Neutral Citation: 2015 ONFSCDRS 169 FSCO A11-002422

BETWEEN:

NAEEMA ALI Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

REASONS FOR DECISION

Before: Isabel Stramwasser Heard: March 6, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on April 8, 2015.

Appearances: No one appearing for Ms. Ali Peter Durant for Belair Insurance Company Inc.

Issues:

The Applicant, Naeema Ali, claims that she was injured in a motor vehicle accident on March 28, 2010. She applied for statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the applicable Accident Benefit Schedules.¹ Issues arose regarding Ms. Ali’s entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and, in July 2011, Ms. Ali applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing, as identified in the Application for Arbitration dated July 20, 2011 and the pre‑hearing letter of Arbitrator Mutch dated December 10, 2013, are as follows:

Is Ms. Ali entitled to receive weekly caregiver benefits in the amount of $300.00 from March 28, 2010 to date and ongoing?
Is Ms. Ali entitled to receive a medical benefit in the amount of $21,374.92 for massage, acupuncture and chiropractic services pursuant to a treatment plan from Osler Rehabilitation Centre dated March 28, 2010?
Is Ms. Ali entitled to attendant care benefits in the amount of $805.28 per month from March 28, 2010 to date and ongoing?
Is Ms. Ali entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week for services provided by Khadija Mahamed from March 28, 2010 to date and ongoing?
Is Ms. Ali entitled to payments for the cost of the following examinations: a. $2,026.50 for an orthopedic assessment by Assessment Direct dated July 19, 2010; b. $775.00 for a Rebuttal Report by Assessment Direct, as per invoice 61646; c. $70.00 for the preparation of an OCF 22 by Assessment Direct dated April 27, 2010; d. $70.00 for the preparation of an OCF 22 by Assessment Direct dated May 28, 2010; e. $70.00 for the preparation of an OCF 22 by Assessment Direct dated June 11, 2010; f. $70.00 for the preparation of an OCF 22 by Assessment Direct dated July 19, 2010; g. $1,014.95 for a Driving Instructor Assessment by Assessment Direct dated August 12, 2010; and, h. $1,378.72 for a nutritional assessment by GTA on August 28, 2010?
Is Belair liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Ali?
Is Belair liable to pay Ms. Ali’s expenses in respect of the arbitration?
Is Ms. Ali liable to pay Belair’s expenses in respect of the arbitration?
Is Ms. Ali entitled to interest for the overdue payment of benefits?

Result:

The Applicant’s claims are dismissed, with costs.

EVIDENCE AND ANALYSIS:

Pre-hearing Discussion

The initial pre-hearing discussion in this matter took place on January 31, 2013 at FSCO in Toronto. The parties participated by teleconference because the Applicant’s representatives, Mazin & Associates Professional Corporation (“Mazin”), advised that Ms. Ali was ill and unable to attend. Arbitrator Kominar scheduled the hearing for July 7, 8, 9, 10, 14, 15, 16 and 17, 2014 at 10:00 a.m. at FSCO’s Toronto offices. The matter was scheduled to be heard together with FSCO file number A12‑005696 belonging to a family member, Ms. Sahra Ali.

Resumption of Pre-hearing Discussion and Motion to Withdraw

A resumption of pre-hearing discussion took place on December 10, 2013 at FSCO’s offices in Toronto. Prior to the resumption, Mazin served and filed a motion for an order to be removed as Ms. Ali’s solicitors of record. Although Ms. Ali failed to attend the pre-hearing resumption, both Mazin’s motion and the pre-hearing discussion proceeded before Arbitrator Mutch.

With regard to the motion, Arbitrator Mutch was satisfied that Mazin had met the requirements of Rule 9 of the Dispute Resolution Practice Code (Fourth Edition, Updated — August 2011) (the “Code”). He found that there had been a breakdown in the solicitor-client relationship. As a result, Arbitrator Mutch permitted Mazin to withdraw.

With regard to the pre-hearing discussion, a new hearing date was scheduled for 10:00 a.m. on February 9, 10, 11, 12, 17, 18 and 19, 2015 at the offices of FSCO in Toronto. A pre-hearing letter dated December 10, 2013, setting out the hearing date in bold, was sent to Ms. Ali at her last known address.

Arbitration Hearing

On February 9, 2015, the hearing of this matter was set to proceed before me. Mr. Peter Durant, legal counsel, appeared on behalf of Belair. Ms. Naeema Ali did not appear, nor did a representative on her behalf.

I considered the possibility that Ms. Naeema Ali may not have had notice of the hearing if she had changed her address. I noted that the arbitration in this matter was to be heard together with the arbitration of a family member, Ms. Sahra Ali, and that, in the past, both Ms. Naeema Ali and that family member had resided next door to one another and used the same telephone number. I telephoned Ms. Naeema Ali at the family member’s number and a gentleman answered the telephone. He confirmed that he knew Ms. Naeema Ali, but advised that he did not have her address. I explained to the gentleman that FSCO would send a notice of hearing to Ms. Naeema Ali and that, if she did not appear before me at that time, she may be liable to pay the Insurer its expenses of the arbitration. Later, a Case Administrator from FSCO phoned the same number and spoke with a gentleman who repeated that he did not have an address for Ms. Naeema Ali.

Given that Ms. Ali has been self-represented in these proceedings since December 2013 and that she had possibly changed her address and phone number, I considered it just to adjourn the hearing to March 6, 2015 at 10:00 a.m. to satisfy myself that she had proper notice of the hearing. The onus is on the parties and their representatives to provide the Dispute Resolution Group with written notice of any change of address, telephone number and e‑mail address, pursuant to Rule 9.1 (c) of the Code. This rule also provides that the Dispute Resolution Group is entitled to rely upon the last known addresses, telephone numbers and e-mail addresses contained in its records. However, out of an abundance of caution, I relied for my decision on Rule 72.4 of the Code, which allows an adjudicator to adjourn a proceeding on his or her own initiative on such terms as he or she considers just. I sent a letter to the parties to this effect and, in addition, FSCO sent out a formal notice of hearing.

Resumption of Arbitration Hearing

The resumption of this arbitration proceeded before me at 10:00 a.m. on March 6, 2015 at the offices of FSCO in Toronto. Mr. Durant appeared again on behalf of Belair. When Ms. Ali did not appear, I stood the hearing down for 30 minutes to give her additional time. By 10:30 a.m., Ms. Ali had still not appeared and, being satisfied that she had been properly served with the Notice of Hearing at her last known address, I proceeded with the arbitration in her absence.

In the absence of any evidence from Ms. Ali, I find that there is no basis for her claim for accident benefits or the corollary relief she sought in the form of interest, expenses and a special award. I am satisfied that she was given ample opportunity to advance her claim. By failing to participate in these proceedings, Ms. Ali failed to meet the burden of proof in this arbitration. Accordingly, I dismiss her claim. I communicated this decision orally on March 6, 2015 and reserved my reasons for a written decision.

EXPENSES:

Award of Expenses

I award Belair its expenses of this arbitration. My decision was delivered orally on March 6, 2015, with written reasons to follow.

Arbitrators are bound by statute when awarding expenses. Specifically, subsection 282(11) of the Insurance Act gives me the authority to award expenses, subject to the regulations. Section 75 of the Code and section 12 of the Automobile Insurance, RRO 1990, Reg 664, s 12, as amended (the “Expense Regulation”) provide that only the following criteria shall be considered for the purposes of awarding all or part of incurred legal expenses:

each party's degree of success in the outcome of the proceeding;
any written offers to settle made in accordance with subsection (3) of the Expense Regulation or Rule 76 of the Code;
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;
whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation; and,
whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation.

I find that the first, fourth and fifth criteria support an award of expenses to Belair. Specifically, Belair was entirely successful in the arbitration, given Ms. Ali’s failure to participate. As a result, the first ground is made out. Next, by failing to participate in the process from on or after the first pre-hearing discussion in January 2013, Ms. Ali prolonged the proceedings in the arbitration and rendered some or all of the proceedings unnecessary.

Motion for Extension of Time

At the hearing, I granted Belair an extension of time for written submissions on the quantum of expenses. Rule 79 of the Code provides that, where parties to an arbitration are unable to agree on the amount of expenses, one or both must request an expense hearing within 30 days of the decision, accompanied by a bill of costs and written submissions. Counsel gave compelling evidence of personal reasons for the request. Under Rule 34.1(c), where a party fails to comply with a time requirement established by the Rules or by order or agreement, an arbitrator may impose a new timetable for compliance. Balancing the evidence of prejudice to the Insurer against the lack of evidence of prejudice to the Applicant, I found it reasonable to grant the extension. I allowed Belair 60 days from the date of the oral decision to make its submissions on expenses.

Service on the Applicant

Belair provided its written submissions and bill of costs to FSCO on April 8, 2015 and, in the cover letter, confirmed that the material had been sent to the Applicant by regular mail to Ms. Sahra Ali’s address. To date, the Applicant has provided no response. However, as above, I am satisfied that the Applicant was properly served.

Quantum of Expenses

Belair seeks expenses in the amount of $8,317.36. This represents $4,737.36 in legal fees (38.7 hours for the solicitor and 12.6 hours for a law clerk) and $3,580.00 in disbursements. The bulk of the disbursements is a request for reimbursement of the Insurer’s assessment fee in the amount of $3,000.00. The remaining $580.00 represents the costs of obtaining an OHIP summary and process service/filing fees.

Legal Fees and OHIP Summary

I find it fair in the circumstances to allow $1,500.00 for legal fees and the OHIP summary. In doing so, I have had regard to subsection 3(1) of the Schedule to the Expense Regulation and section 78.1 of the Code. The Code specifies that the applicable rate is set out in Ontario’s legal aid tariff, as set out under the Legal Aid Services Act, 1998, for civil matters before the Ontario Superior Court of Justice.

I have considered the lack of participation by the Applicant at nearly all material times in these proceedings and the fact that most of the proceedings at FSCO were perfunctory and/or took place by teleconference. I have also taken into consideration the fact that the Applicant put nine issues into dispute and that the Insurer had to prepare to defend them, in any event. As the Application for Arbitration in this matter was filed in 2011, five years of tariff rates apply. However, I am unaware of the dates on which the fees were incurred and so I have applied the 2013 tariff rate, which is in the middle of that timeline. Lastly, obtaining an OHIP summary is standard practice in FSCO proceedings and I consider it reasonable for the Insurer to have done so here.

Assessment Fee and Process Service/Filing Fees

The evidence does not support reimbursement of the Insurer’s $3,000.00 assessment fee or its process service/filing fees.

With regard to the assessment fee, section 7 of the Schedule to the Expense Regulation provides that the assessment fee(s) may be refunded if the insured failed to submit to an Insurer’s Examination or failed to provide materials required. However, the Insurer led no evidence to suggest that the Applicant failed to submit to an examination or failed to provide required information in this case. As a result, I see no authority for granting a reimbursement of the Insurer’s assessment costs here, especially given that a previous version of section 282 (11.2) of the Insurance Act (R.S.O. 1990, c. I.8 as amended by S.O. 1993, c. 10) allowed that expense, but that section was repealed in 2003.

With regard to the process service/filing fees, the Insurer did not explain this $500.00 item. While the Bill of Costs provides that counsel drafted 30 witness summonses, the evidence does not say whether any of these witnesses was actually served. Further, the Insurer did not provide evidence of any filing fees. Consequently, I do not allow this expense.

CONCLUSION:

The Applicant’s claims are dismissed. The Insurer is entitled to its expenses of this arbitration in the amount of $1,500.00.

August 24, 2015

Isabel Stramwasser Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Naeema Ali’s claims are dismissed; and,
Naeema Ali shall pay to Belair Insurance Company Inc. its expenses of this arbitration in the amount of $1,500.00.