Igor Volkov v. Belair Insurance Company Inc., 2015 ONFSCDRS 38

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

Neutral Citation: 2015 ONFSCDRS 38

FSCO A13-009677

BETWEEN:

IGOR VOLKOV

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 Mr. Volkov Hassan Ahmad for Belair Insurance Company Inc.

Issues:

The Applicant, Igor Volkov, was injured in a motor vehicle accident on March 8, 2010. He 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 Mr. Volkov 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. Volkov entitled to receive a non-earner benefit at the rate of $185.00 per week from September 1, 2010 to March 8, 2012?
Is Mr. Volkov entitled to receive a medical benefit for $2,796.33 for services at Ancaster Recovery Centre, treatment plan dated April 5, 2011?
Is Mr. Volkov entitled to attendant care benefits at the rate of $983.22 per month from May 6, 2010 to March 8, 2012?
Is Mr. Volkov entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from March 8, 2010 to March 8, 2012?
Is Mr. Volkov entitled to payments for the cost of examinations in the amount of $1220.14 for services at United Ontario Medical Assessment, OCF-22 dated May 8, 2010?
Is Belair liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Volkov?
Is Belair liable to pay Mr. Volkov’s expenses in respect of the arbitration?
Is Mr. Volkov liable to pay Belair’s expenses in respect of the arbitration?
Is Mr. Volkov entitled to interest for the overdue payment of benefits?

Result:

Mr. Volkov’s claims are dismissed.
Mr. Volkov 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:

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

Notice of the hearing was sent to the Applicant by FSCO at his last known address.

The burden of proof in this arbitration proceeding lies with Mr. Volkov. In order to establish his entitlement to benefits, he must provide evidence supporting his claims. He presented no evidence and has failed to meet the burden of proof. Consequently, his 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 Mr. Volkov 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 Mr. Volkov was unsuccessful in all of his 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 Mr. Volkov'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 Mr. Volkov'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 Mr. Volkov to Belair.

March 2, 2015

Maggy Murray Arbitrator

Date