Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 161

FSCO A14-001310

BETWEEN:

ARASH AFRASIABI

Applicant

and

AXA INSURANCE (CANADA)

Insurer

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on May 14, 2015 and by written submisions due June 21, 2015

Appearances: No one attended for Mr. Arash Afrasiabi

Ms. Marni Miller attended for AXA Insurance (Canada)

Issues:

The Applicant, Mr. Arash Afrasiabi, was injured in a motor vehicle accident on April 3, 2011. He applied for and received statutory accident benefits from AXA Insurance Company (“AXA”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant subsequently applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, and c.I.8, as amended.

The issues in this Hearing are:

Is Mr. Afrasiabi entitled to Non-Earner Benefits?
Is Mr. Afrasiabi entitled to Medical Benefits?
Is Mr. Afrasiabi entitled to Cost of Examinations?
Is AXA liable to pay Mr. Afrasiabi’s expenses in respect of the Arbitration?
Is Mr. Afrasiabi liable to pay AXA’s expenses in respect of the Arbitration?
Is Mr. Afrasiabi entitled to interest for the overdue payment of benefits?

Result:

The Applicant’s Application for Arbitration and all claims for benefits, interest and costs are dismissed, forthwith.
AXA’s expenses are set at $1,334.63 and the Applicant is ordered to pay this cost within 30 days of this decision.

EVIDENCE AND ANALYSIS:

By way of background, on February 11, 2014, an Application for Arbitration was filed by the Applicant, Mr. Afrasiabi. The Applicant retained Mr. Charles Stitz, a lawyer from Fireman Steinmetz, to represent him in this matter. At the time that the Application for Arbitration was filed, the Applicant applied for Non-Earner Benefits from October 4, 2011 and ongoing; medical benefits in the amount of $2,276.99, for a treatment plan from MetroMed Healthcare Centre, dated June 29, 2012; and the cost of a psychological assessment for $2,000.00 from MVR Medical Assessment Centre.

Due to a breakdown in the solicitor-client relationship, on October 28, 2014 and November 3, 2014, Mr. Charles Stitz sent the Applicant two letters giving notice of his intention to remove himself as counsel of record for the Applicant. No response was received from the Applicant, so Mr. Stitz requested an order from Arbitrator DeGuire asking to be removed as counsel of record. On November 11, 2014, Arbitrator DeGuire ruled on the motion, removing Mr. Stitz as the Applicant’s counsel. As a result, the Applicant was self-represented moving forward.

On February 19, 2015, a Pre-Hearing in this case was held before Arbitrator DeGuire. The Applicant did not appear at the Pre-Hearing nor did a representative appear on his behalf. At the Pre-Hearing, an Arbitration Hearing was scheduled to take place on April 23, 2015 at 10:00 a.m., at 180 Duncan Mill Road., Toronto, Ontario. Following the Pre-Hearing, the Applicant received written notice of the time and place of the Arbitration Hearing by letter sent to his last known address.

On April 22, 2015, Ms. Miller, counsel for the Insurer, was in contact with the Applicant and agreed to the Applicant’s request to adjourn the Hearing scheduled for April 23, 2015 until May 14, 2015. At the same time, through negotiations with Insurer’s counsel, the Applicant decided to settle the file. Ms. Miller forwarded settlement documents along with releases to the Applicant via his email address. Ms. Miller gave a deadline of April 29, 2015 to the Applicant in which to return the signed documents.

On April 29, 2015, the Applicant returned the documents to the attention of Ms. Miller; however, they were not properly signed. Ms. Miller notified the Applicant via email that he must properly sign the documents, otherwise the Arbitration Hearing of May 14, 2015 would proceed and Ms. Miller would be seeking costs.

As of May 6, 2015, the Applicant still had not returned the documents. On May 12, 2015, the Applicant sent back the documents, but again they were not properly signed. Ms. Miller again notified him by telephone conversation of the error. Again, Ms. Miller gave him a deadline of signing and returning the documents before the date of the Arbitration, May 14, 2015. The Applicant failed to return the signed documents before the date of the Arbitration Hearing.

On May 14, 2015, the Arbitration Hearing proceeded as scheduled. The Applicant did not appear and Ms. Miller, counsel for the Insurer, requested that the Applicant’s Application for Arbitration be dismissed and costs awarded against the Applicant.

I am satisfied that the Applicant had been notified of all proceedings to date and was aware that he was to attend the Arbitration Hearing. I have been provided with numerous letters and emails sent to the Applicant in addition to the settlement documents and email correspondence asking for the documents to be properly signed on two separate occasions. The Applicant was aware that if the documents were not properly signed, the Arbitration Hearing would proceed and Insurer’s counsel would be asking for costs to be assessed against the Applicant.

At the Hearing, after waiting thirty minutes for the Applicant to appear, Ms. Miller brought a motion to dismiss the Applicant’s Application for Arbitration and requested costs be assessed against the Applicant. The Applicant has the onus of proof to establish his entitlement to accident benefits under his Application for Arbitration. There is insufficient evidence in his case to meet the proof for entitlement. Ms. Miller requested expenses in this matter and submitted a bill of costs for $1,334.63, based on 10.1 hours of time.

Conclusion

I find all of the above reasons are sufficient to dismiss the Application for Arbitration.

EXPENSES:

I find Ms. Miller’s request for expenses in this matter as a result of the dismissal of the Applicant’s Application for Arbitration to be reasonable and therefore, Ms. Miller’s bill of costs for $1,334.63 is approved and I order costs in the amount of $1,334.63 against the Applicant, payable within 30 days of this decision.

July 30, 2015

Jeff Musson

Arbitrator

Date