Neutral Citation: 2015 ONFSCDRS 183 FSCO A13-003999

BETWEEN:

AJMER JHUTTY Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Isabel Stramwasser Heard: April 24, 2015, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Jhutty Joe Bowcock for Certas Direct Insurance Company

Issues:

The Applicant, Ajmer Jhutty, claims that he was injured in a motor vehicle accident on July 18, 2012. He applied for statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ Disputes arose regarding Mr. Jhutty’s entitlement to benefits. The parties were unable to resolve their disputes through mediation and, in April 2013, Mr. Jhutty 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 March 22, 2013, are as follows:

Is Mr. Jhutty entitled to payments for the cost of the following examinations:
- $595.03 for an attendant care assessment provided by Jane Yonge Medical Assessment on September 6, 2012;
- $2,200.00 for a TMJ assessment by Jane Yonge Medical Assessment on September 6, 2012;
- $2,252.52 for a driver de-sensitizing assessment by Dr. J Pilowsky on November 7, 2012; and,
- $2,209.64 for a psychological assessment by Dr. J. Pilowsky on November 7, 2012?
Is Certas liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Jhutty?
Is Certas liable to pay Mr. Jhutty’s expenses in respect of the arbitration?
Is Mr. Jhutty liable to pay Certas’ expenses in respect of the arbitration?
Is Mr. Jhutty entitled to interest for the overdue payment of benefits?

Result:

The Applicant’s claims are dismissed, with costs.

EVIDENCE AND ANALYSIS:

Pre-Hearing Discussion

A pre-hearing discussion in this matter was originally scheduled for March 17, 2014 at FSCO in Toronto. However, prior to the pre-hearing discussion, the Applicant’s representatives, Lofranco Corriero Personal Injury Lawyers (“Lofranco”), requested an adjournment on the basis that they had been unable to secure instructions from their client. The adjournment was granted.

Consequently, the pre-hearing discussion took place before me on January 7, 2015 at FSCO in Toronto. Prior to the pre-hearing discussion, Lofranco served and filed a motion for an order to be removed as Mr. Jhutty’s representatives of record. The Insurer and its counsel appeared at both the pre-hearing discussion and the motion. When Mr. Jhutty did not appear, I stood the matter down for 15 minutes to give him additional time. Fifteen minutes later, Mr. Jhutty had still not appeared.

Although I was satisfied that Mr. Jhutty had been properly served with the Notice of Pre-Hearing Discussion, I considered whether to adjourn to a new date. However, I noted that the pre-hearing discussion had already been adjourned once, from March 2014, due to the Applicant’s failure to respond to communications from his then legal representative in these proceedings. I had regard to Practice Note 7, The Arbitration Pre-Hearing Discussion, and Practice Note 9, Adjournments, which provide that parties are expected to be available to participate in the pre-hearing discussion in person or by telephone and that adjournments are granted only sparingly. As a result, I found no reason to adjourn the matter again.

With regard to the motion, I was satisfied that Lofranco 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 Lofranco to withdraw.

I scheduled the hearing date for 10:00 a.m. on March 13, 2015 at the offices of FSCO in Toronto. A pre-hearing letter dated January 9, 2015, to this effect, was sent to Mr. Jhutty at his last known address. I subsequently changed the hearing date to April 24, 2015 at 10:00 a.m. at FSCO in Toronto and a formal Notice of Hearing with the new date was sent to Mr. Jhutty at his last known address.

Arbitration Hearing

The arbitration proceeded before me at 10:00 a.m. on April 24, 2015 at the offices of FSCO in Toronto. Counsel appeared again on behalf of Certas. When Mr. Jhutty did not appear, I stood the hearing down for 45 minutes to give him additional time. By 10:45 a.m., Mr. Jhutty had still not appeared and, being satisfied that he had been properly served with the Notice of Hearing at his last known address, I proceeded with the arbitration in his absence.

In the absence of any evidence from Mr. Jhutty, I find that there is no basis to his claim for accident benefits or corollary relief in the form of interest, expenses and a special award. I am satisfied that he was given ample opportunity to advance his claim. By failing to participate in these proceedings, Mr. Jhutty failed to meet the burden of proof in this arbitration. Accordingly, I dismiss his claim. I communicated this decision orally on April 24, 2015 and reserved my reasons for a written decision.

EXPENSES:

Award of Expenses

Certas claimed its expenses incurred in this arbitration and made submissions at the hearing. I award Certas its expenses of this arbitration. My decision was delivered orally on April 24, 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 Certas. Specifically, Certas was entirely successful in the arbitration, given Mr. Jhutty’s failure to participate. Next, by failing to participate in the process from on or after the initial pre-hearing discussion originally scheduled for March 2014, Mr. Jhutty prolonged the proceedings in the arbitration and rendered some or all of them unnecessary.

Quantum of Expenses

Certas seeks expenses in the amount of $500.00. It did not provide further submissions. I find it fair in the circumstances to allow this amount. 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.

CONCLUSION:

Mr. Jhutty’s claims for accident benefits are dismissed. The Insurer is entitled to its expenses of this arbitration in the amount of $500.00.

September 2, 2015

Isabel Stramwasser Arbitrator

Financial Services Commission of Ontario