Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 265 FSCO A13-012874
BETWEEN:
SAMUEL MWAURA MUIGAI Applicant
and
UNIFUND ASSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Arbitrator Paulina Gueller
Heard: By telephone conference call on October 23, 2015
Appearances: Mr. Samuel Mwaura Muigai did not participate Mr. Calogero Rumeo participated for Unifund Assurance Company
Issues:
The Applicant, Mr. Samuel Mwaura Muigai, was injured in a motor vehicle accident on March 21, 2012. He applied for and received accident benefits from Unifund Assurance Company ("Unifund"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Muigai, through his 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 Hearing are:
Is Mr. Muigai entitled to receive the following Medical Benefits from the service provider Progressive Rehab, as follows:
a) $3,087.50 for physiotherapy, dated May 2, 2012;
b) $2,115.00 for Physiotherapy, dated May 9, 2012.
Is Mr. Muigai entitled to the following Costs of Examinations:
a) $1,971.64 for Total Body Assessment, service provider Progressive Rehab, dated September 19, 2012;
b) $2,200.00 for Orthopedic Assessment, service provider Jane Yonge Medical, dated April 19, 2012;
c) $595.03 for Attendant Care Assessment, service provider Jane Yonge Medical, dated April 19, 2012.
Is Mr. Muigai entitled to interest for the overdue payment of benefits?
Is Unifund liable to pay the expenses of the Applicant in respect of the Arbitration under section 282(11) of the Insurance Act?
Is Mr. Muigai liable to pay the Insurer's expenses in respect of the Arbitration under section 282(11) of the Insurance Act?
Result:
Mr. Muigai's claims in this Application for Arbitration for Medical Benefits, Costs of Examinations and Interest are dismissed.
Mr. Muigai shall pay the Insurer its expenses of this proceeding, fixed in the sum of $500.00, inclusive of all fees, disbursements and HST.
EVIDENCE AND ANALYSIS:
A Pre-Hearing was held on August 11, 2015 at the offices of the ADR Chambers. Mr. Muigai did not attend. Lofranco Corriero Personal Injury Lawyers, Mr. Muigai's counsel, raised a Motion to be removed of the record as Mr. Muigai's representative because of a breakdown in the solicitor-client relationship. The Insurer did not oppose and I permitted the removal of Lofranco Corriero's Personal Injury Lawyers as counsel of record for Mr. Muigai.
By letter, dated August 11, 2015, I advised Mr. Muigai that I had scheduled a Hearing for October 23, 2015 by telephone conference to hear the issues identified in the Application for Arbitration. The letter also advised him that should he not participate in any further proceedings, I may dismiss his application and Unifund's expenses of the Arbitration process may be awarded against him.
On October 23, 2015, I called Mr. Muigai at the telephone number in our records; however, there was a message stating that the number was not in service. Therefore, the Hearing proceeded in the absence of Mr. Muigai.
Mr. Rumeo brought a Motion to dismiss the Application for Arbitration based on the fact that there was no evidence supporting the claim. He also requested the costs of the proceeding in the amount of $1,500.00.
Rule 37.9 of the Dispute Resolution Practice Code ("the DRPC") states:
Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party's absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.
I am satisfied that the notices sent to Mr. Muigai complied with Rule 9.1(c) of the DRPC and with Section 6 of the Statutory Powers Procedure Act. All correspondence, including the notices of the proceedings, was sent to Mr. Muigai's address as noted in our records.
Pursuant to Rule 37.9 of the DRPC, the Hearing proceeded in Mr. Muigai's absence. Mr. Muigai is responsible to establish his entitlement to his claims. Notwithstanding the notices and letters, Mr. Muigai did not attend the Pre-Hearing or the Hearing. No witnesses were called and no documents were filed on his behalf. Therefore, there was no evidence to support Mr. Muigai's claims and I conclude that he has no interest in pursuing his Application for Arbitration because he has abandoned it.
All the above mentioned reasons suffice to dismiss Mr. Muigai's claims.
EXPENSES:
Mr. Rumeo requested the expenses of the Hearing in the amount of $1,500.00. However, Unifund did not provide me a Bill of Costs.
The relevant criteria for the Arbitrator when awarding expenses to a party, if the adjudicator is satisfied that the award of expenses is justified, is set out in Rule 75.1 and 75.2 of the DRPC as follows:
The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:
(a) each party's degree of success in the outcome of the proceeding;
(d) 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;
(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.
In awarding expenses, I am taking into consideration the relevant criteria, which include the party's success in the proceedings and the conduct of the party that prolonged the proceeding unnecessarily. Mr. Muigai failed to pursue his claim, instruct his counsel and attend the proceedings.
Unifund is the successful party and is entitled to its expenses. I consider the time that Unifund's counsel spent preparing responses to the Application for Arbitration, consulting with their client, preparing and attending one Pre-Hearing and the Hearing.
I find that Unifund was aware that Mr. Muigai had lost contact with his counsel and that he was not pursuing his Application for Arbitration. Therefore, I find it is reasonable to grant some of its legal expenses. Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Insurance Act, and order that Mr. Muigai pay Unifund's expenses that I have assessed at $500.00 inclusive of all fees, disbursements and HST.
This amount is payable forthwith.
December 7, 2015
Paulina Gueller Arbitrator
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:
Mr. Muigai's claims in this Application for Arbitration for Medical Benefits, Costs of Examinations and Interest are dismissed.
Mr. Muigai shall pay the Insurer its expenses of this proceeding, fixed in the sum of $500.00, inclusive of all fees, disbursements and HST.
December 7, 2015
Paulina Gueller Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.