Neutral Citation: 2015 ONFSCDRS 257 FSCO A13-011871

BETWEEN:

CHRISTOPHER WILLIAMS Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Anne Morris

Heard: In person at ADR Chambers on October 5, 2015

Appearances: Mr. Christopher Williams did not participate Mr. Ivor Abraham and Mr. Oli Akinsanmi participated for Mr. Christopher Williams Ms. Rupinder Tatla participated for Certas Direct Insurance Company

Issues:

The Applicant, Mr. Christopher Williams, was injured in a motor vehicle accident on July 17, 2012. He applied for and received statutory accident benefits payable under the Schedule.¹ Disputes arose as to whether or not certain benefits were payable. The parties were unable to resolve their disputes through mediation, and Mr. Williams 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:

Should the law firm of Benjamin Law be permitted to withdraw as representatives for Mr. Williams?
Is Mr. Williams entitled to receive a weekly Income Replacement Benefit?
What is the amount of weekly Income Replacement Benefits that Mr. Williams is entitled to receive?
Is Mr. Williams entitled to a Medical Benefit in the amount of $1,997.64 for a psychological assessment?
Is Certas liable to pay a Special Award because it unreasonably withheld or delayed payments to Mr. Williams?
Is Mr. Williams entitled to interest for the overdue payment of benefits?
Is Certas liable to pay Mr. Williams’ expenses in respect of the Arbitration?
Is Mr. Williams liable to pay Certas’ expenses in respect of the Arbitration?

Result:

The law firm of Benjamin Law is permitted to withdraw as representatives for Mr. Williams.
Mr. Williams’ claims against Certas in this Arbitration are dismissed.
Mr. Williams is ordered to pay Certas’ expenses in the amount of $1,750.00 (inclusive of all costs, disbursements and taxes).

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion on this matter took place on September 24, 2014. Mr. Williams did not attend or participate as appears from the Pre-Hearing letter, dated September 28, 2014. The within Hearing was scheduled to commence on October 5, 2015.

The Pre-Hearing was resumed on February 4, 2015. Mr. Williams did not attend or participate as appears from the Pre-Hearing letter of that date.

The Pre-Hearing was further resumed on September 21, 2015. The Insurer brought a Motion at that time to address the Applicant’s failure to comply with production requests. Mr. Ivor Abraham brought a Motion requesting permission for the law firm of Benjamin Law to withdraw as representatives for Mr. Williams. The Pre-Hearing Arbitrator declined to hear either Motion at that time for the reason given in the Pre-Hearing letter that service of the Motion materials was not adequate. He directed that the Motions be made to the Hearing Arbitrator.

Mr. Williams did not attend or participate in the resumption of the Pre-Hearing on September 21, 2015, as appears from the Pre-Hearing letter of that date.

Mr. Williams did not attend the Hearing on October 5, 2015. I attempted to telephone him at the telephone number contained in the Commission Records (including those of ADR Chambers) and at the last known telephone numbers provided by his lawyer, but was unable to reach him. I waited 30 minutes after the time the Hearing was scheduled to commence before hearing from Mr. Williams’ representatives and from the Insurer.

Mr. Abraham re-introduced his Motion for removal of Benjamin Law as representatives of record for Mr. Williams. I am satisfied upon review of the materials filed and upon hearing from Mr. Abraham and Mr. Akinsanmi that there has been a breakdown in the solicitor-client relationship and that the requirements of Rule 9.7 of the Dispute Resolution Practice Code (“the Code”) have been met. The law firm of Benjamin Law is removed as solicitors of record for Mr. Williams.

The Hearing then proceeded in Mr. Williams’ absence pursuant to Rule 37.7 of the Code.

I am satisfied that Mr. Williams was given notice of the Hearing at his last known address contained in the records of the Dispute Resolution Group (including ADR Chambers) as required by Rule 5.7 of the Code.

Mr. Williams bears the onus of proving entitlement to the benefits claimed by him. Because he did not appear at the Hearing and no evidence was presented to support his claims, his claims against Certas are dismissed.

EXPENSES:

I find that Certas, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses.

Certas provided a Bill of Costs in the total amount of $5,011.34, for fees and HST.

I do not believe that this matter warrants a line by line examination of the Insurer’s expenses. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable. In regard to “reasonable”, I note the following.

In Reid and ING Insurance Company of Canada,² Arbitrator Killoran held with respect to arbitration legal expenses that:

The relationship between insurer and insured is a contractual one. The insured is entitled to access the dispute resolution process at FSCO as a result of that contract. The Insurance Act and its regulations must be interpreted in such a way as to uphold the protective and remedial nature of the legislation of which it flows.

In Halim and Security National Insurance Co./Monnex Insurance Mgmt. Inc., Director’s Delegate, Lawrence Blackman held:³

I find that these expense criteria do not exist in a vacuum, segregated from the overall legislative intent. Rather, the criteria are defined by and help define the broader, overarching legislative intentions, including consumer protection, as set out by the Supreme Court of Canada in Smith v. Co-Operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, which encompasses a fair and reasonable measure of access to justice.

I also note, however, in this circumstance, that Mr. Williams’ failure to participate in any part of the Pre-Hearing process has caused delay and unnecessary expense to the Insurer.

I therefore fix the Insurer’s reasonable expenses at $1,750.00, including disbursements and all applicable taxes. I find this amount to be reasonable given the time required to review the file, obtain instructions, prepare and file a response, prepare for and attend the Pre-Hearing discussions and prepare for and attend the Hearing.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.1.8, as amended, Mr. Williams is ordered to pay Certas’ expenses in the amount of $1,750.00 (inclusive of all costs, disbursements and taxes).

November 30, 2015

Anne Morris Arbitrator

Financial Services Commission of Ontario