REASONS FOR DECISION

Before: Anne Sone Heard: April 13, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Appearances: No one appearing on behalf of Devon Fraser Claudia Batista for TD General Insurance Company

Issues:

The Applicant, Devon Fraser, was injured in a motor vehicle accident on April 5, 2009. He applied for and received statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Fraser 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. Fraser barred from arbitrating the issues below because he failed to commence his arbitration within two years of having been denied benefits?
Is Mr. Fraser entitled to receive weekly caregiver benefits in the amount of $250 per week from April 6, 2009 to April 4, 2011?
Is Fraser entitled to payments for housekeeping and home maintenance services in the amount of $100 per week from October 17, 2009 to April 4, 2011?
Is TD General liable to pay Mr. Fraser’s expenses in respect of the arbitration?
Is Mr. Fraser liable to pay TD General’s expenses in respect of the arbitration?
Is Mr. Fraser entitled to interest for the overdue payment of benefits?

Result:

Mr. Fraser’s Application for Arbitration is dismissed.

CHRONOLOGY:

On March 30, 2012, the Commission registered Mr. Fraser’s Application for Arbitration.
On July 2, 2014, Mr. Fraser attended at a pre-hearing discussion held at the Commission. He was accompanied by Ms. Monique Fenton of Harry and Associates Inc. Shortly after the conclusion of the that pre-hearing, the pre-hearing arbitrator, Arbitrator Mutch was informed that Ms. Fenton’s status with the Law Society of Upper Canada showed her to be “not providing legal services”. Pending further investigation, Arbitrator Mutch did not issue a pre-hearing letter at that time.
In a letter dated October 29, 2014, Arbitrator Mutch directed Mr. Fraser’s attention to Rule 68 of the Dispute Resolution Practice Code, which permits an adjudicator to dismiss a proceeding without a hearing.
On December 19, 2014, at a subsequent pre-hearing², Mr. Fraser did not appear, but was available by telephone. His former representative, Ms. Sue Harry, appeared. Ms. Harry was at that time under administrative suspension by the Law Society of Upper Canada, and therefore could not represent Mr. Fraser.
Arbitrator Mutch advised Mr. Fraser of the dates for both his preliminary issue hearing, and hearing, in his pre-hearing letter dated December 19, 2014.
In his pre-hearing letter dated December 19, 2014, Arbitrator Mutch also “strongly urged [Mr. Fraser] to obtain legal representation as the preliminary issue is one of a largely legal nature.” Mr. Fraser did not do so.

EVIDENCE AND ANALYSIS:

On April 13, 2015, at 10:00 a.m., I began the hearing of the preliminary issue, set out as issue 1 above. As Mr. Fraser was not present, I waited thirty minutes. Mr. Fraser did not appear, and I proceeded with the hearing.

I am satisfied that Mr. Fraser was given notice of all proceedings in the dispute resolution process as required by the Dispute Resolution Practice Code. TD General alleges that Mr. Fraser failed to commence his arbitration within two years of having been denied benefits pursuant to paragraph 281.1(1) of the Insurance Act. Mr. Fraser bears the burden of proving entitlement to the accident benefits that he claimed. As he presented no evidence to show that he commenced his arbitration within two years the insurer’s refusal to pay the benefit claimed, I find that he did not do so. Accordingly, I find that he is barred from arbitrating his remaining issues in dispute, and that his Application for Arbitration is dismissed.

April 20, 2015

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 81 FSCO A13-011910

BETWEEN:

DEVON FRASER Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Devon Fraser’s Application for Arbitration is dismissed.