Sukania Ebrahim v. RBC General Insurance Company, 2015 ONFSCDRS 99

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 99

FSCO A13-013013

BETWEEN:

SUKANIA EBRAHIM

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: October 16, 2014 and February 12, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms. Ebrahim did not appear

Sharan Dhami for RBC General Insurance Company

Issues:

The Applicant, Sukania Ebrahim, claims to have been injured in a motor vehicle accident on January 25, 2011. She applied for statutory accident benefits from RBC General Insurance Company (“RBC”), under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Ebrahim 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 issues in this hearing are:

Is Ms. Ebrahim entitled to receive a weekly income replacement?
Is Ms. Ebrahim entitled to receive a rehabilitation benefit?
Is Ms. Ebrahim entitled to payments for the cost of examinations?
Is RBC liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Ebrahim?
Is RBC liable to pay Ms. Ebrahim’s expenses in respect of the arbitration?
Is Ms. Ebrahim liable to pay RBC’s expenses in respect of the arbitration?
Is Ms. Ebrahim entitled to interest for the overdue payment of benefits?

Result:

The Applicant’s claims are dismissed.
The Applicant shall pay to the insurer its expenses of the arbitration fixed in the amount of $2,000.00 (inclusive of fees, disbursements and HST).

EVIDENCE AND ANALYSIS:

Ms. Ebrahim did not attend the arbitration hearing at 10:00 a.m. on Thursday, October 16, 2014. No one appeared on her behalf. RBC requested that the arbitration proceed in the absence of Ms. Ebrahim. I adjourned the hearing until 10:20 a.m. to allow time for Ms. Ebrahim to attend. At that time, I resumed the hearing in Ms. Ebrahim's absence. The insurer requested that the proceeding be dismissed with the insurer's expenses of the arbitration payable by Ms. Ebrahim.

Prior to a final decision in this matter, Ms. Ebrahim contacted FSCO by e-mail.² She confirmed that her home address is the same as the one FSCO has on file and said that she did “not know what (her) options are at this point,” and that she telephoned both the insurer’s counsel and the insurance company.

Ms. Ebrahim requested that the hearing be reconvened and she selected February 12, 2015 as a hearing date.³ Ms. Ebrahim explained that she recently started a new job and her employer would not be able to confirm that she has the time off until closer to the hearing date.

On February 11, 2015, Ms. Ebrahim contacted FSCO by e-mail⁴ and explained that: (a) the arbitration was initiated without her consent and she did not have any details of the hearing; (b) her husband is undergoing medical testing and she has taken time off work; (c) because she will need to continue to take time off work for her husband’s illness, she did not want to take time off work to attend the hearing on February 12, 2015. Ms. Ebrahim again asked what her options were; (d) she did not have any information as to the time and location of the hearing, or who the insurer’s representative is. In response, to Ms. Ebrahim’s e-mail, FSCO notified Ms. Ebrahim by e-mail of the location and time of the hearing, which was previously mailed to her in December 2014.

Ms. Ebrahim did not attend the arbitration hearing at 10:00 a.m. on Thursday, February 12, 2015. No one appeared on her behalf. RBC again requested that the arbitration proceed in the absence of Ms. Ebrahim. I telephoned Ms. Ebrahim at the two telephone numbers FSCO has on file for her but she did not answer the phone. I adjourned the hearing until 10:20 a.m. to allow time for Ms. Ebrahim to attend. At that time, I resumed the hearing in Ms. Ebrahim'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.

I am satisfied that Ms. Ebrahim received Notices of the hearings that were scheduled for October 16, 2014, and reconvened on February 12, 2015 because the Notices were sent to her by FSCO at her last known address and no correspondence sent to her by FSCO was returned to FSCO. In addition, Ms. Ebrahim confirmed in an e-mail to FSCO in December 2014 that her home address was the one that FSCO has on file for her. FSCO also e-mailed Ms. Ebrahim the address of the hearing location. In addition, I am satisfied that Ms. Ebrahim consented to the hearing date on February 12, 2015 because she is the one who selected it.

The burden of proof in this arbitration proceeding lies with Ms. Ebrahim. In order to establish her entitlement to benefits, she must provide evidence supporting her claims. She presented no evidence and has failed to meet the burden of proof. Consequently, her claims for statutory accident benefits, interest and expenses are dismissed.

EXPENSES:

RBC sought an order that Ms. Ebrahim pay its expenses in the amount of $3,005.00 inclusive of fees, disbursements and HST.

I have considered the criteria in the expense regulation, which are contained in Rule 75.2 of the Dispute Resolution Practice Code – Fourth Edition. The relevant criteria are:

Each party's degree of success in the outcome of 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 Ms. Ebrahim was unsuccessful in all of her 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 Ms. Ebrahim'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 Ms. Ebrahim's conduct. I find that RBC is entitled to its reasonable expenses in this arbitration based on its success.

RBC requested $3,005.00 in expenses for this file. This was comprised of 24.4 hours of time spent by lawyers calculated in accordance with the legal aid rate, 5.3 hours of time spent by a law clerk, and $153.17 in disbursements for printing. Twenty four hours of time is excessive. I fix expenses at $2,000.00, inclusive of disbursements and HST, payable by Ms. Ebrahim to RBC because RBC appeared at two hearings at which Ms. Ebrahim did not attend.

May 6, 2015

Maggy Murray Date

Arbitrator