Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 167
FSCO A13-014745
BETWEEN:
OWIE OSAHON
Applicant
and
TD HOME & AUTO INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Maggy Murray
Heard: June 18, 2015, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Mr. Osahon did not appear Fergal Murphy for TD Mutual Insurance Company
Issues:
The Applicant, Mr. Owie Osahon, was injured in a motor vehicle accident on December 18, 2010. He applied for statutory accident benefits from TD Home and Auto Insurance Company (“TD”), payable under the Schedule1 but TD denied various benefits. The parties were unable to resolve their disputes through mediation, and Mr. Osahon 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 Mr. Osahon entitled to receive a medical benefit in the amount of $70.40 for services provided by Etobicoke Rehab Centre for chiropractic and massage treatments?
Is Mr. Osahon entitled to payments for the cost of examinations by Etobicoke Rehab Centre for the following:
i. $1,900 for orthopaedic assessment OCF 18 dated December 21, 2010;
ii. $1,834.13 for psychological assessment OCF 18 dated December 21, 2010?
Do Mr. Osahon’s injuries fall within the Minor Injury Guideline?
Is TD Home liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Osahon?
Is TD Home liable to pay Mr. Osahon’s expenses in respect of the arbitration?
Is Mr. Osahon liable to pay TD Home’s expenses in respect of the arbitration?
Is Mr. Osahon entitled to interest for the overdue payment of benefits?
Result:
Mr. Osahon’s claims are dismissed.
Mr. Osahon shall pay TD’s expenses of the arbitration fixed in the amount of $1,000.00, inclusive of fees, disbursements and HST.
EVIDENCE AND ANALYSIS:
Mr. Osahon did not attend the pre-hearing on January 12, 2015, nor did his counsel. On June 30, 2015, his counsel was removed from representing him. Mr. Osahon did not attend the arbitration hearing on June 18, 2015. No one appeared on his behalf. TD requested that the arbitration proceed in the absence of Mr. Osahon. I adjourned the hearing for 15 minutes to allow time for Mr. Osahon to attend. At that time, I resumed the hearing in Mr. Osahon’s absence.
Section 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S22 states:
Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
Rule 37.9 of the Dispute Resolution Practice Code — Fourth Edition2 (“the Code”) 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.
According to Rule 9.1(b) of the Code, “a party must provide the Dispute Resolution Group with his or his own name, address, telephone number …” According to Rule 9.1(c) of the Code, parties “must provide the Dispute Resolution Group with written notice of any change of the address, telephone number ... (and) the Dispute Resolution Group is entitled to rely upon the last known address, telephone number … contained in its records.”
I am satisfied that Mr. Osahon received Notice of the Hearing because it was sent to him by FSCO at his last known address and no correspondence sent to his by FSCO was returned to FSCO.
The burden of proof in this arbitration proceeding lies with Mr. Osahon. In order to establish his entitlement to benefits, he must provide evidence supporting his claims. He presented no evidence and has failed to meet the burden of proof. Consequently, his claims for statutory accident benefits, interest and expenses are dismissed.
EXPENSES:
TD’s counsel advised that 18.8 hours of lawyers’ time, plus half an hour of a law clerk’s time was spent by his office on this matter, excluding time spent on June 18, 2015, the day of the hearing. TD presented a bill of costs and calculated its time spent on this file on a partial indemnity scale, which FSCO does not use when calculating legal rates. TD sought an order that Mr. Osahon was liable to pay $1,000.00 for fees, inclusive of costs disbursements, and 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 Mr. Osahon was unsuccessful in all of his 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 Mr. Osahon’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 Mr. Osahon’s conduct. I find that TD is entitled to its reasonable expenses in this arbitration based on its success.
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 and the hearing. I fix expenses at $1,000.00, inclusive of disbursements and HST, payable by Mr. Osahon to TD.
August 14, 2015
Maggy Murray Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 167
FSCO A13--14745
BETWEEN:
OWIE ASAHON
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Osahon’s claims are dismissed.
Mr. Osahon shall pay TD’s expenses of the arbitration fixed in the amount of $1,000.00, inclusive of fees, disbursements and HST.
August 14, 2015
Maggy Murray Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Updated January 2014