Sahra Ali v. Belair Insurance Company Inc., 2015 ONFSCDRS 170

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 170

FSCO A12-005696

BETWEEN:

SAHRA 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, Sahra Ali, claims that she was injured in a motor vehicle accident on March 28, 2010. She applied for and received statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ Disputes arose regarding Ms. Ali’s entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and, in September 2012, Ms. Ali 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, as identified in the Application for Arbitration dated September 11, 2012, and the pre-hearing letter of Arbitrator Schnapp dated September 16, 2013 are as follows:

Is Ms. Ali entitled to receive medical benefits in the amount of $20,630.41 for treatment recommended by Osler Rehabilitation Centre and $1,956.50 for treatment recommended by Parvez Ansari of Assessment Direct for counselling promoting health, as set out in the Report of Mediator dated August 14, 2012?
Is Ms. Ali entitled to attendant care benefits in the amount of $816.38 per month from April 12, 2010 to March 28, 2012, less amounts paid, for services provided by Ahlaama Mohammed?
Is Ms. Ali entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from June 30, 2010 to March 28, 2012, for services provided by Ahlaama Mohammed?
Is Ms. Ali entitled to payments for the cost of the eight following examinations performed by Assessment Direct?

a. $140.00, pursuant to invoice #360498;

b. $775.00 for a rebuttal report for attendant care, pursuant to invoice #61306;

c. $113.00 for clinical notes and records, pursuant to invoice #65692;

d. $70.00 for completion of an OCF-22, pursuant to invoice #88292;

e. $70.00 for completion of an OCF-22, pursuant to invoice #88293;

f. $70.00 for completion of an OCF-22, pursuant to invoice #88294;

g. $70.00 for completion of an OCF-22, pursuant to invoice #88295; and,

h. $70.00 for completion of an OCF-22, pursuant to invoice #88296.

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 September 12, 2013, by teleconference organized by ADR Chambers. Arbitrator Schnapp scheduled the hearing for November 24, 25 and 26, 2014 at 10:00 a.m. at ADR Chambers in Toronto.

Rescheduled Hearing Date

However, the hearing date was subsequently rescheduled to February 9, 10, 11, 12, 17, 18 and 19, 2015 at FSCO’s offices in Toronto to be heard together with FSCO file number A11‑002422 belonging to a family member, Ms. Naeema Ali.

Hearing and Motion to Withdraw

On February 9, 2015, the hearing of this matter was set to proceed before me. Prior to the hearing, the Applicant’s representatives, Ipacs Law Office (“Ipacs”), served and filed a motion for an order to be removed as Ms. Ali’s representatives of record. Mr. Peter Durant, legal counsel, appeared at both the hearing and the motion on behalf of Belair. Ms. Sahra Ali did not appear.

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

With regard to the hearing, I noted that the arbitration of this matter was scheduled to be heard together with the arbitration of a family member and that I had adjourned the family member’s hearing to 10:00 a.m. on March 6, 2015 at the offices of FSCO in Toronto. In the interest of hearing both matters together, I adjourned the Applicant’s hearing to the same time, date and place. The Applicant was sent a Notice of Hearing to this effect to her last known address.

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 failed to 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 and expenses. 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

At the hearing, Belair asked for its expenses of this arbitration. I award Belair these expenses. 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. Next, by failing to participate in the process from on or after the pre-hearing discussion in September 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 to make 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 any 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 last known address. To date, the Applicant has provided no response.

Quantum of Expenses

Belair seeks expenses in the amount of $9,306.29. This represents $5,806.29 in legal fees (45 hours for the solicitor and 24 hours for a law clerk) and $3,500.00 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 $500.00 represents the costs of process service/filing fees.

Legal Fees and Process Service/Filing Fees

I find it fair in the circumstances to allow $1,500.00 for legal fees and process service/filing fees. 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.

With regard to the legal fees, 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 seven 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 2012, four years of tariff rates apply. However, I am unaware of the dates on which the fees were incurred and so I have applied an average between the 2013 and 2014 tariff rates.

The Insurer did not explain its $500.00 item for process service/filing fees. While the Bill of Costs provides that counsel drafted 30 witness summonses, the evidence does not say whether any of those witnesses was actually served. Given that the hearing was set to proceed on the day that the Applicant moved to go off the record, I find it reasonable to allow an amount for process service. However, the Insurer did not provide evidence of any filing fees.

Assessment Fee

The evidence does not support reimbursement of the Insurer’s $3,000.00 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.

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