Natalia Pavlioutchenko v. Belair Insurance Company Inc., 2015 ONFSCDRS 37

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 37

FSCO A13-010442

BETWEEN:

NATALIA PAVLIOUTCHENKO

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: December 12, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appeared for Mrs. Pavlioutchenko Hassan Ahmad for Belair Insurance Company Inc.

Issues:

The Applicant, Natalia Pavlioutchenko, was injured in a motor vehicle accident on March 8, 2010. She applied for statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Pavlioutchenko 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 Mrs. Pavlioutchenko entitled to receive a non-earner benefit at the rate of $185.00 per week from September 15, 2010 to March 8, 2012?
Is Mrs. Pavlioutchenko entitled to receive a medical benefit set out as follows:

(a) $400.00 for services at Tangible Diagnostics Inc., treatment plan dated February 4, 2011;

(b) $1,106.60 for services at Evident Diagnostics Inc., treatment plan dated July 14, 2010; and

Is Mrs. Pavlioutchenko entitled to attendant care benefits at the rate of $540.00 per month from March 20, 2010 to March 8, 2012?
Is Mrs. Pavlioutchenko entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from March 3, 2010 to March 8, 2012?
Is Belair liable to pay a special award because it unreasonably withheld or delayed payments to Mrs. Pavlioutchenko?
Is Belair liable to pay Mrs. Pavlioutchenko’s expenses in respect of the arbitration?
Is Mrs. Pavlioutchenko liable to pay Belair’s expenses in respect of the arbitration?
Is Mrs. Pavlioutchenko entitled to interest for the overdue payment of benefits?

Result:

Mrs. Pavlioutchenko’s claims are dismissed.
Mrs. Pavlioutchenko shall pay Belair’s expenses of the arbitration fixed in the amount of $1,500.00, inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Mrs. Pavlioutchenko did not attend the pre-hearing on October 28, 2014 and her counsel was removed from representing her. Mrs. Pavlioutchenko did not attend the arbitration hearing at 10:00 a.m. on Friday December 12, 2014. No one appeared on her behalf. Belair requested that the arbitration proceed in the absence of Mrs. Pavlioutchenko. I adjourned the hearing until 10:15 a.m. to allow time for Mrs. Pavlioutchenko to attend. At that time, I resumed the hearing in Mrs. Pavlioutchenko's absence.

Rule 37.7 of the Dispute Resolution Practice Code — Fourth Edition provides as follows:

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 Mrs. Pavlioutchenko received Notice of the Hearing because it was sent to her by FSCO at her last known address and no correspondence sent to her by FSCO was returned to FSCO.

The burden of proof in this arbitration proceeding lies with Mrs. Pavlioutchenko. In order to establish her entitlement to benefits, she must provide evidence supporting her claims. She presented no evidence and has failed to meet the burden of proof. Consequently, her claims for statutory accident benefits, interest and expenses are dismissed.

EXPENSES:

Belair’s counsel advised that approximately 32 hours were spent by his office on this matter. Mr. Ahmad was called to the Ontario Bar in 2013. Belair sought an order that Mrs. Pavlioutchenko was liable to pay $2,500.00 inclusive of fees, disbursements and HST.

I have considered the criteria in the expense regulation, which are contained in Rule 75.2 of the Code. The relevant criteria are:

Each party's degree of success in the outcome of the proceeding.
Any written offers to settle that were made in accordance with the rules of practice and procedure applicable to the proceeding after the conclusion of mediation and before the conclusion of the hearing.
Whether novel issues are raised in the proceeding.
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.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.

I find that Mrs. Pavlioutchenko was unsuccessful in all of her claims. I was not advised of any written offers to settle. There were no novel issues raised in the proceeding. An important consideration is that Mrs. Pavlioutchenko’s conduct prolonged the proceeding. I was presented with no evidence that any aspect of this proceeding was improper or vexatious. It appears that some aspects of the proceeding were unnecessary due to Mrs. Pavlioutchenko’s conduct. I find that Belair is entitled to its reasonable expenses in this arbitration based on its success.

Thirty two hours seems somewhat excessive given the early stage of the proceeding. Nevertheless, the Insurer should be compensated at an appropriate rate for the services of its legal representatives in reviewing the file, preparing a Response and preparing for and attending at two pre-hearing conferences. I fix expenses at $1,500.00, inclusive of disbursements and HST, payable by Mrs. Pavlioutchenko to Belair.

March 2, 2015

Maggy Murray

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario