Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 243
FSCO A15-001508 & A15-001515
BETWEEN:
TOLANI ADELEKE-RUFAI and MUHAMMED BAMGBADE
Applicants
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before:
Arbitrator Marshall Schnapp
Heard:
By written submissions due September 24, 2015
Appearances:
Mr. Marc Golding for Ms. Tolani Adeleke-Rufai and Mr. Muhammed Bamgbade
Mr. John P. Desjardins for Certas Direct Insurance Company
Issues:
Both Applicants claimed they were injured in a motor vehicle accident on February 4, 2011 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Adeleke-Rufai and Mr. Bamgbade, through their representative, 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 Motion are:
Should Ms. Adeleke-Rufai and Mr. Bamgbade’s Applications for Arbitration be dismissed?
Should Ms. Adeleke-Rufai and Mr. Bamgbade pay expenses to Certas?
Result:
Ms. Adeleke-Rufai and Mr. Bamgbade’s Applications for Arbitration are dismissed.
Ms. Adeleke-Rufai and Mr. Bamgbade will each pay $4,181.34 (inclusive of fees, disbursements and any applicable taxes) in expenses.
EVIDENCE AND ANALYSIS:
Background
A Pre-Hearing took place in both these matters on July 9, 2015. Both Applicants did not attend the Pre-Hearing. The following individuals did attend: Mr. Golding, Licensed Paralegal, representing the Applicants; Mr. Desjardins, Legal Counsel, representing the Insurer; and Mr. Ramirez attended on behalf of Certas. All parties waited approximately forty minutes but the Applicants did not attend.
At the Pre-Hearing, Mr. Golding, Licensed Paralegal, advised me that both Applicants were aware of the Pre-Hearing and the requirement that they attend but they advised Mr. Golding they would not be attending. No explanation was provided to me for their non-attendance.
Both counsel advised me that prior to the Pre-Hearing, the Applicants had requested to withdraw their Applications for Arbitration. However, the Insurer and the Applicants were not able to come to an agreement on the issue of expenses.
Given the circumstances, I advised the parties that based on Rules 1 and 33 of the Dispute Resolution Practice Code (“the Code”) and Section 23 of the Statutory Powers and Procedure Act, I would grant Certas’ request for a Motion to dismiss both Applications for Arbitration with expenses.
The parties agreed to a timetable for written submissions. Certas was given until August 10, 2015 to file its submissions; the Applicants had until September 10, 2015 to file their responses; and Certas then had until September 24, 2015 to file a reply, if required.
Only Certas filed written submissions. No response was received by the Applicants in accordance with the agreed upon timetable for submissions.
Certas’ Position
According to Mr. Desjardins’ affidavit, sworn on July 27, 2015, Certas is taking the position after investigating the claims that the collision the Applicants were involved in arose out of the intentional and wilful acts of the Applicants. Thus the Applicants were not involved in an accident as identified in Section 3(1) of the Schedule. And thus Certas denied the benefits in accordance with Section 53 of the Schedule.
Mr. Desjardins’ evidence at paragraph 10 of his affidavit is his office and Mr. Golding’s office agreed to the July 9, 2015 at 11:30 a.m. date and time for the Pre-Hearing discussion to take place.
According to Mr. Desjardins’ affidavit, Certas is bringing this Motion to have the Applications for Arbitration dismissed based on both Applicants failure to attend the Pre-Hearing discussion on July 9, 2015. Certas believes that their failure to attend without any explanation shows both Applicants have no interest in pursuing their claims.
The Applicants’ Position
Despite Mr. Golding agreeing to a timetable for submissions, no submissions were filed in response to Certas’ Motion to have the Applications for Arbitration dismissed and for expenses to be awarded.
Findings
I am satisfied that the Applicants had been notified of all proceedings to date and were aware that they were to participate in the Pre-Hearing discussion on July 9, 2015.
I am also satisfied that given their legal representative participated in the Pre-Hearing discussion on July 9, 2015 and received a copy of my Pre-Hearing letter, dated July 23, 2015, that the Applicants were aware that the Insurer was bringing a Motion in writing to dismiss their Applications for Arbitration with costs.
The Applicants filed no materials in response to those filed by Certas, requesting the Applications be dismissed.
The Applicants have the onus of proof to establish their entitlement to accident benefits under their Applications for Arbitration and their failure to attend and participate accordingly means that they have failed to meet this onus.
I find that given both Applicants failure to participate in this process and the resulting impossibility of success of their Applications for Arbitration, Certas is entitled to an order dismissing the accident benefit claims filed by both Applicants.
I am relying on Rule 68 of the Code which allows for the dismissal of a proceeding without Hearing and Section 23 of the Statutory Powers Procedure Act,2 which grants adjudicators, including Arbitrators, a wide power, including dismissal, to control the process and prevent an abuse of that process.
Therefore, I find all of the above reasons are sufficient to dismiss the Applications for Arbitration.
EXPENSES:
Certas’ Submissions
Certas provided cost submissions and they are requesting the Applicants pay costs in the amount of $4,574.47 ($2,287.35 each) for legal costs. According to Certas’ Bill of Costs, their legal counsel spent 35.7 hours for both matters. This amount was arrived out using the hourly rates prescribed by the Schedule.
$12,167.87 ($6,083.84 each) is being claimed in disbursements. With respect to disbursements, it is noted Certas is claiming $6,000.00 for Arbitration filing fees and $13,379.07 for two expert reports.
The Applicants’ Submissions
The Applicants made no submissions with respect to expenses
Findings
It is not disputed that the Insurer was completely successful and is entitled to an order for its reasonable expenses as against the Applicants.
My jurisdiction to decide the issue is set out in subsection 282(11) of the Insurance Act which states:
The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code.
Rule 75.2 of the Code, which sets out the criteria to be considered in awarding expenses, states
the adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code.
The relevant criteria for the award of expenses in this case are: (1) Each party’s degree of success in the outcome of the proceeding, and (2) Whether any aspect of the proceeding was improper, vexatious or unnecessary. Certas was entirely successful in the outcome of this proceeding which involves two claims for accident benefits. Given the nature of the claims put forth by the Applicants and what appears to be their abandonment of those claims, I believe it is reasonable for the Insurer to be awarded the $4,574.47 ($2,287.35 each) it is seeking for legal costs in this matter.
Turning to the disbursements claimed, I am not allowing the Arbitration filing fee of $3,000.00 being claimed for both Applicants. Section 7 of the Expense Regulation only permits the claiming of this fee in specific situations. I have no evidence that such situations are applicable here.
Certas is also claiming $13,379.07 for two expert reports but under the Regulation, the maximum I may award is $3,000.00 for two expert reports. Thus I find Certas will be awarded $3787.98 ($1,893.99 each) for disbursements in this matter.
November 16, 2015
Marshall Schnapp
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 243
FSCO A15-001508 & A15-001515
BETWEEN:
TOLANI ADELEKE-RUFAI and MUHAMMED BAMGBADE
Applicants
and
CERTAS DIRECT 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:
Ms. Adeleke-Rufai and Mr. Bamgbade’s Applications for Arbitration are dismissed.
Tolani Adeleke-Rufai shall pay Certas its expenses in respect of this Arbitration proceeding, fixed in the amount of $4181.34 (inclusive of fees, disbursements and any applicable taxes).
Muhammed Bamgbade shall pay Certas its expenses in respect of this Arbitration proceeding, fixed in the amount of $4181.34 (inclusive of fees, disbursements and any applicable taxes).
November 16, 2015
Marshall Schnapp
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- R.S.O. 1990, c. S. 22.