Mahmood v. TD General Insurance Company, 2016 ONFSCDRS 100

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

Neutral Citation: 2016 ONFSCDRS 100

FSCO A15-001682

BETWEEN:

ASIF MAHMOOD

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Sudabeh Mashkuri

Heard: March 11, 2016, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Mahmood Benjamin Sim-Tzung Lee for TD General Insurance Company

Issues:

The Applicant, Asif Mahmood, was injured in a motor vehicle accident on July 7, 2013. He 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 Mr. Mahmood applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Whether the Application for Arbitration should be dismissed?

Result:

The Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion of this case was held on February 9, 2016. Mr. Mahmood failed to appear. Mr. Lee, legal counsel for TD General was present. The pre-hearing for this case had been rescheduled twice previously. Mr. Mahmood failed to attend any of the scheduled pre-hearings. I was satisfied that the Applicant had been given notice for the pre-hearings and scheduled an arbitration hearing for this case.

The hearing for this matter was scheduled for March 11, 2016. At the commencement of the hearing on March 11, 2016, I adjourned the hearing for 20 minutes giving the Applicant an opportunity to appear. I also telephoned the Applicant at the last known telephone number on the file. I was unable to reach Mr. Mahmood via telephone. The Applicant failed to appear and the hearing in the matter proceeded in his 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 his claim. Hearing no evidence from Mr. Mahmood, and hearing no evidence from TD General that would support Mr. Mahmood's claim, I find that the Applicant has failed to meet the burden of proving his claim. Therefore, his claim for benefits is dismissed.

EXPENSES:

With regards to the expenses in this hearing, TD General has exercised diligence and pursued this matter without Mr. Mahmood appearing to advance his claim. 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 find that Mr. Mahmood having failed to appear on this matter, and not succeeding on the issues in dispute, is disentitled to expenses. TD General requested a nominal amount for expenses. Therefore, I fix TD General’s expenses in the amount of $500.00.

March 23, 2016

Sudabeh Mashkuri Date Arbitrator