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

Neutral Citation: 2015 ONFSCDRS 62

FSCO A09-002988

BETWEEN:

HUI WANG Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

Before: Arbitrator Jeffrey Rogers

Heard: By written submissions completed on March 3, 2015.

Appearances: Ms. Wendy Sokoloff, solicitor for Mr. Wang Mr. Thomas Hudak, solicitor for TD General Insurance Company

Issues:

The issues in this motion are:

Should this arbitration be dismissed because Mr. Wang is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997¹ (WSIA) as a result of the accident?
Is TD General Insurance Company entitled to its expenses of this arbitration, and if so, in what amount?

Result:

This arbitration is dismissed.
Mr. Wang shall pay TD General its expenses of this arbitration in the amount of $3,443.71

EVIDENCE AND ANALYSIS:

Background

The Applicant, Hui Wang, was injured in a motor vehicle accident on February 15, 2008. He applied for and received statutory accident benefits from the Insurer, TD General Insurance Company (“TD General”), payable under the Schedule.² Disputes arose regarding his entitlement to further claimed benefits. The parties were unable to resolve their disputes through mediation, and Mr. Wang applied for arbitration at the Financial Services Commission of Ontario ("The Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

TD General took the position that section 59 of the Schedule precluded Mr. Wang from entitlement to further accident benefits because he was entitled to receive benefits under the WSIA as a result of the accident. Pursuant to section 31 of the WSIA, TD General made an application to the Workplace Safety Insurance Appeals Tribunal (WSIAT) for a determination of Mr. Wang’s entitlement to workers’ compensation benefits. In a decision dated September 13, 2011, the WSIAT ruled that Mr. Wang was entitled to workers’ compensation benefits.

Upon receipt of the WSIAT decision, TD General brought this motion seeking dismissal of the arbitration. The pre-hearing Arbitrator determined that the motion would be decided by written submissions. TD General made submissions. Mr. Wang’s representative informed the Commission that she no longer represents Mr. Wang but she has not sought an order for removal from the record. She was informed that the decision would be made without submissions from Mr. Wang. She made no submissions.

Analysis

Section 59(1) of the Schedule provides that an insurer is not required to pay accident benefits in respect of an insured person who, as a result of the accident, is entitled to receive benefits under any workers’ compensation law or plan.

At the time of the accident, Mr. Wang was one of two co-drivers of a tractor-trailer. In its decision, the WSIAT reviewed the circumstances of the accident and concluded that Mr. Wang was entitled to claim workers’ compensation benefits. Mr. Wang did not argue before the WSIAT that he falls within the exception to section 59(1), and there is no evidence that he does.

I find that section 59(1) of the Schedule precludes Mr. Wang from entitlement to accident benefits. This application for arbitration must therefore be dismissed.

EXPENSES:

I find that TD General is entitled to its expenses of this arbitration, based on its complete success and the fact that this arbitration likely should not have been commenced.

TD General sought $9,746.62 for legal fees and $4,205.73 for disbursements. The fees include work on the application to the WSIAT. I find no jurisdiction to make an award in that regard. In the absence of a clear record of the time spent on this application, I fix the amount recoverable for fees at $3,000.

The claim for disbursements includes the $3,000 levy that the Commission imposes upon the filing of the application. I find no jurisdiction to order Mr. Wang to reimburse TD General for that levy. As with fees, there is no indication of which of the remaining claimed disbursements were incurred with regard to this application. I fix disbursements at $443.71. That amount covers the disbursements that appear to be for medical records, plus $200 for photocopies and service of documents. Mr. Wang is therefore ordered to pay expenses in the amount of $3,443.71.

March 24, 2015

Jeffrey Rogers Arbitrator

Date