Touch Kum, claims to have been injured in a motor vehicle accident on November 8, 2010. He applied for statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Disputes arose over the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Kum applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Prior to the commencement of this hearing, Mr. Shahen Alexanian brought a motion seeking permission to withdraw as the Applicant’s legal representative on the basis that there had been a breakdown in the solicitor-client relationship between himself and the Applicant. Mr. Alexanian advised that the client failed to communicate with him, to follow his advice or to provide him with instructions with respect to this matter.

This motion was unopposed by the Insurer. It was also unopposed by the Applicant, who failed to attend the hearing of the motion on June 16, 2015. I was satisfied that the Applicant had notice of both the motion and hearing scheduled for June 16, 2015 as he was present at the pre-hearing conference on May 30, 2014 when this hearing date was set and notice of the hearing and of the motion were sent to him by mail at his last known residential address. I was also satisfied that Mr. Alexanian complied with the requirements of Rule 9.7 of the Dispute Resolution Practice Code.

I granted Mr. Alexanian’s motion and permitted him to withdraw from this proceeding as the Applicant’s legal representative. Mr. Alexanian then left the hearing room and the hearing of the merits of the Applicant’s claims proceeded in the absence of the Applicant (after having waited 30 minutes).

Issues:

The issues in this hearing, as identified by the parties in the pre-hearing letter of Lloyd (J.R.) Richards dated October 8, 2013, are as follows:

Is the Applicant entitled to receive a non-earner benefit at the rate of $185.00 per week from May 8, 2011 onwards?
Is the Applicant entitled to receive the following:

a. $1,865.15 for the cost of a total body assessment pursuant to a plan by Yorkstar Rehabilitation dated April 13, 2011?

b. The cost of rehabilitation recommended by Best Choice Medical Assessments as follows:

i. $1,058.81 pursuant to a plan dated February 11, 2011?

ii. $2,831.52 pursuant to a plan dated December 13, 2010?

iii. $1,016.48 pursuant to a plan dated December 16, 2010?

iv. $1,058.81 pursuant to a plan dated May 11, 2011?

v. $698.40 pursuant to a plan dated October 5, 2011?

vi. $1,503.80 pursuant to a plan dated April 25, 2012?

The cost of assessments recommended by Best Choice Medical Assessments as follows:

i. $1,871.62 for a neurological assessment pursuant to a plan dated December 30, 2010?

ii. $1,049.33 for a total body assessment pursuant to a plan dated March 29, 2011?

iii. $1,970.00 for an orthopaedic assessment pursuant to a plan dated August 25, 2011?

Is the Applicant entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Insurer liable to pay the expenses of the Applicant in respect of the arbitration under s. 282(11) of the Insurance Act?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

Result:

The Applicant’s claims are dismissed.
The Applicant shall pay to the Insurer its expenses of this proceeding, fixed in the sum of $2,500.00, inclusive of all fees, disbursements and any applicable taxes.

EVIDENCE AND ANALYSIS:

The Applicant failed to attend this hearing. No witnesses were called and no documents were filed on behalf of the Applicant. Thus, there was no evidence to support the Applicant’s claims and it appears that the Applicant has abandoned his application.

In the circumstances, the Insurer requested that the Applicant’s claims be dismissed. I granted this request.

EXPENSES:

The Insurer requested its expenses related to this proceeding in the total amount of approximately $3,600.00 (in accordance with the Insurer’s draft “Bill of Costs”, filed).

I note that, in this case, the Insurer had to attend before FSCO on more than the usual number of occasions due to the repeated failure of the Applicant to participate in our proceedings. As a result, the amount of expenses sought by Economical is somewhat higher than would usually be the case.

Having considered the oral and written submissions of counsel for the Insurer and the unnecessary expense to which the Insurer has been put with respect to this matter, I declared that I would grant the Insurer’s request for expenses and fix the amount of those expenses at $2,500.00, inclusive of all fees, disbursements and any applicable taxes.

July 28, 2015

Richard Feldman

Arbitrator

Date