O'Shane Samuels v. TD Home and Auto Insurance Company, 2015 ONFSCDRS 221

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 221

FSCO A14-007934

BETWEEN:

O'SHANE SAMUELS

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: James Robinson

Heard: October 5, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Samuels

Emily Schatzker for TD Home and Auto Insurance Company

Issues:

The Applicant, O'Shane Samuels, was injured in a motor vehicle accident on October 2, 2011. He applied for and received statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.¹ Disputes arose between the parties with respect to the payment of benefits. The parties were unable to resolve their disputes through mediation, and Mr. Samuels 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 are:

Is Mr. Samuels entitled to receive a non-earner benefit from April 2, 2012 until October 2, 2013 in the amount of $185.00 per week?
Is Mr. Samuels entitled to receive a medical benefit of $130 incurred on October 1, 2013?
Do Mr. Samuels’s injuries fall under the Minor Injury Guidelines?
Is TD Home liable to pay Mr. Samuels’s expenses in respect of the arbitration?
Is Mr. Samuels liable to pay TD Home’s expenses in respect of the arbitration?
Is Mr. Samuels entitled to interest for the overdue payment of benefits?

Result:

The applicant’s claims are dismissed in their entirety.
The applicant shall pay to the respondent its expenses of the arbitration fixed in the amount of $1,000.00.

EVIDENCE AND ANALYSIS:

The applicant was born on August 20, 1996 and was accordingly a minor on the date of the accident. He had attained his majority by February 11, 2014, the date of issuance of the Application for Arbitration herein. He subsequently attended the pre-hearing in this matter together with his former legal counsel. I am satisfied that these proceedings were authorized by him and that on the basis of the available evidence he had the legal capacity to do so.

The applicant failed to make the documentary production required pursuant to the disclosure order made at the pre-hearing.

On September 18, 2015 the applicant’s former representative obtained an order removing himself from the record. The applicant failed to attend upon the return of that motion nor did any other person attend on his behalf.

The hearing of this matter was scheduled to commence at 10:00 a.m. on October 5, 2015 at the offices of the Financial Services Commission of Ontario in Toronto.

The applicant failed to attend nor did any other person attend upon his behalf. Notice of the hearing was properly served. The respondent and its counsel were in attendance and prepared to proceed. I waited 30 minutes and then proceeded to hear this matter.

The applicant having failed to attend or to adduce evidence in this matter, I was satisfied on the basis of the available evidence and upon the totality of the circumstances that the applicant has abandoned his application. I accordingly dismissed the applicant’s claims in their entirety.

EXPENSES:

Section 12 of Ontario Regulation 664, R.R.O. 1990 (the “Expense Regulation”), prescribes the criteria which I must consider in the exercise of my discretion with respect to any award of expenses in the present application. I agree with the submission of respondent’s counsel that the only such criterion relevant in the present proceeding is the “degree of success in the outcome of the proceeding.” I find that the respondent is entitled to its reasonable expenses of this application.

The respondent has been placed to considerable inconvenience and needless expense by the failure of the applicant to participate in a meaningful way in a process which he himself invoked. I find that this is an appropriate case in which to exercise my discretion to fix expenses in order to alleviate further costs and delay. With the agreement of the respondent and its counsel I

accordingly assess expenses fixed in the amount of $1,000.00 against the applicant, inclusive of all fees, disbursements and taxes.

October 26, 2015

James Robinson Date

Arbitrator