Sinthu Vijakumar v. TD General Insurance Company, 2015 ONFSCDRS 84

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

Neutral Citation: 2015 ONFSCDRS 84

FSCO A13-008230

BETWEEN:

SINTHU VIJAKUMAR

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Sudabeh Mashkuri

Heard: March 27, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Ms. Vijakumar Sarvnaz Raissi for TD General Insurance Company

Issues:

The Applicant, Sinthu Vijakumar, was injured in a motor vehicle accident on December 21, 2010. She applied for 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 Ms. Vijakumar 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 Ms. Vijakumar entitled to receive a weekly income replacement from December 28, 2010 to December 21, 2012?
What is the amount of weekly income replacement benefit that Ms. Vijakumar is entitled to receive?
Is Ms. Vijakumar entitled to attendant care benefits in the amount of $472.20 per month from February 9, 2011 to December 21, 2012?
Is TD General liable to pay Ms. Vijakumar’s expenses in respect to the arbitration?
Is Ms. Vijakumar liable to pay TD General’s expenses in respect of the arbitration?
Is Ms. Vijakumar entitled to interest for the overdue payments of benefits?

The hearing in this case was first scheduled for March 3, 2015 at 10:00 a.m., at the offices of FSCO. Ms. Vijakumar did not appear for the hearing. Ms. Sarvnaz Raissi representing TD General was present at the March 3, 2015 hearing. Mr. Shawn Jafari brought a motion to be removed as representative of Ms. Vijakumar. I allowed Mr. Jafari to be removed as legal representative of the Applicant.

I rescheduled the hearing of the arbitration for March 27, 2015. At the commencement of the hearing on March 27, 2015, I adjourned the hearing for 20 minutes giving the Applicant an opportunity to appear. The Applicant failed to appear and the hearing in this matter proceeded in her absence. I am satisfied that the Applicant was properly served with the notice of this hearing. Further, every opportunity was given to the Applicant to advance her claim.

Hearing no evidence from Ms. Vijakumar and hearing no evidence from TD General that would support Ms. Vijakumar’s claim, I find that Applicant has failed to meet the burden of proving her claim. Therefore, her claims for benefits are dismissed.

EXPENSES:

With regard to the expenses in this hearing, TD General claims it has exercised diligence and pursued this matter without Ms. Vijakumar appearing to advance her claim. Ms. Raissi sent a bill of costs requesting $4,025.41 for legal fees and disbursements. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable. I do not believe a line by line in analysis of the bill of costs is appropriate in this case. I find that Ms. Vijakumar, having failed to appear on this matter, and not succeeding on the issues in dispute, is disentitled to her expenses. I find that Ms. Raissi attended the proceedings that were scheduled and has exercised diligence. Therefore I fix TD General’s expenses in the amount of $700.00.

April 21, 2015

Sudabeh Mashkuri Arbitrator

Date