Eric Tsekpo v. Aviva Canada Inc., 2015 ONFSCDRS 69

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 69

FSCO A12-003448

BETWEEN:

ERIC TSEKPO

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Maggy Murray

Heard: January 13, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Tsekpo did not appear Loreto Scarola for Mr. Tsekpo Robert Smith for Aviva Canada Inc.

Issues:

The Applicant, Eric Tsekpo, was allegedly injured in an alleged motor vehicle accident on March 26, 2010. He applied for statutory accident benefits from Aviva Insurance Company (“Aviva”), payable under the Schedule.¹ Aviva denied payment of various benefits. The parties were unable to resolve their disputes through mediation, and Mr. Tsekpo applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Was Mr. Tsekpo involved in an “accident’ as defined by section 2(1) of the Schedule?
Is Aviva entitled to a repayment of statutory accident benefits in the amount of $9,842.83?
Which party is entitled to expenses in respect of the arbitration?

Result:

Mr. Tsekpo’s claim is dismissed.
Aviva withdrew its claim for a repayment of benefits.
Mr. Tsekpo shall pay Aviva's expenses of the arbitration fixed in the amount of $1,000.00, inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Mr. Tsekpo did not attend the arbitration hearing scheduled to commence at 10:00 a.m. on Thursday, January 15, 2014. Aviva requested that the arbitration proceed in the absence of Mr. Tsekpo and his representative did not object to the matter proceeding. I adjourned the hearing until 10:30 a.m. to allow time for Mr. Tsekpo to attend. At that time, I resumed the hearing in Mr. Tsekpo's absence.

Section 7(1) of the Statutory Powers Procedure Act R.S.O. 1990, c.S22 states:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

Rule 37.7 of the Dispute Resolution Practice Code – Fourth Edition (the "Code") 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 Mr. Tsekpo received Notice of the hearing because it was sent to him by FSCO to his last known address and no correspondence sent to him by FSCO was returned to FSCO.

The burden of proof in this arbitration proceeding lies with Mr. Tsekpo. In order to establish his entitlement to benefits, he must provide evidence supporting his claim. He presented no evidence and has failed to meet the burden of proof. Consequently, his claim for statutory accident benefits is dismissed.

EXPENSES:

Aviva sought an order that Mr. Tsekpo was liable to pay $1,000 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 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. Tsekpo was unsuccessful. 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. Tsekpo's conduct prolonged the proceeding. For example, he did not appear at a pre-hearing that was scheduled for June 25, 2014. It appears that some aspects of the proceeding were unnecessary due to Mr. Tsekpo's conduct. I find that Aviva is entitled to its reasonable expenses in this arbitration based on its success.

Aviva requested $1,000 inclusive of fees, disbursements and HST for this file. This is a reasonable amount. I fix expenses at $1,000.00, inclusive of fees, disbursements and HST, payable by Mr. Tsekpo to Aviva.

April 2, 2015

Maggy Murray

Arbitrator

Date