Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 102
FSCO A15-002129
BETWEEN:
ROBIN MAGAYA
Applicant
and
PAFCO INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Marshall Schnapp
Heard: By telephone conference call on February 23, 2016
Appearances: Mr. Nev Khangura, Counsel, represented Mr. Robin Magaya Ms. Lisa Pool, Counsel, represented Pafco Insurance Company
Issues:
The Applicant, Mr. Robin Magaya, was injured in a motor vehicle accident on February 18, 2012 and sought accident benefits from Pafco Insurance Company (“Pafco”) payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, 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 Motion are:
Should Robin Magaya`s Application for Arbitration be dismissed?
Is Pafco entitled to its expenses in preparing for and attending the Arbitration proceedings from Robin Magaya, and if so, in what amount?
Result:
Robin Magaya `s Application for Arbitration is dismissed.
Pafco is entitled to expenses in the amount of $750.00.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held on on December 16, 2015 at which time Robin Magaya failed to appear. During the Pre-Hearing, Ms. Salman, licensed paralegal, who was Robin Magaya’s representative, advised that her firm had lost contact with Robin Magaya despite diligent efforts to contact him by telephone, in writing and in-person.
On December 16, 2015, I sent a letter to Robin Magaya at his last known address to advise him of the missed Pre-Hearing discussion. The letter provided Robin Magaya with notice that on February 23, 2016 at 9:30 a.m., should he not contact his legal representative, our office or participate in any further proceedings, I would consider Pafco’s request to dismiss his application and consider Pafco’s request for expenses.
The Dismissal
For the reasons that follow, Robin Magaya’s Application for Arbitration is dismissed.
As of February 23, 2016, I was unable to contact Robin Magaya, he had yet to contact his legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.
I am satisfied that Robin Magaya was given notice of all of the proceedings related to his Arbitration at her last known address.
Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“DRPC”), the Arbitration Hearing proceeded in his absence.
Robin Magaya bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Arbitration is dismissed.
EXPENSES:
Pafco is awarded expenses in the amount to $750.00 from Robin Magaya for having to prepare for and participate in the Arbitration proceedings. The amount is payable forthwith.
In making this award, I note that Pafco had to respond to the Application for Arbitration and attend two Pre-Hearings. Given the nature of the claim and the chronology listed above this amount of time is reasonable. I have also considered Rules 75.2 and 78(1) of the DRPC and found that the amount of to $750.00 payable by Robin Magaya is reasonable and appropriate for all fees, disbursements and inclusive of HST.
March 28, 2016
Marshall Schnapp Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 102
FSCO A15-002129
BETWEEN:
ROBIN MAGAYA
Applicant
and
PAFCO 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:
The Application for Arbitration is dismissed.
Robin Magaya shall pay $750.00 in expenses to Pafco.
March 28, 2016
Marshall Schnapp Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.