Doreen Asante v. Certas Direct Insurance Company, 2015 ONFSCDRS 266

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 266

FSCO A14-002081

BETWEEN:

DOREEN ASANTE

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeffrey Shapiro

Heard:

By telephone conference on November 11, 2015

Appearances:

Ms. Doreen Asante did not participate

Ms. Bita-Mehrin Rajaee participated for Certas Direct Insurance Company

Issues:

The Applicant, Ms. Doreen Asante, claims she was injured in a motor vehicle accident on April 20, 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. Asante, through her 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 Ms. Asante entitled to the accident benefits detailed in her Application for Arbitration?
Is either party entitled to its expenses in respect of this proceeding?

Result:

The Applicant’s claims are dismissed.
The Applicant shall pay to the Insurer its expenses related to this proceeding, fixed in the amount of $500.00, inclusive of all fees, disbursements and any applicable taxes.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on August 17, 2015, by telephone conference. Ms. Doreen Asante failed to appear. At that Pre-Hearing discussion, the Applicant’s law firm, known as the Kanevsky Law Office, renewed its previously filed Motion to be removed from the record, as a result of the breakdown of the client-solicitor relationship. I granted that request, and thus Ms. Asante was thereafter unrepresented.

On August 17, 2015 – the date of the Pre-Hearing discussion – I issued a letter which was mailed to Ms. Asante at her last known address, and an alternate address, to advise her (1) of the missed Pre-Hearing discussion, (2) the removal of her counsel of record, and (3) to provide her with an Attendance Notice, setting a date of November 11, 2015 at 12:00 p.m. for an Arbitration Hearing, to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, the Arbitration Hearing would proceed in her absence, her Application for Arbitration may be dismissed and Certas’ expenses may be awarded against her.

For the reasons that follow, Ms. Asante’s Application for Arbitration is dismissed. At the scheduled start of the Hearing, i.e. November 11, 2015 at 12:00 p.m., I was unable to contact Ms. Asante by telephone, and she had not contacted ADR Chambers as requested, or otherwise participated in any of the Arbitration proceedings. I called Ms. Asante at the last known telephone number on file with the Commission and left a message, waited an hour, but did not hear from her.

Canada Post records indicate that my August 17, 2015 letter was in fact signed for by Doreen Asante at the last known address to which my letter was sent. The second letter, to the alternate address, was returned unclaimed. By way of background, Counsel for Certas advised that Ms. Asante did not appear at a December 2011 Examination Under Oath, and that Certas has not had any contact with the Applicant since that time. I also note that the Application for Arbitration was only signed by Ms. Asante’s then counsel. There is no evidence before me that Ms. Asante has ever participated in this proceeding. I am satisfied that Ms. Asante was given notice of all of the proceedings related to her Arbitration at her last known address.

Pursuant to Rule 37.7 of the DRPC, the Arbitration Hearing proceeded in her absence. Ms. Asante bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.

EXPENSES:

Counsel for Certas requested an order that the Applicant pay to the Insurer a reasonable amount for its expenses of this proceeding (i.e., legal expenses related to reviewing the accident benefits file and the Application for Arbitration, preparing a Reply, preparing for and attending at the Pre-Hearing conference in August 2015 and then attending at the Hearing of the matter). Ms. Rajaee, counsel for Certas, did not prepare a Bill of Costs but submitted an award of $1,000.00 for expenses would be appropriate, leaving the actual amount to my discretion. In all the circumstances of this case, I have decided to order the Applicant to pay to the Insurer its expenses, fixed in the amount of $500.00, inclusive of all fees, disbursements and any applicable taxes.

December 14, 2015

Jeffrey Shapiro

Arbitrator

Date