Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 18
FSCO A12-001839
BETWEEN:
YAW DWUMAAH Applicant
and
INTACT INSURANCE COMPANY Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Maggy Murray
Heard: November 18, 2014, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Mr. Dwumaah did not appear and no one appeared on his behalf Viktoria Uretsky for Intact Insurance Company
Issues:
The Applicant, Yaw Dwumaah, was allegedly injured in an alleged motor vehicle accident on July 19, 2009. He applied for statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.1 Intact denied payment of various benefits. The parties were unable to resolve their disputes through mediation, and Mr. Dwumaah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Was Mr. Dwumaah involved in an “accident’ as defined by section 2(1) of the Schedule?
Result:
Mr. Dwumaah’s claim is dismissed.
Mr. Dwumaah shall pay Intact’s expenses of the arbitration fixed in the amount of $2,500.00, inclusive of fees, disbursements and HST.
EVIDENCE AND ANALYSIS:
Mr. Dwumaah did not attend the arbitration hearing scheduled to commence at 10:00 a.m. on Tuesday November 18, 2014. Intact requested that the arbitration proceed in the absence of Mr. Dwumaah. I adjourned the hearing until 10:30 a.m. to allow time for Mr. Dwumaah to attend. At that time, I resumed the hearing in Mr. Dwumaah'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 37.7 of the Dispute Resolution Practice Code — Fourth Edition (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.
I am satisfied that Mr. Dwumaah received Notice of the Hearing because it was sent to him by FSCO at his last known address and no correspondence sent to him by FSCO was returned to FSCO.
The burden of proof in this arbitration proceeding lies with Mr. Dwumaah. In order to establish his entitlement to benefits, he must provide evidence supporting his claim. He presented no evidence and has failed to meet the burden of proof. Consequently, his claim for statutory accident benefits is dismissed.
EXPENSES:
Intact sought an order that Mr. Dwumaah was liable to pay $8,351 inclusive of fees and disbursements. Intact provided me with its Bill of Costs, which was calculated in accordance with the Legal Aid rates.
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. Dwumaah was unsuccessful. 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. Dwumaah’s conduct prolonged the proceeding. For example, he did not appear at a pre-hearing that was scheduled for March 5, 2014. He appeared at the re-scheduled pre-hearing on May 9, 2014 at which the preliminary issue hearing was scheduled. However, he did not appear at the preliminary issue hearing that was scheduled for November 18, 2014. It appears that some aspects of the proceeding were unnecessary due to Mr. Dwumaah’s conduct. I find that Intact is entitled to its reasonable expenses in this arbitration based on its success.
Intact’s total Bill of Costs is $8,351, inclusive of disbursements for this file. This amount is higher than usual because Intact attended on two pre-hearings, and prepared material to deal with the preliminary issue hearing. However, it is excessive. For example, 46.7 hours were spent on “Pre-hearing/Motions/Preliminary issue hearing (preparation for and attendance at/anticipated attendance at preliminary issue hearing/motion to dismiss/preparation of summons, preliminary issue hearing briefs.”) This did not include file review, which was another 20.7 hours. I fix expenses at $2,500.00, inclusive of fees, disbursements and HST, payable by Mr. Dwumaah to Intact.
January 30, 2015
Maggy Murray Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 18
FSCO A12-001839
BETWEEN:
YAW DWUMAAH Applicant
and
INTACT 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. Dwumaah’s claim is dismissed.
Mr. Dwumaah shall pay Intact's expenses of the arbitration fixed in the amount of $2,500.00, inclusive of fees, disbursements and HST.
January 30, 2015
Maggy Murray Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.