Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 185 FSCO A14-004839

BETWEEN:

DEEPANSHU JAIN Applicant

and

WESTERN ASSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Isabel Stramwasser Heard: August 21, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on August 21, 2015. Appearances: No one appearing for Mr. Jain Jeffrey Pasternak for Western Assurance Company

Issues:

The Applicant, Deepanshu Jain, claims that he was injured in a motor vehicle accident on September 25, 2013. He applied for statutory accident benefits from Western Assurance Company (“Western Assurance”), payable under the Schedule.¹ Disputes arose regarding Mr. Jain’s entitlement to benefits. The parties were unable to resolve their disputes through mediation, and, on June 2014, Mr. Jain 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 May 21, 2014 and in an email from the Applicant’s former representatives, Lofranco Corriero Personal Injury Lawyers (“Lofranco”), dated June 26, 2014, are as follows:

1. Is Mr. Jain entitled to medical benefits in the amount of $1,034.83 for chiropractic and massage treatment, as recommended by Complete Rehab on March 17, 2014?

2. Is Mr. Jain entitled to payments for the cost of the following examinations from Cambridge Medical Assessments: a. $2,486.00 for an orthopedic assessment dated January 21, 2013; b. $1,585.32 for an in-home/attendant care assessment dated November 3, 2013; and, c. $1,595.32 for a psychological assessment dated April 14, 2014?

3. Is Western Assurance liable to pay Mr. Jain’s expenses in respect of the arbitration?

4. Is Mr. Jain liable to pay Western Assurance’s expenses in respect of the arbitration?

5. Is Mr. Jain entitled to interest for the overdue payment of benefits?

Result:

1. The Applicant’s claims are dismissed, with costs.

EVIDENCE AND ANALYSIS:

Pre-hearing Discussion

The pre-hearing discussion in this matter took place before me on July 23, 2015 at FSCO in Toronto. Prior to the pre-hearing, Lofranco served and filed a motion for an order to be removed as Mr. Jain’s representatives of record. The Insurer and its counsel appeared at both the motion and the pre-hearing discussion. Mr. Jain failed to appear at either the motion or the pre-hearing discussion, despite having been given proper notice by Lofranco (by way of three letters to his last known address, dated June 22, 2015 and July 9, 2015 by regular mail and July 14, 2015 by courier).

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. In particular, there had been no response to Lofranco’s numerous and reasonable efforts to communicate with Mr. Jain since November 2014. As a result, I permitted Lofranco to withdraw.

With regard to the pre-hearing discussion, I scheduled a hearing date for 10:00 a.m. on August 21, 2015 at the offices of FSCO in Toronto. A pre-hearing letter dated July 24, 2015 was sent to Mr. Jain at his last known address, with the hearing date in bold. FSCO also sent Mr. Jain a Notice of Hearing.

Arbitration Hearing

The arbitration proceeded before me at 10:00 a.m. on August 21, 2015 at the offices of FSCO in Toronto. The Insurer’s legal counsel appeared again on behalf of Western Assurance. When Mr. Jain did not appear, I stood the hearing down for 45 minutes to give him additional time. By 10:45 a.m., Mr. Jain 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. Jain, I find that there is no basis to his claim for accident benefits or corollary relief sought in the form of interest and expenses. I am satisfied that he was given ample opportunity to advance his claim. By failing to participate in these proceedings, Mr. Jain failed to meet the burden of proof in this arbitration. Accordingly, I dismiss his claim. I communicated this decision orally on August 21, 2015 and reserved my reasons for a written decision.

EXPENSES:

Award of Expenses

At the hearing, Western Assurance asked for its expenses of this arbitration. I award Western Assurance these expenses. This decision was delivered orally on August 21, 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:

1. each party’s degree of success in the outcome of the proceeding;

2. any written offers to settle made in accordance with subsection (3) of the Expense Regulation or Rule 76 of the Code;

3. whether novel issues are raised in the proceeding;

4. 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;

5. whether any aspect of the proceeding was improper, vexatious or unnecessary;

6. 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,

7. 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, second, fourth and fifth criteria support an award of expenses to Western Assurance. Specifically, Western Assurance was entirely successful in the arbitration, given Mr. Jain’s failure to participate. Next, Western Assurance provided evidence of its offer to settle these proceedings for $1,500.00 and the Applicant’s rejection of that offer in an email dated June 26, 2014. Lastly, by failing to participate in the process since at least November 2014, Mr. Jain prolonged the proceedings in the arbitration and rendered some or all of them unnecessary.

Quantum of Expenses

Western Assurance seeks expenses in the amount of $2,963.00 in legal fees (15 hours) and $385.19 in taxes. The Insurer also requested reimbursement of its assessment fee in the amount of $3,000.00.

Legal Fees

I find it fair in the circumstances to allow $500.00 for legal 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.

On the one hand, I have considered that the timeline of these proceedings has been a relatively short 14 months from the date on which the Application for Arbitration was filed in June 2014 to the date of hearing in August 2015. I have also considered the lack of participation by the Applicant at nearly all material times since November 2014 and the fact that there have only been two proceedings at FSCO, both of which were perfunctory and one of which the Insurer attended by teleconference. On the other hand, I have taken into consideration the fact that the Applicant put five issues into dispute and that the Insurer had to take steps to defend them.

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 $500.00.

September 4, 2015

Isabel Stramwasser Arbitrator

ARBITRATION ORDER

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

1. Deepanshu Jain’s claims are dismissed; and,

2. Deepanshu Jain shall pay to Western Assurance Company its expenses of this arbitration in the amount of $500.00.

September 4, 2015

Isabel Stramwasser Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.